§ 601. — Definitions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 5USC601]
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I--THE AGENCIES GENERALLY
CHAPTER 6--THE ANALYSIS OF REGULATORY FUNCTIONS
Sec. 601. Definitions
For purposes of this chapter--
(1) the term ``agency'' means an agency as defined in section
551(1) of this title;
(2) the term ``rule'' means any rule for which the agency
publishes a general notice of proposed rulemaking pursuant to
section 553(b) of this title, or any other law, including any rule
of general applicability governing Federal grants to State and local
governments for which the agency provides an opportunity for notice
and public comment, except that the term ``rule'' does not include a
rule of particular applicability relating to rates, wages, corporate
or financial structures or reorganizations thereof, prices,
facilities, appliances, services, or allowances therefor or to
valuations, costs or accounting, or practices relating to such
rates, wages, structures, prices, appliances, services, or
allowances;
(3) the term ``small business'' has the same meaning as the term
``small business concern'' under section 3 of the Small Business
Act, unless an agency, after consultation with the Office of
Advocacy of the Small Business Administration and after opportunity
for public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register;
(4) the term ``small organization'' means any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field, unless an agency establishes, after
opportunity for public comment, one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register;
(5) the term ``small governmental jurisdiction'' means
governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than
fifty thousand, unless an agency establishes, after opportunity for
public comment, one or more definitions of such term which are
appropriate to the activities of the agency and which are based on
such factors as location in rural or sparsely populated areas or
limited revenues due to the population of such jurisdiction, and
publishes such definition(s) in the Federal Register;
(6) the term ``small entity'' shall have the same meaning as the
terms ``small business'', ``small organization'' and ``small
governmental jurisdiction'' defined in paragraphs (3), (4) and (5)
of this section; and
(7) the term ``collection of information''--
(A) means the obtaining, causing to be obtained, soliciting,
or requiring the disclosure to third parties or the public, of
facts or opinions by or for an agency, regardless of form or
format, calling for either--
(i) answers to identical questions posed to, or
identical reporting or recordkeeping requirements imposed
on, 10 or more persons, other than agencies,
instrumentalities, or employees of the United States; or
(ii) answers to questions posed to agencies,
instrumentalities, or employees of the United States which
are to be used for general statistical purposes; and
(B) shall not include a collection of information described
under section 3518(c)(1) of title 44, United States Code.
(8) Recordkeeping requirement.--The term ``recordkeeping
requirement'' means a requirement imposed by an agency on persons to
maintain specified records.
(Added Pub. L. 96-354, Sec. 3(a), Sept. 19, 1980, 94 Stat. 1165; amended
Pub. L. 104-121, title II, Sec. 241(a)(2), Mar. 29, 1996, 110 Stat.
864.)
References in Text
Section 3 of the Small Business Act, referred to in par. (3), is
classified to section 632 of Title 15, Commerce and Trade.
Amendments
1996--Pars. (7), (8). Pub. L. 104-121 added pars. (7) and (8).
Effective Date of 1996 Amendment
Section 245 of title II of Pub. L. 104-121 provided that: ``This
subtitle [subtitle D (Secs. 241-245) of title II of Pub. L. 104-121,
amending this section and sections 603 to 605, 609, 611, and 612 of this
title and enacting provisions set out as a note under section 609 of
this title] shall become effective on the expiration of 90 days after
the date of enactment of this subtitle [Mar. 29, 1996], except that such
amendments shall not apply to interpretative rules for which a notice of
proposed rulemaking was published prior to the date of enactment.''
Effective Date
Section 4 of Pub. L. 96-354 provided that: ``The provisions of this
Act [enacting this chapter] shall take effect January 1, 1981, except
that the requirements of sections 603 and 604 of title 5, United States
Code (as added by section 3 of this Act) shall apply only to rules for
which a notice of proposed rulemaking is issued on or after January 1,
1981.''
Short Title of 1996 Amendment
Section 1 of Pub. L. 104-121 provided that: ``This Act [enacting
sections 801 to 808 of this title, section 657 of Title 15, Commerce and
Trade, and sections 1320b-15 and 1383e of Title 42, The Public Health
and Welfare, amending this section and sections 504, 603 to 605, 609,
611, and 612 of this title, sections 665e and 901 of Title 2, The
Congress, section 648 of Title 15, section 2412 of Title 28, Judiciary
and Judicial Procedure, section 3101 of Title 31, Money and Finance, and
sections 401, 402, 403, 405, 422, 423, 425, 902, 903, 1382, 1382c, 1383,
and 1383c of Title 42, enacting provisions set out as notes under this
section and sections 504, 609, and 801 of this title and sections 401,
402, 403, 405, 902, 1305, 1320b-15, and 1382 of Title 42, amending
provisions set out as a note under section 631 of Title 15, and
repealing provisions set out as a note under section 425 of Title 42]
may be cited as the `Contract with America Advancement Act of 1996'.''
Short Title
Section 1 of Pub. L. 96-354 provided: ``That this Act [enacting this
chapter] may be cited as the `Regulatory Flexibility Act'.''
Regulatory Enforcement Reports
Pub. L. 107-198, Sec. 4, June 28, 2002, 116 Stat. 732, provided
that:
``(a) Definition.--In this section, the term `agency' has the
meaning given that term under section 551 of title 5, United States
Code.
``(b) In General.--
``(1) Initial report.--Not later than December 31, 2003, each
agency shall submit an initial report to--
``(A) the chairpersons and ranking minority members of--
``(i) the Committee on Governmental Affairs and the
Committee on Small Business and Entrepreneurship of the
Senate; and
``(ii) the Committee on Government Reform and the
Committee on Small Business of the House of Representatives;
and
``(B) the Small Business and Agriculture Regulatory
Enforcement Ombudsman designated under section 30(b) of the
Small Business Act (15 U.S.C. 657(b)).
``(2) Final report.--Not later than December 31, 2004, each
agency shall submit a final report to the members and officer
described under paragraph (1) (A) and (B).
``(3) Content.--The initial report under paragraph (1) shall
include information with respect to the 1-year period beginning on
October 1, 2002, and the final report under paragraph (2) shall
include information with respect to the 1-year period beginning on
October 1, 2003, on each of the following:
``(A) The number of enforcement actions in which a civil
penalty is assessed.
``(B) The number of enforcement actions in which a civil
penalty is assessed against a small entity.
``(C) The number of enforcement actions described under
subparagraphs (A) and (B) in which the civil penalty is reduced
or waived.
``(D) The total monetary amount of the reductions or waivers
referred to under subparagraph (C).
``(4) Definitions in reports.--Each report under this subsection
shall include definitions selected at the discretion of the
reporting agency of the terms `enforcement actions', `reduction or
waiver', and `small entity' as used in the report.''
Assessment of Federal Regulations and Policies on Families
Pub. L. 105-277, div. A, Sec. 101(h) [title VI, Sec. 654], Oct. 21,
1998, 112 Stat. 2681-480, 2681-528, provided that:
``(a) Purposes.--The purposes of this section are to--
``(1) require agencies to assess the impact of proposed agency
actions on family well-being; and
``(2) improve the management of executive branch agencies.
``(b) Definitions.--In this section--
``(1) the term `agency' has the meaning given the term
`Executive agency' by section 105 of title 5, United States Code,
except such term does not include the General Accounting Office; and
``(2) the term `family' means--
``(A) a group of individuals related by blood, marriage,
adoption, or other legal custody who live together as a single
household; and
``(B) any individual who is not a member of such group, but
who is related by blood, marriage, or adoption to a member of
such group, and over half of whose support in a calendar year is
received from such group.
``(c) Family Policymaking Assessment.--Before implementing policies
and regulations that may affect family well-being, each agency shall
assess such actions with respect to whether--
``(1) the action strengthens or erodes the stability or safety
of the family and, particularly, the marital commitment;
``(2) the action strengthens or erodes the authority and rights
of parents in the education, nurture, and supervision of their
children;
``(3) the action helps the family perform its functions, or
substitutes governmental activity for the function;
``(4) the action increases or decreases disposable income or
poverty of families and children;
``(5) the proposed benefits of the action justify the financial
impact on the family;
``(6) the action may be carried out by State or local government
or by the family; and
``(7) the action establishes an implicit or explicit policy
concerning the relationship between the behavior and personal
responsibility of youth, and the norms of society.
``(d) Governmentwide Family Policy Coordination and Review.--
``(1) Certification and rationale.--With respect to each
proposed policy or regulation that may affect family well-being, the
head of each agency shall--
``(A) submit a written certification to the Director of the
Office of Management and Budget and to Congress that such policy
or regulation has been assessed in accordance with this section;
and
``(B) provide an adequate rationale for implementation of
each policy or regulation that may negatively affect family
well-being.
``(2) Office of management and budget.--The Director of the
Office of Management and Budget shall--
``(A) ensure that policies and regulations proposed by
agencies are implemented consistent with this section; and
``(B) compile, index, and submit annually to the Congress
the written certifications received pursuant to paragraph
(1)(A).
``(3) Office of policy development.--The Office of Policy
Development shall--
``(A) assess proposed policies and regulations in accordance
with this section;
``(B) provide evaluations of policies and regulations that
may affect family well-being to the Director of the Office of
Management and Budget; and
``(C) advise the President on policy and regulatory actions
that may be taken to strengthen the institutions of marriage and
family in the United States.
``(e) Assessments Upon Request by Members of Congress.--Upon request
by a Member of Congress relating to a proposed policy or regulation, an
agency shall conduct an assessment in accordance with subsection (c),
and shall provide a certification and rationale in accordance with
subsection (d).
``(f) Judicial Review.--This section is not intended to create any
right or benefit, substantive or procedural, enforceable at law by a
party against the United States, its agencies, its officers, or any
person.''
Small Business Regulatory Fairness
Sections 201 to 224 of title II of Pub. L. 104-121 provided that:
``SEC. 201. SHORT TITLE.
``This title [enacting sections 801 to 808 of this title and section
657 of Title 15, Commerce and Trade, amending this section, sections
504, 603 to 605, 609, 611, and 612 of this title, section 648 of Title
15, and section 2412 of Title 28, Judiciary and Judicial Procedure,
enacting provisions set out as notes under this section and sections
504, 609, and 801 of this title, and amending provisions set out as a
note under section 631 of Title 15] may be cited as the `Small Business
Regulatory Enforcement Fairness Act of 1996'.
``SEC. 202. FINDINGS.
``Congress finds that--
``(1) a vibrant and growing small business sector is critical to
creating jobs in a dynamic economy;
``(2) small businesses bear a disproportionate share of
regulatory costs and burdens;
``(3) fundamental changes that are needed in the regulatory and
enforcement culture of Federal agencies to make agencies more
responsive to small business can be made without compromising the
statutory missions of the agencies;
``(4) three of the top recommendations of the 1995 White House
Conference on Small Business involve reforms to the way government
regulations are developed and enforced, and reductions in government
paperwork requirements;
``(5) the requirements of chapter 6 of title 5, United States
Code, have too often been ignored by government agencies, resulting
in greater regulatory burdens on small entities than necessitated by
statute; and
``(6) small entities should be given the opportunity to seek
judicial review of agency actions required by chapter 6 of title 5,
United States Code.
``SEC. 203. PURPOSES.
``The purposes of this title are--
``(1) to implement certain recommendations of the 1995 White
House Conference on Small Business regarding the development and
enforcement of Federal regulations;
``(2) to provide for judicial review of chapter 6 of title 5,
United States Code;
``(3) to encourage the effective participation of small
businesses in the Federal regulatory process;
``(4) to simplify the language of Federal regulations affecting
small businesses;
``(5) to develop more accessible sources of information on
regulatory and reporting requirements for small businesses;
``(6) to create a more cooperative regulatory environment among
agencies and small businesses that is less punitive and more
solution-oriented; and
``(7) to make Federal regulators more accountable for their
enforcement actions by providing small entities with a meaningful
opportunity for redress of excessive enforcement activities.
``subtitle a--regulatory compliance simplification
``SEC. 211. DEFINITIONS.
``For purposes of this subtitle--
``(1) the terms `rule' and `small entity' have the same meanings
as in section 601 of title 5, United States Code;
``(2) the term `agency' has the same meaning as in section 551
of title 5, United States Code; and
``(3) the term `small entity compliance guide' means a document
designated as such by an agency.
``SEC. 212. COMPLIANCE GUIDES.
``(a) Compliance Guide.--For each rule or group of related rules for
which an agency is required to prepare a final regulatory flexibility
analysis under section 604 of title 5, United States Code, the agency
shall publish one or more guides to assist small entities in complying
with the rule, and shall designate such publications as `small entity
compliance guides'. The guides shall explain the actions a small entity
is required to take to comply with a rule or group of rules. The agency
shall, in its sole discretion, taking into account the subject matter of
the rule and the language of relevant statutes, ensure that the guide is
written using sufficiently plain language likely to be understood by
affected small entities. Agencies may prepare separate guides covering
groups or classes of similarly affected small entities, and may
cooperate with associations of small entities to develop and distribute
such guides.
``(b) Comprehensive Source of Information.--Agencies shall cooperate
to make available to small entities through comprehensive sources of
information, the small entity compliance guides and all other available
information on statutory and regulatory requirements affecting small
entities.
``(c) Limitation on Judicial Review.--An agency's small entity
compliance guide shall not be subject to judicial review, except that in
any civil or administrative action against a small entity for a
violation occurring after the effective date of this section, the
content of the small entity compliance guide may be considered as
evidence of the reasonableness or appropriateness of any proposed fines,
penalties or damages.
``SEC. 213. INFORMAL SMALL ENTITY GUIDANCE.
``(a) General.--Whenever appropriate in the interest of
administering statutes and regulations within the jurisdiction of an
agency which regulates small entities, it shall be the practice of the
agency to answer inquiries by small entities concerning information on,
and advice about, compliance with such statutes and regulations,
interpreting and applying the law to specific sets of facts supplied by
the small entity. In any civil or administrative action against a small
entity, guidance given by an agency applying the law to facts provided
by the small entity may be considered as evidence of the reasonableness
or appropriateness of any proposed fines, penalties or damages sought
against such small entity.
``(b) Program.--Each agency regulating the activities of small
entities shall establish a program for responding to such inquiries no
later than 1 year after enactment of this section [Mar. 29, 1996],
utilizing existing functions and personnel of the agency to the extent
practicable.
``(c) Reporting.--Each agency regulating the activities of small
business shall report to the Committee on Small Business and Committee
on Governmental Affairs of the Senate and the Committee on Small
Business and Committee on the Judiciary of the House of Representatives
no later than 2 years after the date of the enactment of this section on
the scope of the agency's program, the number of small entities using
the program, and the achievements of the program to assist small entity
compliance with agency regulations.
``SEC. 214. SERVICES OF SMALL BUSINESS DEVELOPMENT CENTERS.
``(a) [Amended section 648 of Title 15, Commerce and Trade.]
``(b) Nothing in this Act [see Short Title of 1996 Amendment note,
above] in any way affects or limits the ability of other technical
assistance or extension programs to perform or continue to perform
services related to compliance assistance.
``SEC. 215. COOPERATION ON GUIDANCE.
``Agencies may, to the extent resources are available and where
appropriate, in cooperation with the States, develop guides that fully
integrate requirements of both Federal and State regulations where
regulations within an agency's area of interest at the Federal and State
levels impact small entities. Where regulations vary among the States,
separate guides may be created for separate States in cooperation with
State agencies.
``SEC. 216. EFFECTIVE DATE.
``This subtitle and the amendments made by this subtitle shall take
effect on the expiration of 90 days after the date of enactment of this
subtitle [Mar. 29, 1996].
``subtitle b--regulatory enforcement reforms
``SEC. 221. DEFINITIONS.
``For purposes of this subtitle--
``(1) the terms `rule' and `small entity' have the same meanings
as in section 601 of title 5, United States Code;
``(2) the term `agency' has the same meaning as in section 551
of title 5, United States Code; and
``(3) the term `small entity compliance guide' means a document
designated as such by an agency.
``SEC. 222. SMALL BUSINESS AND AGRICULTURE ENFORCEMENT OMBUDSMAN.
``[Enacted section 657 of Title 15, Commerce and Trade.]
``SEC. 223. RIGHTS OF SMALL ENTITIES IN ENFORCEMENT ACTIONS.
``(a) In General.--Each agency regulating the activities of small
entities shall establish a policy or program within 1 year of enactment
of this section [Mar. 29, 1996] to provide for the reduction, and under
appropriate circumstances for the waiver, of civil penalties for
violations of a statutory or regulatory requirement by a small entity.
Under appropriate circumstances, an agency may consider ability to pay
in determining penalty assessments on small entities.
``(b) Conditions and Exclusions.--Subject to the requirements or
limitations of other statutes, policies or programs established under
this section shall contain conditions or exclusions which may include,
but shall not be limited to--
``(1) requiring the small entity to correct the violation within
a reasonable correction period;
``(2) limiting the applicability to violations discovered
through participation by the small entity in a compliance assistance
or audit program operated or supported by the agency or a State;
``(3) excluding small entities that have been subject to
multiple enforcement actions by the agency;
``(4) excluding violations involving willful or criminal
conduct;
``(5) excluding violations that pose serious health, safety or
environmental threats; and
``(6) requiring a good faith effort to comply with the law.
``(c) Reporting.--Agencies shall report to the Committee on Small
Business and Committee on Governmental Affairs of the Senate and the
Committee on Small Business and Committee on Judiciary of the House of
Representatives no later than 2 years after the date of enactment of
this section [Mar. 29, 1996] on the scope of their program or policy,
the number of enforcement actions against small entities that qualified
or failed to qualify for the program or policy, and the total amount of
penalty reductions and waivers.
``SEC. 224. EFFECTIVE DATE.
``This subtitle and the amendments made by this subtitle shall take
effect on the expiration of 90 days after the date of enactment of this
subtitle [Mar. 29, 1996].''
Effects of Deregulation On Rural America
Pub. L. 101-574, title III, Sec. 309, Nov. 15, 1990, 104 Stat. 2831,
provided that:
``(a) Study.--The Office of Technology Assessment shall conduct a
study of the effects of deregulation on the economic vitality of rural
areas. Such study shall include, but not be limited to, a thorough
analysis of the impact of deregulation on--
``(1) the number of loans made by financial institutions to
small businesses located in rural areas, a change in the level of
security interests required for such loans, and the cost of such
loans to rural small businesses for creation and expansion;
``(2) airline service in cities and towns with populations of
100,000 or less, including airline fare, the number of flights
available, number of seats available, scheduling of flights,
continuity of service, number of markets being served by large and
small airlines, availability of nonstop service, availability of
direct service, number of economic cancellations, number of flight
delays, the types of airplanes used, and time delays;
``(3) the availability and costs of bus, rail and trucking
transportation for businesses located in rural areas;
``(4) the availability and costs of state-of-the-art
telecommunications services to small businesses located in rural
areas, including voice telephone service, private (not multiparty)
telephone service, reliable facsimile document and data
transmission, competitive long distance carriers, cellular (mobile)
telephone service, multifrequency tone signaling services such as
touchtone services, custom-calling services (including three-way
calling, call forwarding, and call waiting), voicemail services, and
911 emergency services with automatic number identification;
``(5) the availability and costs to rural schools, hospitals,
and other public facilities, of sending and receiving audio and
visual signals in cases where such ability will enhance the quality
of services provided to rural residents and businesses; and
``(6) the availability and costs of services enumerated in
paragraphs (1) through (5) in urban areas compared to rural areas.
``(b) Report.--Not later than 12 months after the date of enactment
of this title [Nov. 15, 1990], the Office of Technology Assessment shall
transmit to Congress a report on the results of the study conducted
under subsection (a) together with its recommendations on how to address
the problems facing small businesses in rural areas.''
Congressional Findings and Declaration of Purpose
Section 2 of Pub. L. 96-354 provided that:
``(a) The Congress finds and declares that--
``(1) when adopting regulations to protect the health, safety
and economic welfare of the Nation, Federal agencies should seek to
achieve statutory goals as effectively and efficiently as possible
without imposing unnecessary burdens on the public;
``(2) laws and regulations designed for application to large
scale entities have been applied uniformly to small businesses,
small organizations, and small governmental jurisdictions even
though the problems that gave rise to government action may not have
been caused by those smaller entities;
``(3) uniform Federal regulatory and reporting requirements have
in numerous instances imposed unnecessary and disproportionately
burdensome demands including legal, accounting and consulting costs
upon small businesses, small organizations, and small governmental
jurisdictions with limited resources;
``(4) the failure to recognize differences in the scale and
resources of regulated entities has in numerous instances adversely
affected competition in the marketplace, discouraged innovation and
restricted improvements in productivity;
``(5) unnecessary regulations create entry barriers in many
industries and discourage potential entrepreneurs from introducing
beneficial products and processes;
``(6) the practice of treating all regulated businesses,
organizations, and governmental jurisdictions as equivalent may lead
to inefficient use of regulatory agency resources, enforcement
problems, and, in some cases, to actions inconsistent with the
legislative intent of health, safety, environmental and economic
welfare legislation;
``(7) alternative regulatory approaches which do not conflict
with the stated objectives of applicable statutes may be available
which minimize the significant economic impact of rules on small
businesses, small organizations, and small governmental
jurisdictions;
``(8) the process by which Federal regulations are developed and
adopted should be reformed to require agencies to solicit the ideas
and comments of small businesses, small organizations, and small
governmental jurisdictions to examine the impact of proposed and
existing rules on such entities, and to review the continued need
for existing rules.
``(b) It is the purpose of this Act [enacting this chapter] to
establish as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions subject
to regulation. To achieve this principle, agencies are required to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions to assure that such proposals are given
serious consideration.''
Executive Order No. 12291
Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, which established
requirements for agencies to follow in promulgating regulations,
reviewing existing regulations, and developing legislative proposals
concerning regulation, was revoked by Ex. Ord. No. 12866, Sec. 11, Sept.
30, 1993, 58 F.R. 51735, set out below.
Executive Order No. 12498
Ex. Ord. No. 12498, Jan. 4, 1985, 50 F.R. 1036, which established a
regulatory planning process by which to develop and publish a regulatory
program for each year, was revoked by Ex. Ord. No. 12866, Sec. 11, Sept.
30, 1993, 58 F.R. 51735, set out below.
Executive Order No. 12606
Ex. Ord. No. 12606, Sept. 2, 1987, 52 F.R. 34188, which provided
criteria for executive departments and agencies to follow in making
policies and regulations to ensure consideration of effect of those
policies and regulations on autonomy and rights of the family, was
revoked by Ex. Ord. No. 13045, Sec. 7, Apr. 21, 1997, 62 F.R. 19888, set
out as a note under section 4321 of Title 42, The Public Health and
Welfare.
Executive Order No. 12612
Ex. Ord. No. 12612, Oct. 26, 1987, 52 F.R. 41685, which set out
fundamental federalism principles and policymaking criteria for
executive departments and agencies to follow in formulating and
implementing policies and limited the instances when executive
departments and agencies could construe a Federal statute to preempt
State law, was revoked by Ex. Ord. No. 13132, Sec. 10(b), Aug. 4, 1999,
64 F.R. 43259, set out below.
Ex. Ord. No. 12630. Governmental Actions and Interference With
Constitutionally Protected Property Rights
Ex. Ord. No. 12630, Mar. 15, 1988, 53 F.R. 8859, provided:
By the authority vested in me as President by the Constitution and
laws of the United States of America, and in order to ensure that
government actions are undertaken on a well-reasoned basis with due
regard for fiscal accountability, for the financial impact of the
obligations imposed on the Federal government by the Just Compensation
Clause of the Fifth Amendment, and for the Constitution, it is hereby
ordered as follows:
Section 1. Purpose. (a) The Fifth Amendment of the United States
Constitution provides that private property shall not be taken for
public use without just compensation. Government historically has used
the formal exercise of the power of eminent domain, which provides
orderly processes for paying just compensation, to acquire private
property for public use. Recent Supreme Court decisions, however, in
reaffirming the fundamental protection of private property rights
provided by the Fifth Amendment and in assessing the nature of
governmental actions that have an impact on constitutionally protected
property rights, have also reaffirmed that governmental actions that do
not formally invoke the condemnation power, including regulations, may
result in a taking for which just compensation is required.
(b) Responsible fiscal management and fundamental principles of good
government require that government decision-makers evaluate carefully
the effect of their administrative, regulatory, and legislative actions
on constitutionally protected property rights. Executive departments and
agencies should review their actions carefully to prevent unnecessary
takings and should account in decision-making for those takings that are
necessitated by statutory mandate.
(c) The purpose of this Order is to assist Federal departments and
agencies in undertaking such reviews and in proposing, planning, and
implementing actions with due regard for the constitutional protections
provided by the Fifth Amendment and to reduce the risk of undue or
inadvertent burdens on the public fisc resulting from lawful
governmental action. In furtherance of the purpose of this Order, the
Attorney General shall, consistent with the principles stated herein and
in consultation with the Executive departments and agencies, promulgate
Guidelines for the Evaluation of Risk and Avoidance of Unanticipated
Takings to which each Executive department or agency shall refer in
making the evaluations required by this Order or in otherwise taking any
action that is the subject of this Order. The Guidelines shall be
promulgated no later than May 1, 1988, and shall be disseminated to all
units of each Executive department and agency no later than July 1,
1988. The Attorney General shall, as necessary, update these guidelines
to reflect fundamental changes in takings law occurring as a result of
Supreme Court decisions.
Sec. 2. Definitions. For the purpose of this Order: (a) ``Policies
that have takings implications'' refers to Federal regulations, proposed
Federal regulations, proposed Federal legislation, comments on proposed
Federal legislation, or other Federal policy statements that, if
implemented or enacted, could effect a taking, such as rules and
regulations that propose or implement licensing, permitting, or other
condition requirements or limitations on private property use, or that
require dedications or exactions from owners of private property.
``Policies that have takings implications'' does not include:
(1) Actions abolishing regulations, discontinuing governmental
programs, or modifying regulations in a manner that lessens interference
with the use of private property;
(2) Actions taken with respect to properties held in trust by the
United States or in preparation for or during treaty negotiations with
foreign nations;
(3) Law enforcement actions involving seizure, for violations of
law, of property for forfeiture or as evidence in criminal proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and State
or local land-use planning agencies regarding planned or proposed State
or local actions regulating private property regardless of whether such
communications are initiated by a Federal agency or department or are
undertaken in response to an invitation by the State or local authority;
(6) The placement of military facilities or military activities
involving the use of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement
functions thereunder) but not including the U.S. Army Corps of Engineers
civil works program.
(b) Private property refers to all property protected by the Just
Compensation Clause of the Fifth Amendment.
(c) ``Actions'' refers to proposed Federal regulations, proposed
Federal legislation, comments on proposed Federal legislation,
applications of Federal regulations to specific property, or Federal
governmental actions physically invading or occupying private property,
or other policy statements or actions related to Federal regulation or
direct physical invasion or occupancy, but does not include:
(1) Actions in which the power of eminent domain is formally
exercised;
(2) Actions taken with respect to properties held in trust by the
United States or in preparation for or during treaty negotiations with
foreign nations;
(3) Law enforcement actions involving seizure, for violations of
law, of property for forfeiture or as evidence in criminal proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and State
or local land-use planning agencies regarding planned or proposed State
or local actions regulating private property regardless of whether such
communications are initiated by a Federal agency or department or are
undertaken in response to an invitation by the State or local authority;
(6) The placement of military facilities or military activities
involving the use of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement
functions thereunder), but not including the U.S. Army Corps of
Engineers civil works program.
Sec. 3. General Principles. In formulating or implementing policies
that have takings implications, each Executive department and agency
shall be guided by the following general principles:
(a) Governmental officials should be sensitive to, anticipate, and
account for, the obligations imposed by the Just Compensation Clause of
the Fifth Amendment in planning and carrying out governmental actions so
that they do not result in the imposition of unanticipated or undue
additional burdens on the public fisc.
(b) Actions undertaken by governmental officials that result in a
physical invasion or occupancy of private property, and regulations
imposed on private property that substantially affect its value or use,
may constitute a taking of property. Further, governmental action may
amount to a taking even though the action results in less than a
complete deprivation of all use or value, or of all separate and
distinct interests in the same private property and even if the action
constituting a taking is temporary in nature.
(c) Government officials whose actions are taken specifically for
purposes of protecting public health and safety are ordinarily given
broader latitude by courts before their actions are considered to be
takings. However, the mere assertion of a public health and safety
purpose is insufficient to avoid a taking. Actions to which this Order
applies asserted to be for the protection of public health and safety,
therefore, should be undertaken only in response to real and substantial
threats to public health and safety, be designed to advance
significantly the health and safety purpose, and be no greater than is
necessary to achieve the health and safety purpose.
(d) While normal governmental processes do not ordinarily effect
takings, undue delays in decision-making during which private property
use if interfered with carry a risk of being held to be takings.
Additionally, a delay in processing may increase significantly the size
of compensation due if a taking is later found to have occurred.
(e) The Just Compensation Clause is self-actuating, requiring that
compensation be paid whenever governmental action results in a taking of
private property regardless of whether the underlying authority for the
action contemplated a taking or authorized the payment of compensation.
Accordingly, governmental actions that may have a significant impact on
the use or value of private property should be scrutinized to avoid
undue or unplanned burdens on the public fisc.
Sec. 4. Department and Agency Action. In addition to the fundamental
principles set forth in Section 3, Executive departments and agencies
shall adhere, to the extent permitted by law, to the following criteria
when implementing policies that have takings implications:
(a) When an Executive department or agency requires a private party
to obtain a permit in order to undertake a specific use of, or action
with respect to, private property, any conditions imposed on the
granting of a permit shall:
(1) Serve the same purpose that would have been served by a
prohibition of the use or action; and
(2) Substantially advance that purpose.
(b) When a proposed action would place a restriction on a use of
private property, the restriction imposed on the use shall not be
disproportionate to the extent to which the use contributes to the
overall problem that the restriction is imposed to redress.
(c) When a proposed action involves a permitting process or any
other decision-making process that will interfere with, or otherwise
prohibit, the use of private property pending the completion of the
process, the duration of the process shall be kept to the minimum
necessary.
(d) Before undertaking any proposed action regulating private
property use for the protection of public health or safety, the
Executive department or agency involved shall, in internal deliberative
documents and any submissions to the Director of the Office of
Management and Budget that are required:
(1) Identify clearly, with as much specificity as possible, the
public health or safety risk created by the private property use that is
the subject of the proposed action;
(2) Establish that such proposed action substantially advances the
purpose of protecting public health and safety against the specifically
identified risk;
(3) Establish to the extent possible that the restrictions imposed
on the private property are not disproportionate to the extent to which
the use contributes to the overall risk; and
(4) Estimate, to the extent possible, the potential cost to the
government in the event that a court later determines that the action
constituted a taking.
In instances in which there is an immediate threat to health and
safety that constitutes an emergency requiring immediate response, this
analysis may be done upon completion of the emergency action.
Sec. 5. Executive Department and Agency Implementation. (a) The head
of each Executive department and agency shall designate an official to
be responsible for ensuring compliance with this Order with respect to
the actions of the department or agency.
(b) Executive departments and agencies shall, to the extent
permitted by law, identify the takings implications of proposed
regulatory actions and address the merits of those actions in light of
the identified takings implications, if any, in all required submissions
made to the Office of Management and Budget. Significant takings
implications should also be identified and discussed in notices of
proposed rule-making and messages transmitting legislative proposals to
the Congress stating the departments' and agencies' conclusions on the
takings issues.
(c) Executive departments and agencies shall identify each existing
Federal rule and regulation against which a takings award has been made
or against which a takings claim is pending including the amount of each
claim or award. A ``takings'' award has been made or a ``takings'' claim
pending if the award was made, or the pending claim brought, pursuant to
the Just Compensation Clause of the Fifth Amendment. An itemized
compilation of all such awards made in Fiscal Years 1985, 1986, and 1987
and all such pending claims shall be submitted to the Director, Office
of Management and Budget, on or before May 16, 1988.
(d) Each Executive department and agency shall submit annually to
the Director, Office of Management and Budget, and to the Attorney
General an itemized compilation of all awards of just compensation
entered against the United States for takings, including awards of
interest as well as monies paid pursuant to the provisions of the
Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970, 42 U.S.C. 4601.
(e)(1) The Director, Office of Management and Budget, and the
Attorney General shall each, to the extent permitted by law, take action
to ensure that the policies of the Executive departments and agencies
are consistent with the principles, criteria, and requirements stated in
Sections 1 through 5 of this Order, and the Office of Management and
Budget shall take action to ensure that all takings awards levied
against agencies are properly accounted for in agency budget
submissions.
(2) In addition to the guidelines required by Section 1 of this
Order, the Attorney General shall, in consultation with each Executive
department and agency to which this Order applies, promulgate such
supplemental guidelines as may be appropriate to the specific
obligations of that department or agency.
Sec. 6. Judicial Review. This Order is intended only to improve the
internal management of the Executive branch and is not intended to
create any right or benefit, substantive or procedural, enforceable at
law by a party against the United States, its agencies, its officers, or
any person.
Ronald Reagan.
Ex. Ord. No. 12861. Elimination of One-Half of Executive Branch Internal
Regulations
Ex. Ord. No. 12861, Sept. 11, 1993, 58 F.R. 48255, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including section 301 of title
3, United States Code, and section 1111 of title 31, United States Code,
and to cut 50 percent of the executive branch's internal regulations in
order to streamline and improve customer service to the American people,
it is hereby ordered as follows:
Section 1. Regulatory Reductions. Each executive department and
agency shall undertake to eliminate not less than 50 percent of its
civilian internal management regulations that are not required by law
within 3 years of the effective date of this order. An agency internal
management regulation, for the purposes of this order, means an agency
directive or regulation that pertains to its organization, management,
or personnel matters. Reductions in agency internal management
regulations shall be concentrated in areas that will result in the
greatest improvement in productivity, streamlining of operations, and
improvement in customer service.
Sec. 2. Coverage. This order applies to all executive branch
departments and agencies.
Sec. 3. Implementation. The Director of the Office of Management and
Budget shall issue instructions regarding the implementation of this
order, including exemptions necessary for the delivery of essential
services and compliance with applicable law.
Sec. 4. Independent Agencies. All independent regulatory commissions
and agencies are requested to comply with the provisions of this order.
William J. Clinton.
Ex. Ord. No. 12866. Regulatory Planning and Review
Ex. Ord. No. 12866, Sept. 30, 1993, 58 F.R. 51735, as amended by Ex.
Ord. No. 13258, Feb. 26, 2002, 67 F.R. 9385, provided:
The American people deserve a regulatory system that works for them,
not against them: a regulatory system that protects and improves their
health, safety, environment, and well-being and improves the performance
of the economy without imposing unacceptable or unreasonable costs on
society; regulatory policies that recognize that the private sector and
private markets are the best engine for economic growth; regulatory
approaches that respect the role of State, local, and tribal
governments; and regulations that are effective, consistent, sensible,
and understandable. We do not have such a regulatory system today.
With this Executive order, the Federal Government begins a program
to reform and make more efficient the regulatory process. The objectives
of this Executive order are to enhance planning and coordination with
respect to both new and existing regulations; to reaffirm the primacy of
Federal agencies in the regulatory decision-making process; to restore
the integrity and legitimacy of regulatory review and oversight; and to
make the process more accessible and open to the public. In pursuing
these objectives, the regulatory process shall be conducted so as to
meet applicable statutory requirements and with due regard to the
discretion that has been entrusted to the Federal agencies.
Accordingly, by the authority vested in me as President by the
Constitution and the laws of the United States of America, it is hereby
ordered as follows:
Section 1. Statement of Regulatory Philosophy and Principles.
(a) The Regulatory Philosophy. Federal agencies should promulgate
only such regulations as are required by law, are necessary to interpret
the law, or are made necessary by compelling public need, such as
material failures of private markets to protect or improve the health
and safety of the public, the environment, or the well-being of the
American people. In deciding whether and how to regulate, agencies
should assess all costs and benefits of available regulatory
alternatives, including the alternative of not regulating. Costs and
benefits shall be understood to include both quantifiable measures (to
the fullest extent that these can be usefully estimated) and qualitative
measures of costs and benefits that are difficult to quantify, but
nevertheless essential to consider. Further, in choosing among
alternative regulatory approaches, agencies should select those
approaches that maximize net benefits (including potential economic,
environmental, public health and safety, and other advantages;
distributive impacts; and equity), unless a statute requires another
regulatory approach.
(b) The Principles of Regulation. To ensure that the agencies'
regulatory programs are consistent with the philosophy set forth above,
agencies should adhere to the following principles, to the extent
permitted by law and where applicable:
(1) Each agency shall identify the problem that it intends to
address (including, where applicable, the failures of private markets or
public institutions that warrant new agency action) as well as assess
the significance of that problem.
(2) Each agency shall examine whether existing regulations (or other
law) have created, or contributed to, the problem that a new regulation
is intended to correct and whether those regulations (or other law)
should be modified to achieve the intended goal of regulation more
effectively.
(3) Each agency shall identify and assess available alternatives to
direct regulation, including providing economic incentives to encourage
the desired behavior, such as user fees or marketable permits, or
providing information upon which choices can be made by the public.
(4) In setting regulatory priorities, each agency shall consider, to
the extent reasonable, the degree and nature of the risks posed by
various substances or activities within its jurisdiction.
(5) When an agency determines that a regulation is the best
available method of achieving the regulatory objective, it shall design
its regulations in the most cost-effective manner to achieve the
regulatory objective. In doing so, each agency shall consider incentives
for innovation, consistency, predictability, the costs of enforcement
and compliance (to the government, regulated entities, and the public),
flexibility, distributive impacts, and equity.
(6) Each agency shall assess both the costs and the benefits of the
intended regulation and, recognizing that some costs and benefits are
difficult to quantify, propose or adopt a regulation only upon a
reasoned determination that the benefits of the intended regulation
justify its costs.
(7) Each agency shall base its decisions on the best reasonably
obtainable scientific, technical, economic, and other information
concerning the need for, and consequences of, the intended regulation.
(8) Each agency shall identify and assess alternative forms of
regulation and shall, to the extent feasible, specify performance
objectives, rather than specifying the behavior or manner of compliance
that regulated entities must adopt.
(9) Wherever feasible, agencies shall seek views of appropriate
State, local, and tribal officials before imposing regulatory
requirements that might significantly or uniquely affect those
governmental entities. Each agency shall assess the effects of Federal
regulations on State, local, and tribal governments, including
specifically the availability of resources to carry out those mandates,
and seek to minimize those burdens that uniquely or significantly affect
such governmental entities, consistent with achieving regulatory
objectives. In addition, as appropriate, agencies shall seek to
harmonize Federal regulatory actions with related State, local, and
tribal regulatory and other governmental functions.
(10) Each agency shall avoid regulations that are inconsistent,
incompatible, or duplicative with its other regulations or those of
other Federal agencies.
(11) Each agency shall tailor its regulations to impose the least
burden on society, including individuals, businesses of differing sizes,
and other entities (including small communities and governmental
entities), consistent with obtaining the regulatory objectives, taking
into account, among other things, and to the extent practicable, the
costs of cumulative regulations.
(12) Each agency shall draft its regulations to be simple and easy
to understand, with the goal of minimizing the potential for uncertainty
and litigation arising from such uncertainty.
Sec. 2. Organization. An efficient regulatory planning and review
process is vital to ensure that the Federal Government's regulatory
system best serves the American people.
(a) The Agencies. Because Federal agencies are the repositories of
significant substantive expertise and experience, they are responsible
for developing regulations and assuring that the regulations are
consistent with applicable law, the President's priorities, and the
principles set forth in this Executive order.
(b) The Office of Management and Budget. Coordinated review of
agency rulemaking is necessary to ensure that regulations are consistent
with applicable law, the President's priorities, and the principles set
forth in this Executive order, and that decisions made by one agency do
not conflict with the policies or actions taken or planned by another
agency. The Office of Management and Budget (OMB) shall carry out that
review function. Within OMB, the Office of Information and Regulatory
Affairs (OIRA) is the repository of expertise concerning regulatory
issues, including methodologies and procedures that affect more than one
agency, this Executive order, and the President's regulatory policies.
To the extent permitted by law, OMB shall provide guidance to agencies
and assist the President and regulatory policy advisors to the President
in regulatory planning and shall be the entity that reviews individual
regulations, as provided by this Executive order.
(c) Assistance. In fulfilling his responsibilities under this
Executive order, the President shall be assisted by the regulatory
policy advisors within the Executive Office of the President and by such
agency officials and personnel as the President may, from time to time,
consult.
Sec. 3. Definitions. For purposes of this Executive order:
(a) ``Advisors'' refers to such regulatory policy advisors to the
President as the President may from time to time consult, including,
among others: (1) the Director of OMB; (2) the Chair (or another member)
of the Council of Economic Advisers; (3) the Assistant to the President
for Economic Policy; (4) the Assistant to the President for Domestic
Policy; (5) the Assistant to the President for National Security
Affairs; (6) the Director of the Office of Science and Technology
Policy; (7) the Deputy Assistant to the President and Director for
Intergovernmental Affairs; (8) the Assistant to the President and Staff
Secretary; (9) the Assistant to the President and Chief of Staff to the
Vice President; (10) the Assistant to the President and Counsel to the
President; (11) the Chairman of the Council on Environmental Quality and
Director of the Office of Environmental Quality; (12) the Assistant to
the President for Homeland Security; and (13) the Administrator of OIRA,
who also shall coordinate communications relating to this Executive
order among the agencies, OMB, the other Advisors, and the Office of the
Vice President.
(b) ``Agency,'' unless otherwise indicated, means any authority of
the United States that is an ``agency'' under 44 U.S.C. 3502(1), other
than those considered to be independent regulatory agencies, as defined
in 44 U.S.C. 3502(10).
(c) ``Director'' means the Director of OMB.
(d) ``Regulation'' or ``rule'' means an agency statement of general
applicability and future effect, which the agency intends to have the
force and effect of law, that is designed to implement, interpret, or
prescribe law or policy or to describe the procedure or practice
requirements of an agency. It does not, however, include:
(1) Regulations or rules issued in accordance with the formal
rulemaking provisions of 5 U.S.C. 556, 557;
(2) Regulations or rules that pertain to a military or foreign
affairs function of the United States, other than procurement
regulations and regulations involving the import or export of non-
defense articles and services;
(3) Regulations or rules that are limited to agency organization,
management, or personnel matters; or
(4) Any other category of regulations exempted by the Administrator
of OIRA.
(e) ``Regulatory action'' means any substantive action by an agency
(normally published in the Federal Register) that promulgates or is
expected to lead to the promulgation of a final rule or regulation,
including notices of inquiry, advance notices of proposed rulemaking,
and notices of proposed rulemaking.
(f) ``Significant regulatory action'' means any regulatory action
that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive order.
Sec. 4. Planning Mechanism. In order to have an effective regulatory
program, to provide for coordination of regulations, to maximize
consultation and the resolution of potential conflicts at an early
stage, to involve the public and its State, local, and tribal officials
in regulatory planning, and to ensure that new or revised regulations
promote the President's priorities and the principles set forth in this
Executive order, these procedures shall be followed, to the extent
permitted by law:
(a) Agencies' Policy Meeting. Early in each year's planning cycle,
the Director shall convene a meeting of the Advisors and the heads of
agencies to seek a common understanding of priorities and to coordinate
regulatory efforts to be accomplished in the upcoming year.
(b) Unified Regulatory Agenda. For purposes of this subsection, the
term ``agency'' or ``agencies'' shall also include those considered to
be independent regulatory agencies, as defined in 44 U.S.C. 3502(10).
Each agency shall prepare an agenda of all regulations under development
or review, at a time and in a manner specified by the Administrator of
OIRA. The description of each regulatory action shall contain, at a
minimum, a regulation identifier number, a brief summary of the action,
the legal authority for the action, any legal deadline for the action,
and the name and telephone number of a knowledgeable agency official.
Agencies may incorporate the information required under 5 U.S.C. 602 and
[former] 41 U.S.C. 402 into these agendas.
(c) The Regulatory Plan. For purposes of this subsection, the term
``agency'' or ``agencies'' shall also include those considered to be
independent regulatory agencies, as defined in 44 U.S.C. 3502(10). (1)
As part of the Unified Regulatory Agenda, beginning in 1994, each agency
shall prepare a Regulatory Plan (Plan) of the most important significant
regulatory actions that the agency reasonably expects to issue in
proposed or final form in that fiscal year or thereafter. The Plan shall
be approved personally by the agency head and shall contain at a
minimum:
(A) A statement of the agency's regulatory objectives and priorities
and how they relate to the President's priorities;
(B) A summary of each planned significant regulatory action
including, to the extent possible, alternatives to be considered and
preliminary estimates of the anticipated costs and benefits;
(C) A summary of the legal basis for each such action, including
whether any aspect of the action is required by statute or court order;
(D) A statement of the need for each such action and, if applicable,
how the action will reduce risks to public health, safety, or the
environment, as well as how the magnitude of the risk addressed by the
action relates to other risks within the jurisdiction of the agency;
(E) The agency's schedule for action, including a statement of any
applicable statutory or judicial deadlines; and
(F) The name, address, and telephone number of a person the public
may contact for additional information about the planned regulatory
action.
(2) Each agency shall forward its Plan to OIRA by June 1st of each
year.
(3) Within 10 calendar days after OIRA has received an agency's
Plan, OIRA shall circulate it to other affected agencies and the
Advisors.
(4) An agency head who believes that a planned regulatory action of
another agency may conflict with its own policy or action taken or
planned shall promptly notify, in writing, the Administrator of OIRA,
who shall forward that communication to the issuing agency and the
Advisors.
(5) If the Administrator of OIRA believes that a planned regulatory
action of an agency may be inconsistent with the President's priorities
or the principles set forth in this Executive order or may be in
conflict with any policy or action taken or planned by another agency,
the Administrator of OIRA shall promptly notify, in writing, the
affected agencies and the Advisors.
(6) The Director may consult with the heads of agencies with respect
to their Plans and, in appropriate instances, request further
consideration or inter-agency coordination.
(7) The Plans developed by the issuing agency shall be published
annually in the October publication of the Unified Regulatory Agenda.
This publication shall be made available to the Congress; State, local,
and tribal governments; and the public. Any views on any aspect of any
agency Plan, including whether any planned regulatory action might
conflict with any other planned or existing regulation, impose any
unintended consequences on the public, or confer any unclaimed benefits
on the public, should be directed to the issuing agency, with a copy to
OIRA.
(d) Regulatory Working Group. Within 30 days of the date of this
Executive order, the Administrator of OIRA shall convene a Regulatory
Working Group (``Working Group''), which shall consist of
representatives of the heads of each agency that the Administrator
determines to have significant domestic regulatory responsibility and
the Advisors. The Administrator of OIRA shall chair the Working Group
and shall periodically advise the Director on the activities of the
Working Group. The Working Group shall serve as a forum to assist
agencies in identifying and analyzing important regulatory issues
(including, among others (1) the development of innovative regulatory
techniques, (2) the methods, efficacy, and utility of comparative risk
assessment in regulatory decision-making, and (3) the development of
short forms and other streamlined regulatory approaches for small
businesses and other entities). The Working Group shall meet at least
quarterly and may meet as a whole or in subgroups of agencies with an
interest in particular issues or subject areas. To inform its
discussions, the Working Group may commission analytical studies and
reports by OIRA, the Administrative Conference of the United States, or
any other agency.
(e) Conferences. The Administrator of OIRA shall meet quarterly with
representatives of State, local, and tribal governments to identify both
existing and proposed regulations that may uniquely or significantly
affect those governmental entities. The Administrator of OIRA shall also
convene, from time to time, conferences with representatives of
businesses, nongovernmental organizations, and the public to discuss
regulatory issues of common concern.
Sec. 5. Existing Regulations. In order to reduce the regulatory
burden on the American people, their families, their communities, their
State, local, and tribal governments, and their industries; to determine
whether regulations promulgated by the executive branch of the Federal
Government have become unjustified or unnecessary as a result of changed
circumstances; to confirm that regulations are both compatible with each
other and not duplicative or inappropriately burdensome in the
aggregate; to ensure that all regulations are consistent with the
President's priorities and the principles set forth in this Executive
order, within applicable law; and to otherwise improve the effectiveness
of existing regulations: (a) Within 90 days of the date of this
Executive order, each agency shall submit to OIRA a program, consistent
with its resources and regulatory priorities, under which the agency
will periodically review its existing significant regulations to
determine whether any such regulations should be modified or eliminated
so as to make the agency's regulatory program more effective in
achieving the regulatory objectives, less burdensome, or in greater
alignment with the President's priorities and the principles set forth
in this Executive order. Any significant regulations selected for review
shall be included in the agency's annual Plan. The agency shall also
identify any legislative mandates that require the agency to promulgate
or continue to impose regulations that the agency believes are
unnecessary or outdated by reason of changed circumstances.
(b) The Administrator of OIRA shall work with the Regulatory Working
Group and other interested entities to pursue the objectives of this
section. State, local, and tribal governments are specifically
encouraged to assist in the identification of regulations that impose
significant or unique burdens on those governmental entities and that
appear to have outlived their justification or be otherwise inconsistent
with the public interest.
(c) The Director, in consultation with the Advisors, may identify
for review by the appropriate agency or agencies other existing
regulations of an agency or groups of regulations of more than one
agency that affect a particular group, industry, or sector of the
economy, or may identify legislative mandates that may be appropriate
for reconsideration by the Congress.
Sec. 6. Centralized Review of Regulations. The guidelines set forth
below shall apply to all regulatory actions, for both new and existing
regulations, by agencies other than those agencies specifically exempted
by the Administrator of OIRA:
(a) Agency Responsibilities. (1) Each agency shall (consistent with
its own rules, regulations, or procedures) provide the public with
meaningful participation in the regulatory process. In particular,
before issuing a notice of proposed rulemaking, each agency should,
where appropriate, seek the involvement of those who are intended to
benefit from and those expected to be burdened by any regulation
(including, specifically, State, local, and tribal officials). In
addition, each agency should afford the public a meaningful opportunity
to comment on any proposed regulation, which in most cases should
include a comment period of not less than 60 days. Each agency also is
directed to explore and, where appropriate, use consensual mechanisms
for developing regulations, including negotiated rulemaking.
(2) Within 60 days of the date of this Executive order, each agency
head shall designate a Regulatory Policy Officer who shall report to the
agency head. The Regulatory Policy Officer shall be involved at each
stage of the regulatory process to foster the development of effective,
innovative, and least burdensome regulations and to further the
principles set forth in this Executive order.
(3) In addition to adhering to its own rules and procedures and to
the requirements of the Administrative Procedure Act [5 U.S.C. 551 et
seq., 701 et seq.], the Regulatory Flexibility Act [5 U.S.C. 601 et
seq.], the Paperwork Reduction Act [44 U.S.C. 3501 et seq.], and other
applicable law, each agency shall develop its regulatory actions in a
timely fashion and adhere to the following procedures with respect to a
regulatory action:
(A) Each agency shall provide OIRA, at such times and in the manner
specified by the Administrator of OIRA, with a list of its planned
regulatory actions, indicating those which the agency believes are
significant regulatory actions within the meaning of this Executive
order. Absent a material change in the development of the planned
regulatory action, those not designated as significant will not be
subject to review under this section unless, within 10 working days of
receipt of the list, the Administrator of OIRA notifies the agency that
OIRA has determined that a planned regulation is a significant
regulatory action within the meaning of this Executive order. The
Administrator of OIRA may waive review of any planned regulatory action
designated by the agency as significant, in which case the agency need
not further comply with subsection (a)(3)(B) or subsection (a)(3)(C) of
this section.
(B) For each matter identified as, or determined by the
Administrator of OIRA to be, a significant regulatory action, the
issuing agency shall provide to OIRA:
(i) The text of the draft regulatory action, together with a
reasonably detailed description of the need for the regulatory action
and an explanation of how the regulatory action will meet that need; and
(ii) An assessment of the potential costs and benefits of the
regulatory action, including an explanation of the manner in which the
regulatory action is consistent with a statutory mandate and, to the
extent permitted by law, promotes the President's priorities and avoids
undue interference with State, local, and tribal governments in the
exercise of their governmental functions.
(C) For those matters identified as, or determined by the
Administrator of OIRA to be, a significant regulatory action within the
scope of section 3(f)(1), the agency shall also provide to OIRA the
following additional information developed as part of the agency's
decision-making process (unless prohibited by law):
(i) An assessment, including the underlying analysis, of benefits
anticipated from the regulatory action (such as, but not limited to, the
promotion of the efficient functioning of the economy and private
markets, the enhancement of health and safety, the protection of the
natural environment, and the elimination or reduction of discrimination
or bias) together with, to the extent feasible, a quantification of
those benefits;
(ii) An assessment, including the underlying analysis, of costs
anticipated from the regulatory action (such as, but not limited to, the
direct cost both to the government in administering the regulation and
to businesses and others in complying with the regulation, and any
adverse effects on the efficient functioning of the economy, private
markets (including productivity, employment, and competitiveness),
health, safety, and the natural environment), together with, to the
extent feasible, a quantification of those costs; and
(iii) An assessment, including the underlying analysis, of costs and
benefits of potentially effective and reasonably feasible alternatives
to the planned regulation, identified by the agencies or the public
(including improving the current regulation and reasonably viable
nonregulatory actions), and an explanation why the planned regulatory
action is preferable to the identified potential alternatives.
(D) In emergency situations or when an agency is obligated by law to
act more quickly than normal review procedures allow, the agency shall
notify OIRA as soon as possible and, to the extent practicable, comply
with subsections (a)(3)(B) and (C) of this section. For those regulatory
actions that are governed by a statutory or court-imposed deadline, the
agency shall, to the extent practicable, schedule rulemaking proceedings
so as to permit sufficient time for OIRA to conduct its review, as set
forth below in subsection (b)(2) through (4) of this section.
(E) After the regulatory action has been published in the Federal
Register or otherwise issued to the public, the agency shall:
(i) Make available to the public the information set forth in
subsections (a)(3)(B) and (C);
(ii) Identify for the public, in a complete, clear, and simple
manner, the substantive changes between the draft submitted to OIRA for
review and the action subsequently announced; and
(iii) Identify for the public those changes in the regulatory action
that were made at the suggestion or recommendation of OIRA.
(F) All information provided to the public by the agency shall be in
plain, understandable language.
(b) OIRA Responsibilities. The Administrator of OIRA shall provide
meaningful guidance and oversight so that each agency's regulatory
actions are consistent with applicable law, the President's priorities,
and the principles set forth in this Executive order and do not conflict
with the policies or actions of another agency. OIRA shall, to the
extent permitted by law, adhere to the following guidelines:
(1) OIRA may review only actions identified by the agency or by OIRA
as significant regulatory actions under subsection (a)(3)(A) of this
section.
(2) OIRA shall waive review or notify the agency in writing of the
results of its review within the following time periods:
(A) For any notices of inquiry, advance notices of proposed
rulemaking, or other preliminary regulatory actions prior to a Notice of
Proposed Rulemaking, within 10 working days after the date of submission
of the draft action to OIRA;
(B) For all other regulatory actions, within 90 calendar days after
the date of submission of the information set forth in subsections
(a)(3)(B) and (C) of this section, unless OIRA has previously reviewed
this information and, since that review, there has been no material
change in the facts and circumstances upon which the regulatory action
is based, in which case, OIRA shall complete its review within 45 days;
and
(C) The review process may be extended (1) once by no more than 30
calendar days upon the written approval of the Director and (2) at the
request of the agency head.
(3) For each regulatory action that the Administrator of OIRA
returns to an agency for further consideration of some or all of its
provisions, the Administrator of OIRA shall provide the issuing agency a
written explanation for such return, setting forth the pertinent
provision of this Executive order on which OIRA is relying. If the
agency head disagrees with some or all of the bases for the return, the
agency head shall so inform the Administrator of OIRA in writing.
(4) Except as otherwise provided by law or required by a Court, in
order to ensure greater openness, accessibility, and accountability in
the regulatory review process, OIRA shall be governed by the following
disclosure requirements:
(A) Only the Administrator of OIRA (or a particular designee) shall
receive oral communications initiated by persons not employed by the
executive branch of the Federal Government regarding the substance of a
regulatory action under OIRA review;
(B) All substantive communications between OIRA personnel and
persons not employed by the executive branch of the Federal Government
regarding a regulatory action under review shall be governed by the
following guidelines: (i) A representative from the issuing agency shall
be invited to any meeting between OIRA personnel and such person(s);
(ii) OIRA shall forward to the issuing agency, within 10 working
days of receipt of the communication(s), all written communications,
regardless of format, between OIRA personnel and any person who is not
employed by the executive branch of the Federal Government, and the
dates and names of individuals involved in all substantive oral
communications (including meetings to which an agency representative was
invited, but did not attend, and telephone conversations between OIRA
personnel and any such persons); and
(iii) OIRA shall publicly disclose relevant information about such
communication(s), as set forth below in subsection (b)(4)(C) of this
section.
(C) OIRA shall maintain a publicly available log that shall contain,
at a minimum, the following information pertinent to regulatory actions
under review:
(i) The status of all regulatory actions, including if (and if so,
when and by whom) Presidential consideration was requested;
(ii) A notation of all written communications forwarded to an
issuing agency under subsection (b)(4)(B)(ii) of this section; and
(iii) The dates and names of individuals involved in all substantive
oral communications, including meetings and telephone conversations,
between OIRA personnel and any person not employed by the executive
branch of the Federal Government, and the subject matter discussed
during such communications.
(D) After the regulatory action has been published in the Federal
Register or otherwise issued to the public, or after the agency has
announced its decision not to publish or issue the regulatory action,
OIRA shall make available to the public all documents exchanged between
OIRA and the agency during the review by OIRA under this section.
(5) All information provided to the public by OIRA shall be in
plain, understandable language.
Sec. 7. Resolution of Conflicts. (a) To the extent permitted by law,
disagreements or conflicts between or among agency heads or between OMB
and any agency that cannot be resolved by the Administrator of OIRA
shall be resolved by the President, with the assistance of the Chief of
Staff to the President (``Chief of Staff''), with the relevant agency
head (and, as appropriate, other interested government officials).
Presidential consideration of such disagreements may be initiated only
by the Director, by the head of the issuing agency, or by the head of an
agency that has a significant interest in the regulatory action at
issue. Such review will not be undertaken at the request of other
persons, entities, or their agents.
(b) Resolution of such conflicts shall be informed by
recommendations developed by the Chief of Staff, after consultation with
the Advisors (and other executive branch officials or personnel whose
responsibilities to the President include the subject matter at issue).
The development of these recommendations shall be concluded within 60
days after review has been requested.
(c) During the Presidential review period, communications with any
person not employed by the Federal Government relating to the substance
of the regulatory action under review and directed to the Advisors or
their staffs or to the staff of the Chief of Staff shall be in writing
and shall be forwarded by the recipient to the affected agency(ies) for
inclusion in the public docket(s). When the communication is not in
writing, such Advisors or staff members shall inform the outside party
that the matter is under review and that any comments should be
submitted in writing.
(d) At the end of this review process, the President, or the Chief
of Staff acting at the request of the President, shall notify the
affected agency and the Administrator of OIRA of the President's
decision with respect to the matter.
Sec. 8. Publication. Except to the extent required by law, an agency
shall not publish in the Federal Register or otherwise issue to the
public any regulatory action that is subject to review under section 6
of this Executive order until (1) the Administrator of OIRA notifies the
agency that OIRA has waived its review of the action or has completed
its review without any requests for further consideration, or (2) the
applicable time period in section 6(b)(2) expires without OIRA having
notified the agency that it is returning the regulatory action for
further consideration under section 6(b)(3), whichever occurs first. If
the terms of the preceding sentence have not been satisfied and an
agency wants to publish or otherwise issue a regulatory action, the head
of that agency may request Presidential consideration through the
Director, as provided under section 7 of this order. Upon receipt of
this request, the Director shall notify OIRA and the Advisors. The
guidelines and time period set forth in section 7 shall apply to the
publication of regulatory actions for which Presidential consideration
has been sought.
Sec. 9. Agency Authority. Nothing in this order shall be construed
as displacing the agencies' authority or responsibilities, as authorized
by law.
Sec. 10. Judicial Review. Nothing in this Executive order shall
affect any otherwise available judicial review of agency action. This
Executive order is intended only to improve the internal management of
the Federal Government and does not create any right or benefit,
substantive or procedural, enforceable at law or equity by a party
against the United States, its agencies or instrumentalities, its
officers or employees, or any other person.
Sec. 11. Revocations. Executive Orders Nos. 12291 and 12498; all
amendments to those Executive orders; all guidelines issued under those
orders; and any exemptions from those orders heretofore granted for any
category of rule are revoked.
Executive Order No. 12875
Ex. Ord. No. 12875, Oct. 26, 1993, 58 F.R. 58093, which provided for
the reduction of unfunded mandates on State, local, or tribal
governments and increased flexibility for State and local waivers of
statutory or regulatory requirements, was revoked by Ex. Ord. No. 13132,
Sec. 10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.
Executive Order No. 13083
Ex. Ord. No. 13083, May 14, 1998, 63 F.R. 27651, which listed
fundamental federalism principles and federalism policymaking criteria
to guide agencies in formulating and implementing policies and required
agencies to have a process to permit State and local governments to
provide input into the development of regulatory policies that have
federalism implications and to streamline the State and local government
waiver process, was revoked by Ex. Ord. No. 13132, Sec. 10(b), Aug. 4,
1999, 64 F.R. 43259, set out below.
Executive Order No. 13095
Ex. Ord. No. 13095, Aug. 5, 1998, 63 F.R. 42565, which suspended Ex.
Ord. No. 13083, was revoked by Ex. Ord. No. 13132, Sec. 10(b), Aug. 4,
1999, 64 F.R. 43259, set out below.
Ex. Ord. No. 13107. Implementation of Human Rights Treaties
Ex. Ord. No. 13107, Dec. 10, 1998, 63 F.R. 68991, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and bearing in mind the
obligations of the United States pursuant to the International Covenant
on Civil and Political Rights (ICCPR), the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the
Convention on the Elimination of All Forms of Racial Discrimination
(CERD), and other relevant treaties concerned with the protection and
promotion of human rights to which the United States is now or may
become a party in the future, it is hereby ordered as follows:
Section 1. Implementation of Human Rights Obligations. (a) It shall
be the policy and practice of the Government of the United States, being
committed to the protection and promotion of human rights and
fundamental freedoms, fully to respect and implement its obligations
under the international human rights treaties to which it is a party,
including the ICCPR, the CAT, and the CERD.
(b) It shall also be the policy and practice of the Government of
the United States to promote respect for international human rights,
both in our relationships with all other countries and by working with
and strengthening the various international mechanisms for the promotion
of human rights, including, inter alia, those of the United Nations, the
International Labor Organization, and the Organization of American
States.
Sec. 2. Responsibility of Executive Departments and Agencies. (a)
All executive departments and agencies (as defined in 5 U.S.C. 101-105,
including boards and commissions, and hereinafter referred to
collectively as ``agency'' or ``agencies'') shall maintain a current
awareness of United States international human rights obligations that
are relevant to their functions and shall perform such functions so as
to respect and implement those obligations fully. The head of each
agency shall designate a single contact officer who will be responsible
for overall coordination of the implementation of this order. Under this
order, all such agencies shall retain their established institutional
roles in the implementation, interpretation, and enforcement of Federal
law and policy.
(b) The heads of agencies shall have lead responsibility, in
coordination with other appropriate agencies, for questions concerning
implementation of human rights obligations that fall within their
respective operating and program responsibilities and authorities or, to
the extent that matters do not fall within the operating and program
responsibilities and authorities of any agency, that most closely relate
to their general areas of concern.
Sec. 3. Human Rights Inquiries and Complaints. Each agency shall
take lead responsibility, in coordination with other appropriate
agencies, for responding to inquiries, requests for information, and
complaints about violations of human rights obligations that fall within
its areas of responsibility or, if the matter does not fall within its
areas of responsibility, referring it to the appropriate agency for
response.
Sec. 4. Interagency Working Group on Human Rights Treaties. (a)
There is hereby established an Interagency Working Group on Human Rights
Treaties for the purpose of providing guidance, oversight, and
coordination with respect to questions concerning the adherence to and
implementation of human rights obligations and related matters.
(b) The designee of the Assistant to the President for National
Security Affairs shall chair the Interagency Working Group, which shall
consist of appropriate policy and legal representatives at the Assistant
Secretary level from the Department of State, the Department of Justice,
the Department of Labor, the Department of Defense, the Joint Chiefs of
Staff, and other agencies as the chair deems appropriate. The principal
members may designate alternates to attend meetings in their stead.
(c) The principal functions of the Interagency Working Group shall
include:
(i) coordinating the interagency review of any significant issues
concerning the implementation of this order and analysis and
recommendations in connection with pursuing the ratification of human
rights treaties, as such questions may from time to time arise;
(ii) coordinating the preparation of reports that are to be
submitted by the United States in fulfillment of treaty obligations;
(iii) coordinating the responses of the United States Government to
complaints against it concerning alleged human rights violations
submitted to the United Nations, the Organization of American States,
and other international organizations;
(iv) developing effective mechanisms to ensure that legislation
proposed by the Administration is reviewed for conformity with
international human rights obligations and that these obligations are
taken into account in reviewing legislation under consideration by the
Congress as well;
(v) developing recommended proposals and mechanisms for improving
the monitoring of the actions by the various States, Commonwealths, and
territories of the United States and, where appropriate, of Native
Americans and Federally recognized Indian tribes, including the review
of State, Commonwealth, and territorial laws for their conformity with
relevant treaties, the provision of relevant information for reports and
other monitoring purposes, and the promotion of effective remedial
mechanisms;
(vi) developing plans for public outreach and education concerning
the provisions of the ICCPR, CAT, CERD, and other relevant treaties, and
human rights-related provisions of domestic law;
(vii) coordinating and directing an annual review of United States
reservations, declarations, and understandings to human rights treaties,
and matters as to which there have been nontrivial complaints or
allegations of inconsistency with or breach of international human
rights obligations, in order to determine whether there should be
consideration of any modification of relevant reservations,
declarations, and understandings to human rights treaties, or United
States practices or laws. The results and recommendations of this review
shall be reviewed by the head of each participating agency;
(viii) making such other recommendations as it shall deem
appropriate to the President, through the Assistant to the President for
National Security Affairs, concerning United States adherence to or
implementation of human rights treaties and related matters; and
(ix) coordinating such other significant tasks in connection with
human rights treaties or international human rights institutions,
including the Inter-American Commission on Human Rights and the Special
Rapporteurs and complaints procedures established by the United Nations
Human Rights Commission.
(d) The work of the Interagency Working Group shall not supplant the
work of other interagency entities, including the President's Committee
on the International Labor Organization, that address international
human rights issues.
Sec. 5. Cooperation Among Executive Departments and Agencies. All
agencies shall cooperate in carrying out the provisions of this order.
The Interagency Working Group shall facilitate such cooperative
measures.
Sec. 6. Judicial Review, Scope, and Administration. (a) Nothing in
this order shall create any right or benefit, substantive or procedural,
enforceable by any party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person.
(b) This order does not supersede Federal statutes and does not
impose any justiciable obligations on the executive branch.
(c) The term ``treaty obligations'' shall mean treaty obligations as
approved by the Senate pursuant to Article II, section 2, clause 2 of
the United States Constitution.
(d) To the maximum extent practicable and subject to the
availability of appropriations, agencies shall carry out the provisions
of this order.
William J. Clinton.
Regulatory Reform--Waiver of Penalties and Reduction of Reports
Memorandum of President of the United States, Apr. 21, 1995, 60 F.R.
20621, provided:
Memorandum for
The Secretary of State
The Secretary of the Treasury
The Secretary of Defense
The Attorney General
The Secretary of the Interior
The Secretary of Agriculture
The Secretary of Commerce
The Secretary of Labor
The Secretary of Health and Human Services
The Secretary of Housing and Urban Development
The Secretary of Transportation
The Secretary of Energy
The Secretary of Education
The Secretary of Veterans Affairs
The Administrator, Environmental Protection Agency
The Administrator, Small Business Administration
The Secretary of the Army
The Secretary of the Navy
The Secretary of the Air Force
The Director, Federal Emergency Management Agency
The Administrator, National Aeronautics and Space Administration
The Director, National Science Foundation
The Acting Archivist of the United States
The Administrator of General Services
The Chair, Railroad Retirement Board
The Chairperson, Architectural and Transportation Barriers
Compliance Board
The Executive Director, Pension Benefit Guaranty Corporation
On March 16, I announced that the Administration would implement new
policies to give compliance officials more flexibility in dealing with
small business and to cut back on paperwork. These Governmentwide
policies, as well as the specific agency actions I announced, are part
of this Administration's continuing commitment to sensible regulatory
reform. With your help and cooperation, we hope to move the Government
toward a more flexible, effective, and user friendly approach to
regulation.
A. Actions: This memorandum directs the designated department and
agency heads to implement the policies set forth below.
1. Authority to Waive Penalties. (a) To the extent permitted by law,
each agency shall use its discretion to modify the penalties for small
businesses in the following situations. Agencies shall exercise their
enforcement discretion to waive the imposition of all or a portion of a
penalty when the violation is corrected within a time period appropriate
to the violation in question. For those violations that may take longer
to correct than the period set by the agency, the agency shall use its
enforcement discretion to waive up to 100 percent of the financial
penalties if the amounts waived are used to bring the entity into
compliance. The provisions in paragraph 1(a) of this memorandum shall
apply only where there has been a good faith effort to comply with
applicable regulations and the violation does not involve criminal
wrongdoing or significant threat to health, safety, or the environment.
(b) Each agency shall, by June 15, 1995, submit a plan to the
Director of the Office of Management and Budget (``Director'')
describing the actions it will take to implement the policies in
paragraph 1(a) of this memorandum. The plan shall provide that the
agency will implement the policies described in paragraph 1(a) of this
memorandum on or before July 14, 1995. Plans should include information
on how notification will be given to frontline workers and small
businesses.
2. Cutting Frequency of Reports. (a) Each agency shall reduce by
one-half the frequency of the regularly scheduled reports that the
public is required, by rule or by policy, to provide to the Government
(from quarterly to semiannually, from semiannually to annually, etc.),
unless the department or agency head determines that such action is not
legally permissible; would not adequately protect health, safety, or the
environment; would be inconsistent with achieving regulatory flexibility
or reducing regulatory burdens; or would impede the effective
administration of the agency's program. The duty to make such
determinations shall be nondelegable.
(b) Each agency shall, by June 15, 1995, submit a plan to the
Director describing the actions it will take to implement the policies
in paragraph 2(a), including a copy of any determination that certain
reports are excluded.
B. Application and Scope: 1. The Director may issue further guidance
as necessary to carry out the purposes of this memorandum.
2. This memorandum does not apply to matters related to law
enforcement, national security, or foreign affairs, the importation or
exportation of prohibited or restricted items, Government taxes, duties,
fees, revenues, or receipts; nor does it apply to agencies (or
components thereof) whose principal purpose is the collection, analysis,
and dissemination of statistical information.
3. This memorandum is not intended, and should not be construed, to
create any right or benefit, substantive or procedural, enforceable at
law by a party against the United States, its agencies, its officers, or
its employees.
4. The Director of the Office of Management and Budget is authorized
and directed to publish this memorandum in the Federal Register.
William J. Clinton.
Plain Language in Government Writing
Memorandum of President of the United States, June 1, 1998, 63 F.R.
31885, provided:
Memorandum for the Heads of Executive Departments and Agencies
The Vice President and I have made reinventing the Federal
Government a top priority of my Administration. We are determined to
make the Government more responsive, accessible, and understandable in
its communications with the public.
The Federal Government's writing must be in plain language. By using
plain language, we send a clear message about what the Government is
doing, what it requires, and what services it offers. Plain language
saves the Government and the private sector time, effort, and money.
Plain language requirements vary from one document to another,
depending on the intended audience. Plain language documents have
logical organization, easy-to-read design features, and use:
<bullet> common, everyday words, except for necessary technical
terms;
<bullet> ``you'' and other pronouns;
<bullet> the active voice; and
<bullet> short sentences.
To ensure the use of plain language, I direct you to do the
following:
<bullet> By October 1, 1998, use plain language in all new
documents, other than regulations, that explain how to obtain a
benefit or service or how to comply with a requirement you
administer or enforce. For example, these documents may include
letters, forms, notices, and instructions. By January 1, 2002,
all such documents created prior to October 1, 1998, must also
be in plain language.
<bullet> By January 1, 1999, use plain language in all proposed and
final rulemaking documents published in the Federal Register,
unless you proposed the rule before that date. You should
consider rewriting existing regulations in plain language when
you have the opportunity and resources to do so.
The National Partnership for Reinventing Government will issue
guidance to help you comply with these directives and to explain more
fully the elements of plain language. You should also use customer
feedback and common sense to guide your plain language efforts.
I ask the independent agencies to comply with these directives.
This memorandum does not confer any right or benefit enforceable by
law against the United States or its representatives. The Director of
the Office of Management and Budget will publish this memorandum in the
Federal Register.
William J. Clinton.
Ex. Ord. No. 13132. Federalism
Ex. Ord. No. 13132, Aug. 4, 1999, 64 F.R. 43255, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in order to guarantee the
division of governmental responsibilities between the national
government and the States that was intended by the Framers of the
Constitution, to ensure that the principles of federalism established by
the Framers guide the executive departments and agencies in the
formulation and implementation of policies, and to further the policies
of the Unfunded Mandates Reform Act [of 1995, Pub. L. 104-4, see Tables
for classification], it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) ``Policies that have federalism implications'' refers to
regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
(b) ``State'' or ``States'' refer to the States of the United States
of America, individually or collectively, and, where relevant, to State
governments, including units of local government and other political
subdivisions established by the States.
(c) ``Agency'' means any authority of the United States that is an
``agency'' under 44 U.S.C. 3502(1), other than those considered to be
independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(d) ``State and local officials'' means elected officials of State
and local governments or their representative national organizations.
Sec. 2. Fundamental Federalism Principles. In formulating and
implementing policies that have federalism implications, agencies shall
be guided by the following fundamental federalism principles:
(a) Federalism is rooted in the belief that issues that are not
national in scope or significance are most appropriately addressed by
the level of government closest to the people.
(b) The people of the States created the national government and
delegated to it enumerated governmental powers. All other sovereign
powers, save those expressly prohibited the States by the Constitution,
are reserved to the States or to the people.
(c) The constitutional relationship among sovereign governments,
State and national, is inherent in the very structure of the
Constitution and is formalized in and protected by the Tenth Amendment
to the Constitution.
(d) The people of the States are free, subject only to restrictions
in the Constitution itself or in constitutionally authorized Acts of
Congress, to define the moral, political, and legal character of their
lives.
(e) The Framers recognized that the States possess unique
authorities, qualities, and abilities to meet the needs of the people
and should function as laboratories of democracy.
(f) The nature of our constitutional system encourages a healthy
diversity in the public policies adopted by the people of the several
States according to their own conditions, needs, and desires. In the
search for enlightened public policy, individual States and communities
are free to experiment with a variety of approaches to public issues.
One-size-fits-all approaches to public policy problems can inhibit the
creation of effective solutions to those problems.
(g) Acts of the national government--whether legislative, executive,
or judicial in nature--that exceed the enumerated powers of that
government under the Constitution violate the principle of federalism
established by the Framers.
(h) Policies of the national government should recognize the
responsibility of--and should encourage opportunities for--individuals,
families, neighborhoods, local governments, and private associations to
achieve their personal, social, and economic objectives through
cooperative effort.
(i) The national government should be deferential to the States when
taking action that affects the policymaking discretion of the States and
should act only with the greatest caution where State or local
governments have identified uncertainties regarding the constitutional
or statutory authority of the national government.
Sec. 3. Federalism Policymaking Criteria. In addition to adhering to
the fundamental federalism principles set forth in section 2, agencies
shall adhere, to the extent permitted by law, to the following criteria
when formulating and implementing policies that have federalism
implications:
(a) There shall be strict adherence to constitutional principles.
Agencies shall closely examine the constitutional and statutory
authority supporting any action that would limit the policymaking
discretion of the States and shall carefully assess the necessity for
such action. To the extent practicable, State and local officials shall
be consulted before any such action is implemented. Executive Order
12372 of July 14, 1982 (``Intergovernmental Review of Federal
Programs'') [31 U.S.C. 6506 note] remains in effect for the programs and
activities to which it is applicable.
(b) National action limiting the policymaking discretion of the
States shall be taken only where there is constitutional and statutory
authority for the action and the national activity is appropriate in
light of the presence of a problem of national significance. Where there
are significant uncertainties as to whether national action is
authorized or appropriate, agencies shall consult with appropriate State
and local officials to determine whether Federal objectives can be
attained by other means.
(c) With respect to Federal statutes and regulations administered by
the States, the national government shall grant the States the maximum
administrative discretion possible. Intrusive Federal oversight of State
administration is neither necessary nor desirable.
(d) When undertaking to formulate and implement policies that have
federalism implications, agencies shall:
(1) encourage States to develop their own policies to achieve
program objectives and to work with appropriate officials in other
States;
(2) where possible, defer to the States to establish standards;
(3) in determining whether to establish uniform national
standards, consult with appropriate State and local officials as to
the need for national standards and any alternatives that would
limit the scope of national standards or otherwise preserve State
prerogatives and authority; and
(4) where national standards are required by Federal statutes,
consult with appropriate State and local officials in developing
those standards.
Sec. 4. Special Requirements for Preemption. Agencies, in taking
action that preempts State law, shall act in strict accordance with
governing law.
(a) Agencies shall construe, in regulations and otherwise, a Federal
statute to preempt State law only where the statute contains an express
preemption provision or there is some other clear evidence that the
Congress intended preemption of State law, or where the exercise of
State authority conflicts with the exercise of Federal authority under
the Federal statute.
(b) Where a Federal statute does not preempt State law (as addressed
in subsection (a) of this section), agencies shall construe any
authorization in the statute for the issuance of regulations as
authorizing preemption of State law by rulemaking only when the exercise
of State authority directly conflicts with the exercise of Federal
authority under the Federal statute or there is clear evidence to
conclude that the Congress intended the agency to have the authority to
preempt State law.
(c) Any regulatory preemption of State law shall be restricted to
the minimum level necessary to achieve the objectives of the statute
pursuant to which the regulations are promulgated.
(d) When an agency foresees the possibility of a conflict between
State law and Federally protected interests within its area of
regulatory responsibility, the agency shall consult, to the extent
practicable, with appropriate State and local officials in an effort to
avoid such a conflict.
(e) When an agency proposes to act through adjudication or
rulemaking to preempt State law, the agency shall provide all affected
State and local officials notice and an opportunity for appropriate
participation in the proceedings.
Sec. 5. Special Requirements for Legislative Proposals. Agencies
shall not submit to the Congress legislation that would:
(a) directly regulate the States in ways that would either interfere
with functions essential to the States' separate and independent
existence or be inconsistent with the fundamental federalism principles
in section 2;
(b) attach to Federal grants conditions that are not reasonably
related to the purpose of the grant; or
(c) preempt State law, unless preemption is consistent with the
fundamental federalism principles set forth in section 2, and unless a
clearly legitimate national purpose, consistent with the federalism
policymaking criteria set forth in section 3, cannot otherwise be met.
Sec. 6. Consultation.
(a) Each agency shall have an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
Within 90 days after the effective date of this order, the head of each
agency shall designate an official with principal responsibility for the
agency's implementation of this order and that designated official shall
submit to the Office of Management and Budget a description of the
agency's consultation process.
(b) To the extent practicable and permitted by law, no agency shall
promulgate any regulation that has federalism implications, that imposes
substantial direct compliance costs on State and local governments, and
that is not required by statute, unless:
(1) funds necessary to pay the direct costs incurred by the
State and local governments in complying with the regulation are
provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of the
regulation,
(A) consulted with State and local officials early in the
process of developing the proposed regulation;
(B) in a separately identified portion of the preamble to
the regulation as it is to be issued in the Federal Register,
provides to the Director of the Office of Management and Budget
a federalism summary impact statement, which consists of a
description of the extent of the agency's prior consultation
with State and local officials, a summary of the nature of their
concerns and the agency's position supporting the need to issue
the regulation, and a statement of the extent to which the
concerns of State and local officials have been met; and
(C) makes available to the Director of the Office of
Management and Budget any written communications submitted to
the agency by State and local officials.
(c) To the extent practicable and permitted by law, no agency shall
promulgate any regulation that has federalism implications and that
preempts State law, unless the agency, prior to the formal promulgation
of the regulation,
(1) consulted with State and local officials early in the
process of developing the proposed regulation;
(2) in a separately identified portion of the preamble to the
regulation as it is to be issued in the Federal Register, provides
to the Director of the Office of Management and Budget a federalism
summary impact statement, which consists of a description of the
extent of the agency's prior consultation with State and local
officials, a summary of the nature of their concerns and the
agency's position supporting the need to issue the regulation, and a
statement of the extent to which the concerns of State and local
officials have been met; and
(3) makes available to the Director of the Office of Management
and Budget any written communications submitted to the agency by
State and local officials.
Sec. 7. Increasing Flexibility for State and Local Waivers.
(a) Agencies shall review the processes under which State and local
governments apply for waivers of statutory and regulatory requirements
and take appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable and permitted by
law, consider any application by a State for a waiver of statutory or
regulatory requirements in connection with any program administered by
that agency with a general view toward increasing opportunities for
utilizing flexible policy approaches at the State or local level in
cases in which the proposed waiver is consistent with applicable Federal
policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable and permitted by
law, render a decision upon a complete application for a waiver within
120 days of receipt of such application by the agency. If the
application for a waiver is not granted, the agency shall provide the
applicant with timely written notice of the decision and the reasons
therefor.
(d) This section applies only to statutory or regulatory
requirements that are discretionary and subject to waiver by the agency.
Sec. 8. Accountability.
(a) In transmitting any draft final regulation that has federalism
implications to the Office of Management and Budget pursuant to
Executive Order 12866 of September 30, 1993 [set out above], each agency
shall include a certification from the official designated to ensure
compliance with this order stating that the requirements of this order
have been met in a meaningful and timely manner.
(b) In transmitting proposed legislation that has federalism
implications to the Office of Management and Budget, each agency shall
include a certification from the official designated to ensure
compliance with this order that all relevant requirements of this order
have been met.
(c) Within 180 days after the effective date of this order, the
Director of the Office of Management and Budget and the Assistant to the
President for Intergovernmental Affairs shall confer with State and
local officials to ensure that this order is being properly and
effectively implemented.
Sec. 9. Independent Agencies. Independent regulatory agencies are
encouraged to comply with the provisions of this order.
Sec. 10. General Provisions.
(a) This order shall supplement but not supersede the requirements
contained in Executive Order 12372 (``Intergovernmental Review of
Federal Programs'') [31 U.S.C. 6506 note], Executive Order 12866
(``Regulatory Planning and Review'') [set out above], Executive Order
12988 (``Civil Justice Reform'' [28 U.S.C. 519 note]), and OMB Circular
A-19.
(b) Executive Order 12612 (``Federalism''), Executive Order 12875
(``Enhancing the Intergovernmental Partnership''), Executive Order 13083
(``Federalism''), and Executive Order 13095 (``Suspension of Executive
Order 13083'') are revoked.
(c) This order shall be effective 90 days after the date of this
order.
Sec. 11. Judicial Review. This order is intended only to improve the
internal management of the executive branch, and is not intended to
create any right or benefit, substantive or procedural, enforceable at
law by a party against the United States, its agencies, its officers, or
any person.
William J. Clinton.
Ex. Ord. No. 13198. Agency Responsibilities With Respect to Faith-Based
and Community Initiatives
Ex. Ord. No. 13198, Jan. 29, 2001, 66 F.R. 8497, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in order to help the
Federal Government coordinate a national effort to expand opportunities
for faith-based and other community organizations and to strengthen
their capacity to better meet social needs in America's communities, it
is hereby ordered as follows:
Section 1. Establishment of Executive Department Centers for Faith-
Based and Community Initiatives. (a) The Attorney General, the Secretary
of Education, the Secretary of Labor, the Secretary of Health and Human
Services, and the Secretary of Housing and Urban Development shall each
establish within their respective departments a Center for Faith-Based
and Community Initiatives (Center).
(b) Each executive department Center shall be supervised by a
Director, appointed by the department head in consultation with the
White House Office of Faith-Based and Community Initiatives (White House
OFBCI).
(c) Each department shall provide its Center with appropriate staff,
administrative support, and other resources to meet its responsibilities
under this order.
(d) Each department's Center shall begin operations no later than 45
days from the date of this order.
Sec. 2. Purpose of Executive Department Centers for Faith-Based and
Community Initiatives. The purpose of the executive department Centers
will be to coordinate department efforts to eliminate regulatory,
contracting, and other programmatic obstacles to the participation of
faith-based and other community organizations in the provision of social
services.
Sec. 3. Responsibilities of Executive Department Centers for Faith-
Based and Community Initiatives. Each Center shall, to the extent
permitted by law: (a) conduct, in coordination with the White House
OFBCI, a department-wide audit to identify all existing barriers to the
participation of faith-based and other community organizations in the
delivery of social services by the department, including but not limited
to regulations, rules, orders, procurement, and other internal policies
and practices, and outreach activities that either facially discriminate
against or otherwise discourage or disadvantage the participation of
faith-based and other community organizations in Federal programs;
(b) coordinate a comprehensive departmental effort to incorporate
faith-based and other community organizations in department programs and
initiatives to the greatest extent possible;
(c) propose initiatives to remove barriers identified pursuant to
section 3(a) of this order, including but not limited to reform of
regulations, procurement, and other internal policies and practices, and
outreach activities;
(d) propose the development of innovative pilot and demonstration
programs to increase the participation of faith-based and other
community organizations in Federal as well as State and local
initiatives; and
(e) develop and coordinate department outreach efforts to
disseminate information more effectively to faith-based and other
community organizations with respect to programming changes, contracting
opportunities, and other department initiatives, including but not
limited to Web and Internet resources.
Sec. 4. Additional Responsibilities of the Department of Health and
Human Services and the Department of Labor Centers. In addition to those
responsibilities described in section 3 of this order, the Department of
Health and Human Services and the Department of Labor Centers shall, to
the extent permitted by law: (a) conduct a comprehensive review of
policies and practices affecting existing funding streams governed by
so-called ``Charitable Choice'' legislation to assess the department's
compliance with the requirements of Charitable Choice; and (b) promote
and ensure compliance with existing Charitable Choice legislation by the
department, as well as its partners in State and local government, and
their contractors.
Sec. 5. Reporting Requirements. (a) Report. Not later than 180 days
after the date of this order and annually thereafter, each of the five
executive department Centers described in section 1 of this order shall
prepare and submit a report to the White House OFBCI.
(b) Contents. The report shall include a description of the
department's efforts in carrying out its responsibilities under this
order, including but not limited to:
(1) a comprehensive analysis of the barriers to the full
participation of faith-based and other community organizations in
the delivery of social services identified pursuant to section 3(a)
of this order and the proposed strategies to eliminate those
barriers; and
(2) a summary of the technical assistance and other information
that will be available to faith-based and other community
organizations regarding the program activities of the department and
the preparation of applications or proposals for grants, cooperative
agreements, contracts, and procurement.
(c) Performance Indicators. The first report, filed 180 days after
the date of this order, shall include annual performance indicators and
measurable objectives for department action. Each report filed
thereafter shall measure the department's performance against the
objectives set forth in the initial report.
Sec. 6. Responsibilities of All Executive Departments and Agencies.
All executive departments and agencies (agencies) shall: (a) designate
an agency employee to serve as the liaison and point of contact with the
White House OFBCI; and
(b) cooperate with the White House OFBCI and provide such
information, support, and assistance to the White House OFBCI as it may
request, to the extent permitted by law.
Sec. 7. Administration and Judicial Review. (a) The agencies'
actions directed by this Executive Order shall be carried out subject to
the availability of appropriations and to the extent permitted by law.
(b) This order does not create any right or benefit, substantive or
procedural, enforceable at law or equity against the United States, its
agencies or instrumentalities, its officers or employees, or any other
person.
George W. Bush.
Ex. Ord. No. 13272. Proper Consideration of Small Entities in Agency
Rulemaking
Ex. Ord. No. 13272, Aug. 13, 2002, 67 F.R. 53461, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, it is hereby ordered as
follows:
Section 1. General Requirements. Each agency shall establish
procedures and policies to promote compliance with the Regulatory
Flexibility Act, as amended (5 U.S.C. 601 et seq.) (the ``Act'').
Agencies shall thoroughly review draft rules to assess and take
appropriate account of the potential impact on small businesses, small
governmental jurisdictions, and small organizations, as provided by the
Act. The Chief Counsel for Advocacy of the Small Business Administration
(Advocacy) shall remain available to advise agencies in performing that
review consistent with the provisions of the Act.
Sec. 2. Responsibilities of Advocacy. Consistent with the
requirements of the Act, other applicable law, and Executive Order 12866
of September 30, 1993, as amended [set out above], Advocacy:
(a) shall notify agency heads from time to time of the requirements
of the Act, including by issuing notifications with respect to the basic
requirements of the Act within 90 days of the date of this order;
(b) shall provide training to agencies on compliance with the Act;
and
(c) may provide comment on draft rules to the agency that has
proposed or intends to propose the rules and to the Office of
Information and Regulatory Affairs of the Office of Management and
Budget (OIRA).
Sec. 3. Responsibilities of Federal Agencies. Consistent with the
requirements of the Act and applicable law, agencies shall:
(a) Within 180 days of the date of this order, issue written
procedures and policies, consistent with the Act, to ensure that the
potential impacts of agencies' draft rules on small businesses, small
governmental jurisdictions, and small organizations are properly
considered during the rulemaking process. Agency heads shall submit, no
later than 90 days from the date of this order, their written procedures
and policies to Advocacy for comment. Prior to issuing final procedures
and policies, agencies shall consider any such comments received within
60 days from the date of the submission of the agencies' procedures and
policies to Advocacy. Except to the extent otherwise specifically
provided by statute or Executive Order, agencies shall make the final
procedures and policies available to the public through the Internet or
other easily accessible means;
(b) Notify Advocacy of any draft rules that may have a significant
economic impact on a substantial number of small entities under the Act.
Such notifications shall be made (i) when the agency submits a draft
rule to OIRA under Executive Order 12866 [set out above] if that order
requires such submission, or (ii) if no submission to OIRA is so
required, at a reasonable time prior to publication of the rule by the
agency; and
(c) Give every appropriate consideration to any comments provided by
Advocacy regarding a draft rule. Consistent with applicable law and
appropriate protection of executive deliberations and legal privileges,
an agency shall include, in any explanation or discussion accompanying
publication in the Federal Register of a final rule, the agency's
response to any written comments submitted by Advocacy on the proposed
rule that preceded the final rule; provided, however, that such
inclusion is not required if the head of the agency certifies that the
public interest is not served thereby. Agencies and Advocacy may, to the
extent permitted by law, engage in an exchange of data and research, as
appropriate, to foster the purposes of the Act.
Sec. 4. Definitions. Terms defined in section 601 of title 5, United
States Code, including the term ``agency,'' shall have the same meaning
in this order.
Sec. 5. Preservation of Authority. Nothing in this order shall be
construed to impair or affect the authority of the Administrator of the
Small Business Administration to supervise the Small Business
Administration as provided in the first sentence of section 2(b)(1) of
Public Law 85-09536 [Pub. L. 85-536] (15 U.S.C. 633(b)(1)).
Sec. 6. Reporting. For the purpose of promoting compliance with this
order, Advocacy shall submit a report not less than annually to the
Director of the Office of Management and Budget on the extent of
compliance with this order by agencies.
Sec. 7. Confidentiality. Consistent with existing law, Advocacy may
publicly disclose information that it receives from the agencies in the
course of carrying out this order only to the extent that such
information already has been lawfully and publicly disclosed by OIRA or
the relevant rulemaking agency.
Sec. 8. Judicial Review. This order is intended only to improve the
internal management of the Federal Government. This order is not
intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or equity, against the United States, its
departments, agencies, or other entities, its officers or employees, or
any other person.
George W. Bush.
Ex. Ord. No. 13279. Equal Protection of the Laws for Faith-Based and
Community Organizations
Ex. Ord. No. 13279, Dec. 12, 2002, 67 F.R. 77141, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including section 121(a) of
title 40, United States Code, and section 301 of title 3, United States
Code, and in order to guide Federal agencies in formulating and
developing policies with implications for faith-based organizations and
other community organizations, to ensure equal protection of the laws
for faith-based and community organizations, to further the national
effort to expand opportunities for, and strengthen the capacity of,
faith-based and other community organizations so that they may better
meet social needs in America's communities, and to ensure the economical
and efficient administration and completion of Government contracts, it
is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) ``Federal financial assistance'' means assistance that non-
Federal entities receive or administer in the form of grants, contracts,
loans, loan guarantees, property, cooperative agreements, food
commodities, direct appropriations, or other assistance, but does not
include a tax credit, deduction, or exemption.
(b) ``Social service program'' means a program that is administered
by the Federal Government, or by a State or local government using
Federal financial assistance, and that provides services directed at
reducing poverty, improving opportunities for low-income children,
revitalizing low-income communities, empowering low-income families and
low-income individuals to become self-sufficient, or otherwise helping
people in need. Such programs include, but are not limited to, the
following:
(i) child care services, protective services for children and
adults, services for children and adults in foster care, adoption
services, services related to the management and maintenance of the
home, day care services for adults, and services to meet the special
needs of children, older individuals, and individuals with
disabilities (including physical, mental, or emotional
disabilities);
(ii) transportation services;
(iii) job training and related services, and employment
services;
(iv) information, referral, and counseling services;
(v) the preparation and delivery of meals and services related
to soup kitchens or food banks;
(vi) health support services;
(vii) literacy and mentoring programs;
(viii) services for the prevention and treatment of juvenile
delinquency and substance abuse, services for the prevention of
crime and the provision of assistance to the victims and the
families of criminal offenders, and services related to intervention
in, and prevention of, domestic violence; and
(ix) services related to the provision of assistance for housing
under Federal law.
(c) ``Policies that have implications for faith-based and community
organizations'' refers to all policies, programs, and regulations,
including official guidance and internal agency procedures, that have
significant effects on faith-based organizations participating in or
seeking to participate in social service programs supported with Federal
financial assistance.
(d) ``Agency'' means a department or agency in the executive branch.
(e) ``Specified agency heads'' mean the Attorney General, the
Secretaries of Agriculture, Education, Health and Human Services,
Housing and Urban Development, and Labor, and the Administrator of the
Agency for International Development.
Sec. 2. Fundamental Principles and Policymaking Criteria.
In formulating and implementing policies that have implications for
faith-based and community organizations, agencies that administer social
service programs supported with Federal financial assistance shall, to
the extent permitted by law, be guided by the following fundamental
principles:
(a) Federal financial assistance for social service programs should
be distributed in the most effective and efficient manner possible;
(b) The Nation's social service capacity will benefit if all
eligible organizations, including faith-based and other community
organizations, are able to compete on an equal footing for Federal
financial assistance used to support social service programs;
(c) No organization should be discriminated against on the basis of
religion or religious belief in the administration or distribution of
Federal financial assistance under social service programs;
(d) All organizations that receive Federal financial assistance
under social services programs should be prohibited from discriminating
against beneficiaries or potential beneficiaries of the social services
programs on the basis of religion or religious belief. Accordingly,
organizations, in providing services supported in whole or in part with
Federal financial assistance, and in their outreach activities related
to such services, should not be allowed to discriminate against current
or prospective program beneficiaries on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal to
actively participate in a religious practice;
(e) The Federal Government must implement Federal programs in
accordance with the Establishment Clause and the Free Exercise Clause of
the First Amendment to the Constitution. Therefore, organizations that
engage in inherently religious activities, such as worship, religious
instruction, and proselytization, must offer those services separately
in time or location from any programs or services supported with direct
Federal financial assistance, and participation in any such inherently
religious activities must be voluntary for the beneficiaries of the
social service program supported with such Federal financial assistance;
and
(f) Consistent with the Free Exercise Clause and the Free Speech
Clause of the Constitution, faith-based organizations should be eligible
to compete for Federal financial assistance used to support social
service programs and to participate fully in the social service programs
supported with Federal financial assistance without impairing their
independence, autonomy, expression, or religious character. Accordingly,
a faith-based organization that applies for or participates in a social
service program supported with Federal financial assistance may retain
its independence and may continue to carry out its mission, including
the definition, development, practice, and expression of its religious
beliefs, provided that it does not use direct Federal financial
assistance to support any inherently religious activities, such as
worship, religious instruction, or proselytization. Among other things,
faith-based organizations that receive Federal financial assistance may
use their facilities to provide social services supported with Federal
financial assistance, without removing or altering religious art, icons,
scriptures, or other symbols from these facilities. In addition, a
faith-based organization that applies for or participates in a social
service program supported with Federal financial assistance may retain
religious terms in its organization's name, select its board members on
a religious basis, and include religious references in its
organization's mission statements and other chartering or governing
documents.
Sec. 3. Agency Implementation.
(a) Specified agency heads shall, in coordination with the White
House Office of Faith-Based and Community Initiatives (White House
OFBCI), review and evaluate existing policies that have implications for
faith-based and community organizations in order to assess the
consistency of such policies with the fundamental principles and
policymaking criteria articulated in section 2 of this order.
(b) Specified agency heads shall ensure that all policies that have
implications for faith-based and community organizations are consistent
with the fundamental principles and policymaking criteria articulated in
section 2 of this order. Therefore, specified agency heads shall, to the
extent permitted by law:
(i) amend all such existing policies of their respective
agencies to ensure that they are consistent with the fundamental
principles and policymaking criteria articulated in section 2 of
this order;
(ii) where appropriate, implement new policies for their
respective agencies that are consistent with and necessary to
further the fundamental principles and policymaking criteria set
forth in section 2 of this order; and
(iii) implement new policies that are necessary to ensure that
their respective agencies collect data regarding the participation
of faith-based and community organizations in social service
programs that receive Federal financial assistance.
(c) Within 90 days after the date of this order, each specified
agency head shall report to the President, through the Director of the
White House OFBCI, the actions it proposes to undertake to accomplish
the activities set forth in sections 3(a) and (b) of this order.
Sec. 4. Amendment of Executive Order 11246.
Pursuant to section 121(a) of title 40, United States Code, and
section 301 of title 3, United States Code, and in order to further the
strong Federal interest in ensuring that the cost and progress of
Federal procurement contracts are not adversely affected by an
artificial restriction of the labor pool caused by the unwarranted
exclusion of faith-based organizations from such contracts, section 204
of Executive Order 11246 of September 24, 1965, as amended, [42 U.S.C.
2000e note] is hereby further amended to read as follows:
``SEC. 204 (a) The Secretary of Labor may, when the Secretary deems
that special circumstances in the national interest so require, exempt a
contracting agency from the requirement of including any or all of the
provisions of Section 202 of this Order in any specific contract,
subcontract, or purchase order.
(b) The Secretary of Labor may, by rule or regulation, exempt
certain classes of contracts, subcontracts, or purchase orders (1)
whenever work is to be or has been performed outside the United States
and no recruitment of workers within the limits of the United States is
involved; (2) for standard commercial supplies or raw materials; (3)
involving less than specified amounts of money or specified numbers of
workers; or (4) to the extent that they involve subcontracts below a
specified tier.
(c) Section 202 of this Order shall not apply to a Government
contractor or subcontractor that is a religious corporation,
association, educational institution, or society, with respect to the
employment of individuals of a particular religion to perform work
connected with the carrying on by such corporation, association,
educational institution, or society of its activities. Such contractors
and subcontractors are not exempted or excused from complying with the
other requirements contained in this Order.
(d) The Secretary of Labor may also provide, by rule, regulation, or
order, for the exemption of facilities of a contractor that are in all
respects separate and distinct from activities of the contractor related
to the performance of the contract: provided, that such an exemption
will not interfere with or impede the effectuation of the purposes of
this Order: and provided further, that in the absence of such an
exemption all facilities shall be covered by the provisions of this
Order.''
Sec. 5. General Provisions.
(a) This order supplements but does not supersede the requirements
contained in Executive Orders 13198 [set out above] and 13199 [3 U.S.C.
note prec. 101] of January 29, 2001.
(b) The agencies shall coordinate with the White House OFBCI
concerning the implementation of this order.
(c) Nothing in this order shall be construed to require an agency to
take any action that would impair the conduct of foreign affairs or the
national security.
Sec. 6. Responsibilities of Executive Departments and Agencies. All
executive departments and agencies (agencies) shall:
(a) designate an agency employee to serve as the liaison and point
of contact with the White House OFBCI; and
(b) cooperate with the White House OFBCI and provide such
information, support, and assistance to the White House OFBCI as it may
request, to the extent permitted by law.
Sec. 7. Judicial Review.
This order is intended only to improve the internal management of
the executive branch, and it is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at law or
in equity by a party against the United States, its agencies, or
entities, its officers, employees or agents, or any person.
George W. Bush.
Ex. Ord. No. 13280. Responsibilities of the Department of Agriculture
and the Agency for International Development With Respect to Faith-Based
and Community Initiatives
Ex. Ord. No. 13280, Dec. 12, 2002, 67 F.R. 77145, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in order to help the
Federal Government coordinate a national effort to expand opportunities
for faith-based and other community organizations and to strengthen
their capacity to better meet social needs in America's communities, it
is hereby ordered as follows:
Section 1. Establishment of Centers for Faith-Based and Community
Initiatives at the Department of Agriculture and the Agency for
International Development. (a) The Secretary of Agriculture and the
Administrator of the Agency for International Development shall each
establish within their respective agencies a Center for Faith-Based and
Community Initiatives (Center).
(b) Each of these Centers shall be supervised by a Director,
appointed by the agency head in consultation with the White House Office
of Faith-Based and Community Initiatives (White House OFBCI).
(c) Each agency shall provide its Center with appropriate staff,
administrative support, and other resources to meet its responsibilities
under this order.
(d) Each Center shall begin operations no later than 45 days from
the date of this order.
Sec. 2. Purpose of Executive Branch Centers for Faith-Based and
Community Initiatives. The purpose of the agency Centers will be to
coordinate agency efforts to eliminate regulatory, contracting, and
other programmatic obstacles to the participation of faith-based and
other community organizations in the provision of social services.
Sec. 3. Responsibilities of the Centers for Faith-Based and
Community Initiatives. Each Center shall, to the extent permitted by
law:
(a) conduct, in coordination with the White House OFBCI, an agency-
wide audit to identify all existing barriers to the participation of
faith-based and other community organizations in the delivery of social
services by the agency, including but not limited to regulations, rules,
orders, procurement, and other internal policies and practices, and
outreach activities that either facially discriminate against or
otherwise discourage or disadvantage the participation of faith-based
and other community organizations in Federal programs;
(b) coordinate a comprehensive agency effort to incorporate faith-
based and other community organizations in agency programs and
initiatives to the greatest extent possible;
(c) propose initiatives to remove barriers identified pursuant to
section 3(a) of this order, including but not limited to reform of
regulations, procurement, and other internal policies and practices, and
outreach activities;
(d) propose the development of innovative pilot and demonstration
programs to increase the participation of faith-based and other
community organizations in Federal as well as State and local
initiatives; and
(e) develop and coordinate agency outreach efforts to disseminate
information more effectively to faith-based and other community
organizations with respect to programming changes, contracting
opportunities, and other agency initiatives, including but not limited
to Web and Internet resources.
Sec. 4. Reporting Requirements.
(a) Report. Not later than 180 days from the date of this order and
annually thereafter, each of the two Centers described in section 1 of
this order shall prepare and submit a report to the White House OFBCI.
(b) Contents. The report shall include a description of the agency's
efforts in carrying out its responsibilities under this order, including
but not limited to:
(i) a comprehensive analysis of the barriers to the full
participation of faith-based and other community organizations in
the delivery of social services identified pursuant to section 3(a)
of this order and the proposed strategies to eliminate those
barriers; and
(ii) a summary of the technical assistance and other information
that will be available to faith-based and other community
organizations regarding the program activities of the agency and the
preparation of applications or proposals for grants, cooperative
agreements, contracts, and procurement.
(c) Performance Indicators. The first report, filed 180 days after
the date of this order, shall include annual performance indicators and
measurable objectives for agency action. Each report filed thereafter
shall measure the agency's performance against the objectives set forth
in the initial report.
Sec. 5. Responsibilities of the Secretary of Agriculture and the
Administrator of the Agency for International Development. The Secretary
and the Administrator shall:
(a) designate an employee within their respective agencies to serve
as the liaison and point of contact with the White House OFBCI; and
(b) cooperate with the White House OFBCI and provide such
information, support, and assistance to the White House OFBCI as it may
request, to the extent permitted by law.
Sec. 6. Administration and Judicial Review. (a) The agency actions
directed by this executive order shall be carried out subject to the
availability of appropriations and to the extent permitted by law.
(b) This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or equity by a
party against the United States, its agencies, or entities, its
officers, employees or agents, or any other person.
George W. Bush.
Section Referred to in Other Sections
This section is referred to in sections 504, 611 of this title;
title 2 section 658; title 28 section 2412; title 44 section 3506.
