REVISED JUNE 13, 1986, MEMORANDUM ON CERTAIN NEW PROCEDURES OF THE OFFICE OF INFORMATION AND REGULATORY AFFAIRS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88G01332R000901080004-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 46
• Document Creation Date: December 27, 2016
• Document Release Date: January 12, 2012
• Sequence Number: 4
• Publication Date: August 8, 1986
• Content Type: MEMO

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EXECUTIVE SECRETARIAT
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AUGri 8 1986
MEMORANDUM FOR THE HEADS OF DEPARTMENTS AND AGENCIES SUBJECT TO
EXECUTIVE ORDER NOS. 12291 AND 12498
FROM: Wendy L. Gramm, Administrator, OIRA
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
Revised June 13, 1986, Memorandum on Certain
New Procedures of the Office of Information
and Regulatory Affairs
Attached is a revised version of my Memorandum dated June 13,
1986 concerning certain new procedures primarily on the
disclosure of information about our reviews under Executive Order
No. 12291 and Executive Order No. 12498. This revised version,
also dated June 13, 1986, is intended to be a replacement for the
earlier Memorandum.
The principal change in the revised version is the inclusion of a
section concerning the effective date of the new procedures. An
explanation of the effective dates of the several sections of
these procedures was inadvertantly deleted from the original
version. There are other points of clarification as well
including: (1) the definition of "correspondence" in procedure
#3; (2) the availability of a current list of agencies that have
elected to be covered by procedures #4 through #6; and (3) the
availability in the reading room of copies of draft regulatory
program submissions from departments and agencies, procedure #8.
We have scheduled a public briefing for August 12, 1986, for
interested persons who have questions on these new procedures.
The briefing will be in Roam 450, Old Executive Office Building
at 10:00 a.m. Admission to the OEOB may be arranged by calling
395-5897.
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
June 13, 1986
MEMORANDUM FOR THE HEADS OF DEPARTMENTS AND AGENCIES SUBJECT TO
EXECUTIVE ORDER NOs. 12291 and 12498
FROM: Wendy L. Gramm, Administrator, OIRA
Additional procedures concerning OIRA reviews
under Executive Order Nos. 12291 and 12498
[Revised]
From the time the President signed Executive Order No. 12291 on
February 17, 1981, OMB has worked with the Departments and
Agencies to develop and implement various procedures concerning
the review of draft rules by the Office of Information and
Regulatory Affairs (OIRA). We have also developed trial
procedures and supported legislative proposals concerning our
reviews as we have gained experience with these Executive Orders.
For example last year, we implemented on a pilot basis with the
Environmental Protection Agency additional procedures concerning
OIRA's communications with persons outside the Federal
Government.
We have also supported an American Bar Association Resolution
that endorsed the President's regulatory review efforts and
recommended that more information concerning our reviews be made
available to Congress and the public.
The purpose of this memorandum is to advise you of additional
procedures that we have determined, as a matter of administrative
discretion, to implement concerning our review of draft rules
under Executive Order No. 12291 and to set forth our policy on
disclosure of agency regulatory program drafts under Executive
Order No. 12498.
Current Procedures
These new procedures supplement our current procedures. As you
are aware, Executive Order No. 12291 establishes certain
procedures; the Administrative Procedure Act sets forth
procedural and substantive requirements that govern agency
action; other statutes establish procedures; and OIRA has adopted
its own internal rules concerning its review of draft rules under
Executive Order No. 12291. Furthermore, Departments and Agencies
usually have established rules or practices to implement their
rulemaking activities.
Attached to this memorandum are copies of some of the relevant
materials concerning our reviews and procedures. Several of the
most important features of these current procedures are:
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Reviews under Executive Order No. 12291
o Rules must meet statutory requirements. Executive Order No.
12291 reviews cannot result in rules not authorized by law or
rules that do not carry out statutory requirements.
o Rulemaking decisions are made by agency heads. Executive
Order No. 12291 makes it clear that the rulemaking authority
of the agency head is not displaced by the Order.
o Rules must be based on the agency record. Executive Order
No. 12291 cannot cause rulemaking decisions that are not
supported by the agency rulemaking record. The law requires
that all agency decisions must be rationally based on
information in the agency record.
o Requirements of Executive Order No. 12291 apply only to the
extent permitted by law. If there is a conflict between the
Executive Order or the President's regulatory principles in
Executive Order No. 12291 and the law, the law governs.
Current OIRA Procedures
o Only the Administrator and Deputy Administrator within OIRA
(or someone specifically designated by them) may communicate
with someone who is not employed by the Federal Government on
regulations submitted to OIRA for review under Executive
Order No. 12291.
o Written materials received from anyone not employed by the
Federal Government are made available in OIRA's public
reading room for review by the public.
o OMB has advised persons who wish to send us information about
regulatory proposals to send information to the rulemaking
agency, with a copy to us, so that the material may be made a
part of the agency record.
o In general, OIRA provides written reasons to the agency
whenever OIRA returns a regulation to an agency for further
review because it is not consistent with the President's
regulatory principles.
o OIRA issues full reports annually on the disposition of all
rules reviewed under Executive Order No. 12291, including a
list of all returned rules.
New Procedures
1. OIRA will make available, upon written request made to OIRA
after publication of an ANPRM or NPRM in the Federal
Register, copies of any draft of the ANPRM or NPRM submitted
for OIRA's review under Executive Order No. 12291;
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2. Similarly, OIRA will make available, upon written request
made to OIRA after publication of the final rule in the
Federal Register, copies of any draft of the final rule
submitted for OIRA's review under Executive Order No. 12291;
3. OIRA will make available, upon written request made to OIRA
after the ANPRM, NPRM or the final rule is published in the
Federal Register, all written correspondence concerning the
draft submitted for OIRA's review under Executive Order No.
12291 that is exchanged between OIRA and the agency head.
"Correspondence" means any documents exchanged between OIRA
and the head of an agency.
These procedures are derived from provisions in S. 2433, as
reported from the Senate Governmental Affairs Committee, with
Administration support, in 1984. The Report on S. 2433 (No.
98-576, 98th Congress, 2d. Sess.) contains explanatory material
as to how these provisions would have been interpreted had
S. 2433 been enacted. We will be guided by that material in
implementing these first three provisions.
4. OIRA will send EPA copies of all written material concerning
EPA rules that OIRA receives from persons who are not
employees of the Federal Government;
5. OIRA will advise EPA of all oral communications concerning
EPA's rules, e.g., meetings, telephone calls, that OIRA
(i.e., the Administrator and Deputy Administrator) has with
persons who are not employees of the Federal Government; and
6. OIRA will invite EPA to all scheduled meetings with such
persons concerning EPA's rules;
In May 1985, we instituted with EPA on a trial basis other
procedures to better conform our Executive Order No. 12291 review
procedures to EPA's somewhat unique internal procedures and
statutory provisions concerning rulemaking. (See attached letter
dated May 30, 1985, Attachment D). These procedures are
practical, and EPA believes that they are useful. This
Memorandum revises those procedures with EPA and makes them a
part of OIRA's current procedures.
(Note: These procedures do not apply to information collection
requests under the Paperwork Reduction Act of 1980, even if such
requests are a part of a proposed agency rule. Other procedures
apply to such matters, see 5 CFR Part 1320.)
7. OIRA will apply these procedures (#4 through #6) to any other
Department or Agency that is subject to Executive Order No.
12291 if that agency elects to institute these procedures, or
any part of them.
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Procedures #4 through #6 presently apply only to EPA. Although
patterned upon EPA's statutory and internal procedures
nonetheless, OIRA is prepared to extend these procedures to other
agencies if the head of the agency. so requests. A current list
of agencies that have requested coverage will be maintained in
the public reading room.
In addition,
8. OIRA will make available upon written request to OIRA made
after the Regulatory Program is published, any agency draft
submission sent to OIRA under Executive Order No. 12498. A
copy will be available in the public reading room;
9. OIRA will continue to publish a complete annual accounting of
Executive Order No. 12291 activities;
10. OIRA will make available upon written request to OIRA made
after the end of a calendar month, a list of all draft
ANPRMs, NPRMs and draft final rules for which OIRA has
completed review under Executive Order No. 12291 during the
preceding month (and the length of our review for each); and
11. OIRA will place in its public reading room: all written
material received from persons outside the Federal Government
concerning agency rules; a list of all meetings with persons
outside the Federal Government pertaining to rules of an
agency if that agency elects to participate in procedure #6;
and a list of all other communications with persons outside
the Federal Government pertaining to rules of any agency if
that agency elects to participate in procedure #5.
Effective Date of New Procedures
The effective date of these new procedures is June 13, 1986, as
explained below.
For purposes of new procedures #1 through #3, OIRA will make
available in accordance with the conditions of those procedures,
all drafts of the rule (and written correspondence referred to in
procedures #3) if the review under Executive Order No. 12291
began on or after June 13, 1986, or was under review on that
date. OIRA reviews of draft ANPRMs, NPRMs and final rules will
be separate actions for purposes of disclosure. For example,
copies of a draft NPRM under procedure #1 will be available in
accordance with the conditions of procedure #1 after publication
of the NPRM, if it was pending on or submitted after June 13,
1986 for review under Executive Order No. 12291. Disclosure of
the draft NPRM would not be delayed until publication of a final
rule. The reviews are distinct events for disclosure purposes.
Similarly, if a review under Executive Order No. 12291 of a draft
NPRM was completed prior to June 13,1986, it would not be covered
by these new procedures. Drafts of the final rule would be
subject to procedure #2 if the final rule was pending on or
submitted after June 13, 1986.
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For purposes of procedures #4 through #6, the effective date will
be the date of receipt of the request by the head of an agency to
have these procedures apply. They apply as of June 13, 1986, for
EPA. (Trial procedures with EPA have been effective since May
30, 1985).
Procedure #8 will apply to drafts of the agency submissions for
the 1986 Regulatory Program and thereafter. The annual
accounting referenced in procedure #9 is an Appendix to the
annual Regulatory Program. The lists referred to in procedure
#10 and #11 will be available in OIRA's public reading room and
upon written request on the 10th day of the month following the
month for which the list is made. The first list will be
available August 10, 1986. All written material pertaining to
rules subject to Executive Order No. 12291 review received from
persons not employed by the Federal Government as described in
procedure #11 will be available within 3 to 5 days of receipt by
OIRA.
These new procedures and OIRA's existing procedures are intended
only to improve the internal management of the Federal
Government, and are not intended to create any right or benefit,
substantive or procedural, enforceable at law or in equity by a
party against the United States, its agencies, its officers or
any person.
A - Department of Justice/OLC Opinion dtd 2/13/81
B - Executive Order No. 12291
C - Executive Order No. 12498
D - OIRA Procedures #3
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Attachment A
~*# P C[ OF iI A- CD J U -
a
1(nitrb Matti Drpartmrnt of lusiur
Var,hington. D. C. 20530
.0
1 3 77 7$
MEMORA.'7 DUM
Re: Proposed Executive Order entitled "Federal Regulation"
The attached proposed Executive Order was prepared by
the office of Management and Budget in consultation with this
Office, and has been forwarded for the consideration of this
Department as to form and legality by the Office of Manaeernent
and Budget with the approval of the Director. The proposed
Order is designed to reduce regulatory burdens, to provide
for presidential oversight of, the administrative process,
and to ensure well reasoned regulations. The Order sets
forth a number of requirements that Executive Branch agencies
must adhere to in exercising their statutory rulemaking
authority. We conclude that the Order is acceptable as to
form and legality.
The Order has the following major provisions. Agencies
must take"action only if the potential- benefits outweigh the
social costs; attempt to maximize social benefits; choose
the least costly alternative in selecting among regulatory
objectives; and set priorities with the air of maximizing
net benefits. All of these requirements must be followed
"to the extent permitted by law." The Order would require
agencies to prepare for each "major rule" a Regulatory Impact
Analysis (RIA) setting forth a description of the potential
costs and benefits of the proposed rule, a determination of
its potential net benefits, and a description of alternative
approaches' that might substantially achieve regulatory goals
at a lower cost. Agencies would be required to determine
that any proposed regulation is within statutory authority
and that the factual conclusions upon which the rule is
based are substantially supported by the record viewed as a
whole. The Director of the Office of Management and Budget
and the Presidential Task Force on Regulatory Relief would
be given authority, inter alia, to designate proposed or
existing rules as major,ru es, to prepare uniform standards
for measuring costs and, benefits, to consult with the agencies
concerning preparation of RIA'r, to state approval or disapproval
of Rlh's and rules on the administrative record, to require
agencies to respond to these views (and to defer rulemaking
while so consulting), and to establish schedules for review
and possible revision of existing major rules. The Order
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would require agencies to defer rules that are pending on a the date of its issuance, including rules
lytef fectiven and
issued as final rules but terms, the Order
to reconsider them under the Order. By
Mould create no substantive or doraitsirepresentativese
by a patty against the United-States
although the RIA would becor+e part of the adrr,inistrative
rgtord for judicial review of final rules.
1. Legal Authority: In general
The President's authority to issue the proposed Executive
Order derives fzam his constitutiona Cto " onst~,eArt eII,
that the Laws be faithfully exec
S 3. It is well established that this provision authorizes cutive Branch, the President, as head of the
in e" their cons truct~ons o~ these
and guide" Executive officers
whichtArticleeiiho' theunitary
statutes under which they tlawsorder
and uniform execution of the
Constitution evidently contemplated talone.~esliyng gvneUnl=
executive power in the President
States, 272 U.S. 52, 135 (1926).1/
The supervisory authority recognized in Myers- is based on e pr the distinctive constitutional presidenthwi thethee f unct ion
?ta}:e Care" clause charges
of coordinating the execution of many statutes simultaneously:
"Unlike an administrative commission confined toth thePensorcement
of the statute under which ithazsad MithGtaking care that a
g
1/ In buckle v. aleo, ?
supreme Court held t hat any "significant governmental duty
exercised pursuant to a public law" must be performed idea aK
"Officer of the United States," appointed by the S l. 2* or the Head of a DepartmpTecognizes Art.impoIlt pre- e
Me believe that this holding
the President's supervisory powers over those exerciser.
serving
statutory duties, subject of course to the power of Congress c
confine presidential supervision by appropriate legislation.
See also n.7, infra.
424 U S. 1, 140-41 (197b), the
is a constitutional officer c
'Hass of legislation' be 57x~ecut02d (i952) n (Vitow-n nsonSheet L Tube tin;
Saw er, 343 U.S.
Co. v.
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oreaver, because the President is the on only electetuofficial
tt
who has a national constituent}, he is
design anA_ execute a uniform method for u dertaving regulatory
initiatives that responds to the wil of Public
whole .2/ in fulfillment Ulf of the President' aoeoordinatedl systems
responsibility, the proposed Order promotes the inter-
of aregulation, ensuring a measure of unifotsr.ity r of pr4tation and execution of t~ni tted conf us ion? astndat
incons istencv
If .no such guidance were pe open-ended statutes in
eoold result as agencies interpreted odiffering ways.
Nevertheless, it is clear thmattthe ion'enactedlby
of supervisory powers must confor
Congress.3/ In issuing directives to govern the Executive Branch, tFe president may not, as a general proposition,
require or permit agencies to transgress boundaries set by
Congress. Youn stown Sheet i Tube Co. v. Stn mi 343thU.aS.
579 (1952). It is with these approached.
the proposed Order must be ap proa
We believe that an inquiry into congressional intent in
enacting statutes delegating rulemaking authority will usually
support the legality of preside`menlConrresssdelegatesllegislative
by Executive Branch agencies.
power to Executive agencies, it is thossupee
perform their functions subject P
on matters of both substance and procedure. This is not to
say that Congress never intends in a specific case to restrict presidential. supervision of an Executive agency; but it
' should not be presumed to hcva subordinatenExecutiveeofficial
to
ruler?akirg power directly
rather than the President. indeed, after 'Myers it is unclear
to what extent Congress may insulate Executive agencies from
presidential supervision. Congress is also aware of the
ki
119,
Bru Presidential Power and Administrative Rulema
,
Z/ See
88 Y T L.J. 45 , 461-62 (1978) . s could 3/ In certain circumstances, powers,
impermissibly upon the Preside
that issue does not arise here.
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 I1 Y _.. I I I I '
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comparative insulation given to the independent regulatory
agencies, and it has delegated rulemaking
agencies when it has sought to
By contrast, the heads of nou=e^ofptheepresidente5wholnay
their positions at the pleas It would be anomalous
remove them from office for any reason.
to ttribute to Congress an intention to immunize fr c'tp esiden:ia
supervision those who are, by force of Ar. 1, reroval when their performance in exercising their statutory
duties displeases the President.
Of course, the fact thatuth TitvitonsuPtrvbSehdecision,acinc
tional and implied statutory a
by Executive Branch agencies does t delimit howetheverextthaentt of
permissible supervision. It does nog9
supervision is more readily justified when it does not tepurport
wholly to displace, but only to guide and limit,
which Congress has allocated to a particular subordinate
official. A wholesale displacrmtntnmight
the relevantiof ficialer.t
with the statute vesting autho y i
See Myers v. United States, supra , at 135: Of course there
may e uties so peculiarly-and specifically committee] to
icerssion
the discretion of a particular as to the' a
whether the President may in a particular instance."
interpretation of his statutory duty
This suggestion is based on the view that Congress may consti-
ibili s
conclude that some particular statutory
owi thoutt the
tutionally
officers
should be carried out by pa ad a President's revision, bec~atisesand institutional competence
having the technical exp_r
that Congress intended the decisionmaker to
on administra~i~~E
Under this analysis, of eoursethan greater ones. This
discretion are easier to support Office has often taken the position thatsth President rayi-
en-making ns
consult with those having statutory
bilitiest and may require them to consider statutorily relevant
H . Friend y, The Fe eral Administrative Agencies
Cf.
4
(1962) (discussing concept of "agency expertise" as reason
for delegation of power to particular agencies). The fivers
Court reaffirmed, however, that even such officersmayabe
dismissed at the pleasure of the President.
135.
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ratters that he deems appropriate, as lon; as .the President
does not divest the officer of ultimate statutory authority-5/
Of course, the President has the authority to inform an
appointee that he will be discharged if he fails to base his
decisions on policies the President seeks to implement.6/
A. The Order would impose requirements that are both pro-
cedural and substantive in nature. Procedurally, it'b:ould
direct agencies to prepare an RIA assessing the costs and
benefits of major rules. We discern no plausible legal
objection to this requirement, which like most procedural
requisites is at most an indirect constraint on the exercise
of statutory discretion. At least as a general rule, the
President's authority of "supervislion) in his administrative
control,' Myers v. United States, supra, at 135, permits
him to require the agencies to follow procedures that are
designed both to promote "unitary and uniform execution of the
laws" and to aid the President in carrying out his constitutional
duty to propose legislation. See U.S. Const., Art. II, S
3. %7e believe that a require&-nent that the agencies perform
cost-benefit analysis meets these criteria. Further, the
President's constitutional right to consult with officials
in the Executive Branch permits him to require them to inform
him of the costs and benefits of proposed action.7/ In our
view, a requirement that rulemaking authorities prepare
an RIA is the least that Myers must mean with respect to the
President's authority to "supervise and guide" Executive
officials.
B. Substantively, the Order would re;uire agencies to
exercise their discretion, within statutory limits, in accor-
dance with the principles of cost-benefit analysis. more
5/ See generally, 1 Ops. Office of Legal Counsel Nos. 77-21,
77-56 (1977).
6/ See note 4 supra .
7/ See U.S. Const. , Art. II. 2 (President may "require
The Opinion, in writing, of the principal Officer in each of the
executive Departments, upon any Subject relating to the Duties
of their respective Offices").
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complex legal questions are raised by this requirement.
Some statutes may prohibit agencies from basing a regulatory
decision on an assessment of the costs and benefits of the
proposed action. See, e. 0, FPA v. National Crushed Stone
Ass'n, 101 S. Ct. 3 (98) . The Order, however, expressly
recognizes this possibility by requiring agency adherence to
principles-of cost-benefit analysis only "to the extent
petmitted by law.' The issue is thus whether, when cost-benefit
analysis is a statutorily authorized basis for decision, the
president may require Executive agencies to be guided by
principles of cost-benefit analysis even when an agency,
acting without presidential guidance, might choose not to do
so. %'le believe that such a requirement is permissible.
First, there can be little doubt that, when a statute does no.,
expressly or implicitly preclude it, an agency may takchinto
account the costs and benefits of proposed action. a
calculus would simply represent a logical method of assessing
whether regulatory action authorized by statute would be
desirable and, if so, what four, that action should take. In
our view, federal courts reviewing such actions would be un-
likely to conclude that an assessment of costs and benefits
was an impermissible basis for regulatory decisions.
Second, the requirement would not exceed the President's
powers of "supervision." It leaves a considerable amount of
decisionmaking discretion to the agency. Under the proposed
Order, the agency head, and not the President, would be .
required to calculate potential costs and benefits and to
Zeternine whether the benefits justify the costs. The agency
would thus retain considerable latitude in determining
whether regulatory action is justified and what form such,
action should take. The limited requirements of the proposed
Order should not be regarded as inconsistent with a legislative
'decision to place the basic authority to implement a statute
in a particular agency. Any other conclusion would create
a possible collision with constitutional principles, recognized
in Evers, with respect to the President's authority as head
of the Executive Branch.
lieve that the President would not exceed
b
e
C. he
any limitations on his authority by authorizing the Task
Force and the Director to supervise agency rulemaking as the
Order would provide. The Order does not empower the Director
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or the Task Force to displace the relevant agencies in dischergir e their statutory functions nassessng ions18/ aThewfunetiontof the
costs and benefits of proposed act
Task Force and the Director would be supervisor inonature.
It would include such tasY.s as the supp
data, the development and implementation toflincorrectfstatlnentss
of,methodology, the identification v _
of;fact, and the placement in the administrat
o not appear
statement disapproving agency conclusions
to conform to the principles expressed in the President's
be
Order. Procedurally, the Director and the Task Force wolit
authorized to requite an agency to defer rulemaking whilue responded to their views concerning proposed agency acion.
This power of consultation would not, however,includeiauthority
to reject an agency's ultimate judgment,
law, that potential benefits outweigh costs, that priorities
under the statute compel a particular course of action, or
that adequate information is available to justify regulation.
As to these natters, the role he Theclimiteddpoherlof
Force is advisory and consultative.
supervision embodied in the proposed Order is, therefore
supervise
consistent with the president's recog
the Executive Branch without displacing functions placed by
law in particular agencies.
11
The paperwork .e uction Act of 1980, Pub. L. No. 96-511, 9.
63
T7 -
Stat. 2812, provides some implied statutory support for the
Order by giving 0MB a direct role in coordinating a ency
regulations that impose paperwork burdens on the publi.
ct to non-independent agencies the Act gives the
Di respect rove "unreasonable" agency collectic?.
Director authority to disapp C The Act does not
of information requests. S 3504(=cve )the accor:panying rule
authorize him, however, to disapprove
itself insofar as the two aresa6separable. See 5 3518(e); S.
Rep. no. 930, 96th Cong., 26 5s
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II. Sus erasion of pro osed and final regulations.
agencies
The Order requires branch
as
of
suspend the effective date
final rules, but have not becone legally effective; atdb(2)
to reconsider rules taare proposed
f inalbrules~,eagnot e:en
encias must
ma~e final . After suspension
rEcons ider all such rules in accordance with
ethe O permitted
Terse requirements are impolwhen ajudicial or statutory
by law" and are thus inapplicable
deadline requires prompt a~oadhere,togthelrequireaen:s
in complying with these directives,
of the Administrative Procedure Act (APA), 5 U.S.C. S 551 et
seq. , and all other laws.
f1
For rules that have not yre uirer~ents.
1-gencies need
imposes no special procedural q
not follow the notice and comment proceSuies of 5 U.S.C.to
S 553, for nothing in that provision final
allow a period for comment on a decision to delay
adoption of a proposed The Yyr'aY have
however, be subject to iSee
to furnish a reasoned epga2dt1323f for that . 1979-5;
ASG Indust. v. CPSC, 593 56.4 F.2d 458,
Action or Chil rent's Television v. FCC, that the
478_79 (D.C. Cir. 11111111111111111111- 977). The explanation here --
agency needs time to prepare an RIA required by Executive
Order -- is, we believe, sufficient.
The second category of regulations covered by the Executive
S.C.
Order raises somewhat different=oclegal eduressmust?bevfollowed?for
S 553(b), notice and comment p ood cause finds (and
"rulemaking" unless "the agency for g
incorporates the finding and a brief statement of reasons
therefor in the rules issued~nethat cessaryicoracontraryctorthedure
thereon are impracticable, u
public interest." Under 5 U.S.C. S 351(5), the term "rule-
making" is defined as "agency process
ing, or repealing a rule." The init
whether an agency's decision to "suspend" afi al put notral
553rulemaking" which triggers safeguards of S
effective rule is
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In a recent remoranlum, this Office concluded that a
60-day suspension ofheffective
ruleTaking finaltherulree
not, in general, be regarded of the APA.9/ tae"based our conclusion o-n "the clear congressional
intent to give agencies discretion to extend the effective
date provision beyond 30 days" and the absence of statutory
la'Aguage or history o agency action Congress intendedeto
date is the sort 9 Y a
include within the procedural requirements of S -553(b).'
Nevertheless, we believe that a short-term suspension of the
effectiveness of a final rule is not the equivalent of an
indefinite suspension Coupled with a process designed to
review the basis for the rule, with a view to establishing a
new rule. Although the former seems fairly characterized as
a mere extension of an effective date under 5 553(d), the
latter should probably be characterized as "agency process
for formulating, amending, or repealing a rule' for purposes
of S 553(b).
The difference between these two measures for purposes
of 5 553 becomes clear upon-examination of the sequence of
events that is expected to take place under each of them.
Under the President's Memorandun of January 29, 1981, agencies
.are to defer the effective dates of final rules for sixty days
in order to review them. The completion of that review will
point to either of two dispositions. The rule might be allowed
to take effect as published in final form, or it might be
withdrawn for some proposed change. The first disposition
would require no new procedures. The second disposition would
surely contemplate an amendment or repeal of the earlier rule
subject to S 553's public procedures, but the earlier deferral
of the rule's effective date would remain just that.10/
Under the proposed Order, the situation is analogous
to the second possible disposition under the President's
Memorandum. The Order, by requiring careful cost-benefit
analysis of rul~sedthrough
=ulemakingRon theprocess,
prelirinaryeRlAeandate
notices of prop
Memorarrum of January 28, 1981, for Honorable David Stock-.an,
Director, office of Management and Budget, from Larry L.
Sires, Acting Assistant Attorney General, Office of Legal
Counsel.
9 -
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reexamination of the rule at the appropriate time. The
issue to be decided at the time the rule is suspendedri definitely
for the Order's process to take place
which has already been promulgated in final form, should be r rev allowed to have interim effect
while
decision isdone ofi'f rr,ulatinc,
the agency. We believe that this amending, or repealing a rule" that requires either notice
a~ comment procedures or good cause for dispensing
triem under S 553(b). Admittedly, the difference between a
short deferral of the effectiveness of aorule and aneindeefinite
suspension for reexamination is in part of deg
there is also a difference in kind: once
tha edecision toong begin
no lr
the process of amending a rule is made,
plausible argument that a rule that was to take effect is
merely to be delayed for a brief period.
Notice and comment procedures
oLo tundergoezeof the examinationl~1
effectiveness of a rule that is due
under the Order should take the following form. Tohesufficyent
eomment, panri opportunity
should defer the rule's f not iceeanddate
to allow a short time for
for the agency to consider the comments and decide the issue
of interim, effectiveness, anthetpurposesf ofeSL553(d)e
takes effect sufficient to meet
In deciding on the interim effectiveness of finalirules
subject to the order's procedures, the final quests.
whether and under what citcSandccommentcproceduresave?9blic
cause to dispense with notice
procedures on effectiveness
impracticable, or contrary to
10/ ?dr i tted y, one of the purposes of the 30-day effective
ate provision is to allow ageSeeeFinalcReport,eAttorney over-
sights in final regulations. General's Committee-on Adminis Stive ProCedure114 15 (1941);
Sannon v. United States, 460 F. Supp. 467 (S.D.
that agencies
gig). This purpose, however, does not suggest
may make corrections, let alone withdraw rules, during the
period between a rule's Pnornshowingfgoodleausete
without offering public procedures
for dispensing with Proposed -- or
ofeS
repeals -- would of course
553(b).
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s the question whether sould be it
the
fully ventilated in
is clear that interim ef fect could
short-term compliance cos
earnent might be needed whits ethe arly supstantial arguments for Y .
compliance costs are not likely to be wasted.
? Such arguments must, of course, be assessed on a case-by-
case basis. If the available record indicates that the costs
of the rule at issue are~eteffectivesubstantial
mayaitselftbehcontroversia:
to allow the rule to be e a lic
the likelihood that a courocewill duralerequirements ofdthebAPA
comment increases. The pr
will, therefore, vary with the size and immediacy of the burdens
imposed by the rule and the need for public comment on a
decision to withdraw a final but not effective rule.
III . Regulatory Review by Agency Heads.
Section 4 of the proposed Order would require agency
hems to make express determinations that regulations they
issue are authorized by 1twThand esearequirements aretmeantttolals
in the rulemaking record.
assure agency compliance with existing legal principles that
rules must be authorized by law, and that they should be
adequately supported by a factual basis. Accordingly, we
find no legal difficulty with them. In particular, they do
not purport to change generally applicable statutory standards
for judicial review of agency action, see 5 U.S.C. 5 706,
They also do not purport
speavecialsuly such an applicable effect.
any not have
standards, such as those
ato nd alter could
concerning the evidentiary standard that must be met to
uphold a given rule, appearing in statutes governing a
particular agency.
On the other hand, the section would add the significantly
new procedural requirements that agency heads expressly
determine that the legal and factual requisites for a rule
have been met. The first requirement reflects the principle,
central to administrative law, that agency action must
Stock
guided by the supremacy of law." St. Joseph
Co. v. United St_, 298 U.S. 38, 84 (1936) (Brandeis, J.).
rinciple protects against excess of power and abusive
This principle-
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exercise of power by administrators. See Report of the U.S.
Attorne General's Comm.. on Administrate c Procedure, AdrrlnistrF_..?.
Proce ure in Governnent Agencies, S. Doc. No. 8, 77th Cong.,
st Sess. 76 (1941). The requirement that agency heads
determine that a rule factualtnaterisls
be Yore the agency me
basis must be found to exist. This second requirene nt should
net be confused with a "substantial evidence" standard of
judicial review, which could be imposed only by -statute. It
embodies Recommendation 74-4 (subpart 3) of the Administrative
Conference of the United States, I CFR 5 305.74.4, which urges
that for a rule to be considered rational, it should be
adequately grounded in a factual basis. This requirement is
consistent with the approach of courts that have carefully
reviewed agency action under the "arbitrary and capricious"
standard of the Administrative Procedure Act, 5 U.S.C. 5 706
(2)(A). See, e. g.# Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir.)
(en bane), cert. denied, 426 U.S. 94T-(1976).
IV. Judicial Review.
The Order states that it is not intended to create any
rights or benefits enforceable by a party to litigation
against the United States, its agencies, or any other person.
At the same. time, it provides that determinations of costs
and benefits f and the RIA itself, are meant to form part of
the agency record for purposes of judicial review. The
effect of this provision is to preclude direct judicial
review of an agency's compliance with the Order. The provision
makes clear the President's intention not to create private
rights, an intention that should be controlling here. See
Independent Meat Packers Ass'n v. Butz, 526 F.2d 228 (8th
fir. 1975), cert. denied, 424 U.S. 66 (1976) (no judicial
enforcement o Executive order requiring consideration of
inflationary impact of regulations, in part because such
Order had not been issued pursuant to delegation from Congress);
Le al Aid Soc. of Alameda Count v. Brennan, 608 F.2d 1319
9th ir. 197 ) (~u icia review available of compliance
with an Executive Order that had been ratified by Congress).
Even without the provision, compliance with the Order would
probably be immunized from review because the Order has not
been. promulgated pursuant to a specific grant of authority
from Congress to the President and thus lacks the "force and
effect of law" concerning private parties. See Independent
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Butz, supra; National RendereTS Assn
Meat packers Assn V. -I,1 1~let Cir. 1970; Hiatt
EPA, 54 F? c 281, . 457, 50 - 502
GrainFeed, Inc.?V. Ber land, 446 F. SuPP
?litnce
n, g The ar on judicial review of gency fro,
ID. Ka t
with the order does not, of aourae, pro
w ring a constitutional or statutory attakek on the n pursuahtgaltoiy
of the Order itself or of agency action
ils requirements.
that will be
Because the regulatory impact analysis of the agency record
required by the Order .Will become part
for judicial review, courts may consider ithe RIA inndete hinirg
whether an agency's action under review
the governing statutes. This, ~akincourse, is true of all
matters appearing in the ruler 9 record.
V. Conclusion
The proposed Executive prder is acceptable as to fort and
legality.
Larry -1 . Simms
Acting Assistant Attorne enseeneral
Office of Legal
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Attachment B
Thursday
February 19, 1981
Part III
The President
Executive Order 12291-
Federal Regulation
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13193
Federal Register
Vol. 46. No. 33
Thursday, February 19. 1981
Presidential Documents
Executive Order 12291 of February 17, 1981
The President Federal Regulation
By the authority vested in me as President by the Constitution and laws of the
United States of America, and in order to reduce the burdens of existing and
future -regulations, increase agency accountability for regulatory actions, pro-
vide for presidential oversight of the regulatory process, minimize duplication
and conflict of regulations, and insure well-reasoned regulations, it is hereby
ordered as follows:
Section 1. Definitions. For the purposes of this Order:
(a) "Regulation" or "rule" means an agency statement of general applicability
and future effect designed to implement, interpret, or prescribe law or policy
or describing the procedure or practice requirements of an agency, but does
not include:
(1) Administrative actions governed by the provisions of Sections 556 and 557
of Title 5 of the United States Code;
(2) Regulations issued with respect to a military or foreign affairs function of
the United States; or
(3) Regulations related to agency organization, management, or personnel.
(b) "Major rule" means any regulation that is likely to result in:
(1) An annual effect on the economy of $100 million or more;
(2) A major increase in costs or prices for consumers, individual industries.
Federal, State, or local government agencies, or geographic regions; or
(3) Significant adverse effects on competition, employment, investment, pro-
ductivity, innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic or export markets.
(c) "Director" means the Director of the Office of Management and Budget.
(d) "Agency" means any authority of the United States that is an "agency"
under 44 U.S.C. 3502(1), excluding those agencies specified in 44 U.S.C.
3502(10).
(e) "Task Force" means the Presidential Task Force on Regulatory Relief.
Sec. 2. General Requirements. In promulgating new regulations, reviewing
existing regulations, and developing legislative proposals concerning regula-
tion, all agencies, to the extent permitted by law, shall adhere to the following
requirements:
(a) Administrative decisions shall be based on adequate information concern-
ing the need for and consequences of proposed government action;
(b) Regulatory action shall not be undertaken unless the potential benefits to
society for the regulation outweigh the potential costs to society;
(c) Regulatory objectives shall be chosen to maximize the net benefits to
society;
(d) Among alternative approaches to any given regulatory objective, the
alternative involving the least net cost to society shall be chosen; and
(e) Agencies shall set regulatory priorities with the aim of maximizing the
aggregate net benefits to society, taking into account the condition of the
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13194 Federal Register / Vul. 46. No. 33 / Thursday, February 19. 1981 / Presidential Documents
particular industries affected by regulations, the condition of the national
economy, and other regulatory actions contemplated for the future.
Sec. 3. Regulatory Impact Analysis and Review.
(a) In order to implement Section 2 of this Order, each agency shall, in
connection with every major rule, prepare, and to the extent permitted by law
consider, a Regulatory Impact Analysis. Such Analyses may be combined with
any Regulatory Flexibility Analyses performed under 5 U.S.C. 603 and 604.
(b) Each agency shall initially determine whether a rule it intends to propose
or to Issue is a major rule, provided that, the Director, subject to the direction
of the Task Force, shall have authority, in accordance with Sections 1(b) and 2
of this Order, to prescribe criteria for making such determinations, to order a
rule to be treated as a major rule, and to require any set of related rules to be
considered together as a major rule.
(c) Except as provided in Section 8 of this Order, agencies shall prepare
Regulatory Impact Analyses of major rules and transmit them, along with all
notices of proposed rulemaking and all final rules, to the Director as follows:
(1) If no notice of proposed rulemaking is to be published for a proposed major
rule that is not an emergency rule, the agency shall prepare only a final
Regulatory Impact Analysis, which shall be transmitted, along with the pro-
posed rule, to the Director at least 60 days prior to the publication of the major
rule as a final rule;
(2) With respect to all other major rules, the agency shall prepare a prelimi-
nary Regulatory Impact Analysis, which shall be transmitted. along with a
notice of proposed rulemaking, to the Director at least 80 days prior to the
publication of a notice of proposed rulemaking, and a final Regulatory Impact
Analysis, which shall be transmitted along with the final rule at least 30 days
prior to the publication of the major rule as a final rule;
(3) For all rules other than major rules, agencies shall submit to the Director, at
.least 10 days prior to publication, every notice of proposed rulemaking and
final rule.
(d) To permit each proposed major rule to be analyzed in light of the
requirements stated in Section 2 of this Order, each preliminary and final
Regulatory Impact Analysis shall contain the following information:
(1) A description of the potential benefits of the rule, including any beneficial
effects that cannot be quantified in monetary terms. and the identification of
those likely to receive the benefits;
(2) A description of the potential costs of the rule, including any adverse
effects that cannot be quantified in monetary terms, and the identification of
those likely to bear the costs;
(3) A determination of the potential net benefits of the rule, including an
evaluation of effects that cannot be quantified in monetary terms;
(4) A description of alternative approaches that could substantially achieve
the same regulatory goal at lower cost, together with an analysis of this
potential benefit. and costs and a brief explanation of the legal reasons why
such alternatives, if proposed, could not be adopted; and
(5) Unless covered by the description required under paragraph (4) of this
subsection, an explanation of any legal reasons why the rule cannot be based
on the requirements set forth in Section 2 of this Order.
(e) (1) The Director, subject to the direction of the Task Force, which shall
resolve any issues raised under this Order or ensure that they are presented to
the President, is authorized to review any preliminary or final Regulatory
Impact Analysis, notice of proposed rulemaking, or final rule based on the
requirements of this Order.
(2) The Director shall be deemed to have concluded review unless the Director
advises an agency to the contrary under subsection (f) of this Section:
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(A) Within 66 days of a submission under subsection (c)(1) or a submission of
a preliminary Regulatory Impact Analysis or notice of proposed rulemaking
under subsection (c)(2);
(B) Within 30 days of the submission of a final Regulatory Impact Analysis
and a final rule under subsection (c)(2); and
(C) Within 10 days of the submission of a notice of proposed rulemaking or
final rule under subsection (c)(3).
(f) (1) Upon the request of the Director, an agency shall consult with the
Director concerning the review of a preliminary Regulatory Impact Analysis
or notice of proposed rulemaking under this Order,? and shall, subject to
Section 8(a)(2) of this Order, refrain from publishing its preliminary Regulatory
Impact Analysis or notice of proposed rulemaking until such review is con-
cluded.
(2) Upon receiving notice that the Director intends to submit views with
respect to any final Regulatory Impact Analysis or final rule, the agency shall,
subject to Section 8(a)(2) of this Order, refrain from publishing its final
Regulatory Impact Analysis or final rule until the agency has responded to the
Director's views, and incorporated those views and the agency's response in
the rulemaking file.
(3) Nothing in this subsection shall be construed as displacing the agencies'
responsibilities delegated by law.
(g) For every rule for which an agency publishes a notice of proposed
rulemaking, the agency shall include in its notice:
(1) A brief statement setting forth the agency's initial determination whether
the proposed rule is a major rule, together with the reasons underlying that
determination; and
(2) For each proposed major rule, a brief summary of the agency's preliminary
Regulatory Impact Analysis.
(h) Agencies shall make their preliminary and final Regulatory Impact Analy-
ses available to the public.
(i) Agencies shall initiate reviews of currently effective rules in accordance
with the purposes of this Order, and perform Regulatory Impact Analyses of
currently effective major rules. The Director, subject to the direction of the
Task Force, may designate currently effective rules for review in accordance
with this Order, and establish schedules for reviews and Analyses under this
Order.
Sec. 4. Regulatory Review. Before approving any final major rule. each agency
shall:
(a) Make a determination that the regulation is clearly within the authority
delegated by law and consistent with congressional intent, and include in the
Federal Register at the time of promulgation a memorandum of law supporting
that determination.
(b) Make a determination that the factual conclusions upon which the rule is
based have substantial support in the agency record, viewed as a whole, with
full attention to public comments in general and the comments of persons
directly affected by the rule in particular.
Sec. S. Regulatory Agendas.
(a) Each agency shall publish, in October and April of each year, an agenda of
proposed regulations that the agency has issued or expects to issue. and
currently effective rules that are under agency review pursuant to this Order.
These agendas may be incorporated with the agendas published under 5
U.S.C. 602, and must contain at the minimum:
(1) A summary of the nature of each major rule being considered, the
objectives and legal basis for the issuance of the rule, and an approximate!
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13196 Federal Register / Vol. 46, No. 33 / Thursday, February 19, 1981 / Presidential Documents
schedule for completing action on any major rule for which the agency has
issued a notice of proposed rulemaking;
(2) The name and telephone number of a knowledgeable agency official for
each item on the agenda; and
(3) A list of existing regulations to be reviewed under the terms of this Order,
and a brief discussion of each such regulation.
(b) The Director, subject to the direction of the Task Force, may, to the extent
permitted by law:
(1) Require agencies to provide additional information in an agenda; and
(2) Require publication of the agenda in any form.
Sec. 6. The Task Force and Office of Management and Budget.
(a) To the extent permitted by law, the Director shall have authority, subject
to the direction of the Task Force, to:
(1) Designate any proposed or existing rule as a major rule in accordance with
Section 1(b) of this Order'
(2) Prepare and promulgate uniform standards for the identification of major
rules and the development of Regulatory Impact Analyses;
(3) Require an agency to obtain and evaluate, in connection with a regulation,
any additional relevant data from any appropriate source;
(4) Waive the requirements of Sections 3, 4, or 7 of this Order with respect to
any proposed or existing major rule;
(5) Identify duplicative, overlapping and conflicting rules, existing or pro-
posed, and existing or proposed rules that are inconsistent- with the policies
underlying statutes governing agencies other than the issuing agency or with
the purposes of this -Order, and, in each such case, require appropriate
interagency consultation to minimize or eliminate such duplication, overlap, or
conflict;
(6) Develop procedures for estimating the annual benefits and costs of agency
regulations, on both an aggregate and economic or industrial sector basis, for
purposes of compiling a regulatory budget;
(7) In consultation with interested agencies, prepare for consideration by the
President recommendations for changes in the agencies' statutes; and
(8) Monitor agency compliance with the requirements of this Order and advise
the President with respect to such compliance.
(b) The Director, subject to the direction of the Task Force, is authorized to
establish procedures for the performance of all functions vested in the Direc-
tor by this Order. The Director shall take appropriate steps to coordinate the
implementation of the analysis, transmittal, review, and clearance provisions
of this Order with the authorities and requirements provided for or imposed
upon the Director and agencies under the Regulatory Flexibility Act, 5 U.S.C.
601 et seq., and the Paperwork Reduction Plan Act of 1980, 44 U.S.C. 3501 et
seq.
Sec. 7. Pending Regulations.
(a) To the extent necessary to permit reconsideration in accordance with this
Order, agencies shall, except as provided in Section 8 of this Order, suspend
or postpone the effective dates of all major rules that they have promulgated
in final form as of the date of this Order, but that have not yet become
effective, excluding:
(1) Major rules that cannot legally be postponed or suspended;
(2) Major rules that, for good cause, ought to become effective as final rules
without reconsideration. Agencies shall prepare, in accordance with Section 3
of this Order, a final Regulatory Impact Analysis for each major rule that they
suspend or postpone.
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(b) Agencies shall report to the Director no later than 15 days prior to the
effective date of any rule that the agency has promulgated in final form as of
the date of this Order, and that has not yet become effective, and that will not
be reconsidered under subsection (a) of this Section:
(1) That the rule is excepted from reconsideration under subsection (a).
including a brief statement of the legal or other reasons for that determination:
or
(2) That the rule is not a major rule.
(c) The Director, subject to the direction of the Task Force, is authorized, to
the extent permitted by law, to:
(1) Require reconsideration, in accordance with this Order, of any major rule
that an agency has issued in final form as of the date of this Order and that
has not become effective; and _
(2) Designate a rule that an agency has issued in final form as of the date of
this Order and that has not yet become effective as a major rule in accordance
with Section 1(b) of this Order.
(d) Agencies may, in accordance with the Administrative Procedure Act and
other applicable statutes, permit major rules that they have issued in final
form as of the date of this Order, and that have not yet become effective, to
take effect as interim rules while they are being reconsidered in accordance
with this Order, provided that. agencies shall report to the Director, no later
than 15 days before any such rule is proposed to take effect as an interim rule,
that the rule should appropriately take effect as an interim rule while the rule
is under reconsideration.
(e) Except as provided in Section 8 of this Order, agencies shall, to the extent
permitted by law, refrain from promulgating as a final rule any proposed
major rule that has been published or issued as of the date of this Order until
a final Regulatory Impact Analysis. in accordance with Section 3 of this Order.
has been prepared for the proposed major rule.
(f) Agencies shall report to the Director, no later than 30 days prior to
promulgating as a final rule any proposed rule that the agency has published
or issued as of the date of this Order and that has not been considered under
the terms of this Order:
(1) That the rule cannot legally be considered in accordance with this Order.
together with a brief explanation of the legal reasons barring such considera-
tion; or
(2) That the rule is not a major rule, in which case the agency shall submit to
the Director a copy of the proposed rule.
(g) The Director, subject to the direction of the Task Force, is authorized. to
the extent permitted by law, to:
(1) Require consideration, in accordance with this Order, of any proposed
major rule that the agency has published or issued as of the date of this Order:
and
(2) Designate a proposed rule that an agency has published or issued as of the
date of this Order, as a major rule in accordance with Section 1(b) of this
Order.
(h) The Director shall be deemed to have determined that an agency's report
to the Director under subsections (b), (d), or (f) of this Section is consistent
with the purposes of this Order, unless the Director advises the agency to the
contrary:
(1) Within 15 days of its report, in the case of any report under subsections (b)
or (d): or
(2) Within :10 days of its report, in the case of any report under subsection (f).
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13198 Federal Register / Vol. 46. No. 33 / Thursday, February 19, 1981 / Presidential Documents
(i) This Section does not supersede the President's Memorandum of January
29, 1981, entitled "Postponement of Pending Regulations", which shall remain
in effect until March 30, 1981.
(j) In complying with this Section, agencies shall comply with all applicable
provisions of the Administrative Procedure Act, and with any other proce-
dural requirements made applicable to the agencies by other statutes.
Sec. 8. Exemptions.
(a) The procedures prescribed by this Order shall not apply to:
(1) Any regulation that responds to an emergency situation, provided that, any
such regulation shall be reported to the Director as soon as is practicable, the
agency shall publish in the Federal Register a statement of the reasons why it
is impracticable for the agency to follow the procedures of this Order with
respect to such a rule, and the agency shall prepare and transmit as soon as is
practicable a Regulatory Impact Analysis of any such major rule; and
(2) Any regulation for which consideration or reconsideration under the terms
of this Order would conflict with deadlines imposed by statute or by judicial
order, provided that, any such regulation shall be reported to the Director
together.with a brief explanation of the conflict, the agency shall publish in
the Federal Register a statement of the reasons why it is impracticable for the
agency to follow the procedures of this Order with respect to such a rule, and
the agency, in consultation with the Director, shall adhere to the requirements
of this Order to the extent permitted by statutory or judicial deadlines.
(b) The Director, subject to the direction of the Task Force, may, in accordance
with the purposes of this Order, exempt any class or category of regulations
from any or all requirements of this Order.
Sec. 9. Judicial Review. This Order is intended only to improve the internal
management of the Federal government, 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. The determi-
nations made by agencies under Section 4 of this Order, and any Regulatory
Impact Analyses for any rule, shall be made part of the whole record of
agency action in connection with the rule.
Sec. 10. Revocations. Executive Orders No. 12044, as amended, and No. 12174
are revoked.
THE WHITE HOUSE,
February 17, 1981.
jFR Duc. H1-5790
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Attachment C
Tuesday
January 8, 1985
Part III
The President
Executive Order 12498-Regulatory
Planning Process
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Federal Register
Vol. 50. No. 5
Tuesday, January 8. 1985
Presidential Documents
Title 3- Executive Order 12498 of January 4, 1985
The President Regulatory Planning Process
By the authority vested in me as President by the Constitution and laws of the
United States of America, and in order to create a coordinated process for
developing on an annual basis the Administration's Regulatory Program,
establish Administration regulatory priorities, increase the accountability of
agency heads for the regulatory actions of their agencies, provide for Presiden-
tial oversight of the regulatory process, reduce the burdens of existing and
future regulations, minimize duplication and conflict of regulations, and en-
hance public and Congressional understanding of the Administration's regula-
tory objectives, it is hereby ordered as follows:
Section L General Requirements. (a) There is hereby established a regulatory
planning process by which the Administration will develop and publish a
Regulatory Program for each year. To implement this process, each Executive
agency subject to Executive Order No. 12291 shall submit to the Director of the
Office of Management and Budget (OMB) each year. starting in 1985, a
statement of its regulatory policies, goals, and objectives for the coming year
and information concerning all significant regulatory actions underway or
planned; however, the Director may exempt from this Order such agencies or
activities as the Director may deem appropriate in order to achieve the
effective implementation of this Order.
(b) The head of each Executive agency subject to this Order shall ensure that
all regulatory actions are consistent with the goals of the agency and of the
Administration, and will be appropriately implemented.
(c) This program is intended to complement the existing regulatory planning
and review procedures of agencies and the Executive branch, including the
procedures established by Executive Order No. 12291.
(d) To assure consistency with the goals of the Administration, the head of
each agency subject to this Order shall adhere to the regulatory principles
stated in Section 2 of Executive Order No. 12291, including those elaborated
by the regulatory policy guidelines set forth in the August 11, 1983, Report of
the Presidential Task Force on Regulatory Relief, "Reagan Administration
Regulatory Achievements."
Sec. 2. Agency Submission of Draft Regulatory Program. (a) The head of each
agency shall submit to the Director an overview of the agency's regulatory
policies, goals, - and objectives for the program year and such information
concerning all significant regulatory actions of the agency, planned or under-
way, including actions taken to consider whether to initiate rulemaking;
requests for public comment; and the development of documents that may
influence, anticipate, or could lead to the commencement of rulemaking
proceedings at a later date, as the Director deems necessary to develop the
Administration's Regulatory Program. This submission shall constitute the
agency's draft regulatory program. The draft regulatory program shall be
submitted to the Director each year, on a date to be specified by the Director,
and shall cover the period from April 1-through March 31 of the following year
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Federal Register / Vol. 50, No. 5 / Tuesday, January 8. 1985 / Presidential Documents 1037
(b) The overview portion of the agency's submission should discuss the
agency's broad regulatory purposes, explain how they are consistent with the
Administration's regulatory principles, and include a discussion of the signifi-
cant regulatory actions, as defined by the Director, that it will take. The
overview should specifically discuss the significant regulatory actions of the
agency to revise or rescind existing rules.
(c) Each agency head shall categorize and describe the regulatory actions
described in subsection (a) in such format as the Director shall specify and
provide such additional information as the Director may request; however, the
Director shall, by Bulletin or Circular, exempt from the requirements of this
Order any class or category of regulatory action that the Director determines
is not necessary to review in order to achieve the effective implementation of
the program.
Sec. 3. Review, Compilation, and Publication of the Administration's Regula-
tory Program. (a) In reviewing each agency's draft regulatory program, the
Director shall (i) consider the consistency of the draft regulatory program with
the Administration's policies and priorities and the draft regulatory programs
submitted by other agencies; and (ii) identify such further regulatory or
deregulatory actions as may, in his view, be necessary in order to achieve
such consistency. In the event of disagreement over the content of the
agency's draft regulatory program, the agency head or the Director may raise
issues for further review by the President or by such appropriate Cabinet
Council or other forum as the President may designate.
(b) Following the conclusion of the review process established by subsection
(a), each agency head shall submit to the Director, by a date to be specified by
the Director, the agency's final regulatory plan for compilation and publication
as the Administration's Regulatory Program for that year. The Director shall
circulate a draft of the Administration's Regulatory Program for agency com-
ment, review, and interagency consideration, if necessary, before publication.
(c) After development of the Administration's Regulatory Program for the year,
if the agency head proposes to take a regulatory action subject to the
provisions of Section 2 and not previously submitted for review under this
process, or if the agency head proposes to take a regulatory action that is
materially different from the action described in the agency's final Regulatory
Program, the agency head shall immediately advise the Director and submit
the action to the Director for review in such format as the Director may
specify. Except in the case of emergency situations, as defined by the Director,
or statutory or judicial deadlines, the agency head shall refrain from taking the
proposed regulatory action until the review of this submission by the Director
is completed. As to those regulatory actions not also subject to Executive
Order No. 12291, the Director shall be deemed to have concluded that the
proposal is consistent with the purposes of this Order, unless he notifies the
agency head to the contrary within 10 days of its submission. As to those
regulatory actions subject to Executive Order No. 12291, the Director's review
shall be governed by the provisions of Section 3(e) of that Order.
(d) Absent unusual circumstances, such as new statutory or judicial require-
ments or unanticipated emergency situations, the Director may, to the extent
permitted by law, return for reconsideration any rule submitted for review
under Executive Order No. 12291 that would be subject to Section 2 but was
not included in the agency's final Regulatory Program for that year. or any
other significant regulatory action that is materially different from those
described in the Administration's Regulatory Program for that year.
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1038 Federal Register / Vol. 50, No. 5 / Tuesday, January 8. 1985 / Presidential Documents
(FR Doc. 85-525
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Sec. 4. Office of Management and Budget. The, Director of the Office of
Management and Budget is authorized, to the extent permitted by law, to take
such actions as may be necessary to carry out the provisions of this Order.
Sec. 5. Judicial Review. This Order is intended only to improve the internal
management of the Federal government, 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.
THE WHITE HOUSE,
January 4. 1985.
Editorial note: The President's memorandum of Jan. 4. 1985, for the heads of executive depart-
ments and agencies on the development of the administration's regulatory program is printed in
the Wesykly Compilation of Presidential Documents (vol. 21. no. 1).
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Attachment D
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.G. 20503
30,1365
MEMORANDUM FOR OIRA STAFF
FROM: Robert P. Bedel A -
SUBJECT: OIRA Procedures #3
The purpose of this memorandum is to remind you of the policies of
the Office of Information and Regulatory Affairs under the
Paperwork Reduction Act of 1980, Executive Order No. 12291, and
Executive Order No. 12498, with respect to:
o records maintenance;
o public access to records; and
o meetings with the public.
These policies are intended to ensure that our responsibilities
are discharged as efficiently and openly as practicable, consistent
with both the law and the need for confidential communications.
between the President and his' executive officers. Because OIRA's
role in implementing the Paperwork Reduction Act is very different
from its role in implementing Executive Order No. 12291 and
Executive Order No. 12498, different procedures are necessary for
our actions under each of these three programs. The differences
derive primarily from the different authorities involved. The
rules for Executive Order No. 12291 reviews will be applied to the
Executive Order No. 12498 process to the extent they are relevant
in that context.
BACKGROUND
OIRA'S Role Under the Paperwork Reduction Act. In summary, the
Paperwork Reduction Act requires OMB to review and approve or
disapprove agency requests for information. from the public. In
this regard, the Paperwork Reduction Act essentially recodified the
clearance authority that was originally assigned to OMB (actually
the old Bureau of the Budget) by the Federal Reports Act of 1942.
OMB is responsible for determining whether agency information
collection requirements meet the standards of the Act. Reviews
under the Act determine whether the proposed information collection
request is necessary for the proper performance of agency
functions, including whether the information has "practical
utility," whether it is too burdensome on respondents, and whether
there is a need for the information. As a result, our actions may
have legal, judicially reviewable consequences and must be based
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upon a complete record. The Act and our implementing rule specify
the procedures that OIRA must follow. The bottom line is that we
are responsible for ensuring that the record is complete and
constitutes a justifiable basis for our decision, and that we
adhere to the required procedures in developing the record and
making our decision.
OIRA'S Role under E.O. 12291 and E.O. 12498. In contrast, our
review under Executive Orders No. 12291 and No. 12498 derives from
the President's constitutional authority over, and responsibility
for actions taken by, his executive officers in carrying out the
law. He has delegated his authority to review regulations to the
Director of OMB. Thus, we conduct our reviews on behalf of the
Director and the President.
In conducting an Executive Order review, OMB does not make final
regulatory decisions--those are assigned by law to the heads of the
respective agencies and must in all cases remain the regulatory
agency's responsibility. The decision is made by the regulatory
agency and the agency is accountable for both the adequacy of the
record of its rulemaking and for justifying the substantive
validity of the decision under the applicable statutes. We review
the draft regulations of departments and agencies and advise
whether the draft rules and their analysis meet the President's
regulatory principles, as set forth in Executive Orders No. 12291
(Section 2) and No. 12498 (Section 1). As the Executive Orders
note, our review is not intended to provide any third' party with
any procedural or substantive right concerning the regulations.
Since some regulations contain collections of information from the
public, they are subject to our review and approval under the
Paperwork Reduction Act as well as under Executive Order No. 12291.
THE DECISIONMAKING RECORD
The law generally requires that agencies must compile a record of
materials that justify their rulemaking actions and that will serve
as a basis for judicial review. The regulatory agency is also
required under the Administrative Procedure Act to provide a
concise general explanation for any regulations adopted by informal
rulemaking and to explain, for example, significant substantive
differences between an NPRM and a final rule, including new facts
or data that the agency has relied upon.
For most rulemakings the law requires only that public comments on
a proposed rule and certain underlying scientific and empirical
data be included with a text of the notice of proposed rulemaking
and a final rule in the rulemaking record. The agency may, and
usually does, include in a preamble to a rule other material in the
record that is significant and relevant to the rulemaking. But the
rule must be based upon and justified by the whole rulemaking
record. Factual material that is not in the rulemaking record may
not be used as a basis for supporting a rule.
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For paperwork reviews, OIRA is the decisionmaking agency; we open
and maintain that record. Our decision to approve or disapprove is
based upon this record and must be justified by it. The record we
compile is the material that may be reviewed as the law provides by
the courts.
For reviews of regulations under Executive Orders No. 12291 and No.
12498, the agency is the decisionmaker; for judicial review, its
rulemaking file, not factual material available to us, is the
relevant material. In accordance with the Director's Memorandum of
June 11, 1981, (attached) we make available materials we receive
from the public to the regulatory agency so it may consider such
material and include it in its records if it chooses to do so.
When we conduct reviews and give advice under the Executive orders,
we and the agencies treat our discussions in the same way we handle
such consultation on other subjects -- they are not generally
disclosed. We will, however, make available upon request to the
public all written information that we receive from any member of
the public that we consider in our review, our final recommendation
letter (if any) to the agency under E.O. 12291, and, of course, any
material we submit for inclusion in an agency rulemaking record.
The following additional policies should be used as guidance in
implementing our responsibilities under-the Paperwork Reduction Act
.of 1980 and Executive Orders No. 12291 and No. 12498.
RECORDS MAINTENANCE
Each OIRA supervisor is responsible for ensuring that the
relevant documents are placed in the proper files on matters
under their supervision.
Any supervisor (including the Administrator and Deputy
Administrator) who receives written comments directly from a
member of the public will promptly send a copy of the comments to
the appropriate Desk officer.
Any comments that would otherwise be included in the public
record but for which the commenter proposes to limit public
access should not be accepted without the approval of the Deputy
Administrator. Jim MacRae is responsible for periodic review and
disposition of all files for the purpose of retention, storage,
or destruction, in accordance with the policies set forth below.
Except in unusual circumstances, all documents that are not
required by law to be retained should be disposed of when the
documents that are required to be retained are transferred to the
Federal Records Center.
o Paperwork Reduction Act of 1980
-- Because the written materials in our dockets are the
documentary basis for our paperwork decisions and also
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constitute a basis for the public to review and comment to'us
on the proposed agency action, paperwork clearance dockets
must be kept accurate, timely, and complete. To that end,
Desk Officers should place in the docket, promptly after its
receipt at OMB, any material that should be in the record.
-- The record should include the following material:
- Agency proposal and any revisions;
- OMB worksheet;
- All written comments from the public and other government
agencies;
- Evidence of final OMB action.
-- After final action (approval or disapproval), the record
should be retained in.the reading room for at least 6 months.
At least twice a year the Reports Management staff will review
the files and send to the Federal Records Center all records
for which final action has been completed for at least six
months. The records will be classified as "temporary" for the
Federal Records Center.
o Executive Order No. 12291
-- Because the head of the regulatory agency, not OMB, is the
decisionmaker on all rulemaking issues that come to us under
E.O. 12291, we will routinely make available to the
appropriate regulatory agency copies of all written materials
that we receive from members of the public during the
rulemaking proceeding and that are relevant to a particular
informal rulemaking.
-- The Desk Officer should also send to the public reading file
within three days after receipt a copy of any such comments
received from members of the public.
-- The Desk Officer should send a copy of the final OMB written
recommendation to the agency (if any) to the public reading
file within three days after transmittal to the agency.
-- The following material will not be made public, but, in
addition to the final written OMB recommendations/views to the
agency (if any), will be retained as part of the regulatory
files:
- draft and, proposed agency materials;
- OMB worksheets; and
- internal OMB and interagency documents as described by 5
U.S.C. 552(b) (5).
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-- After completion of the OIRA review, the regulatory files
should be retained for at least six months. At least twice
a year, the Reports Management staff, assisted by the other
Branches, will review the files and segregate all files for
which the reviews have been completed for at least six months.
All files of rules that were "consistent, with no change" will
be sent to the Federal Records Center. All other files will
be retained within the NEOB for one year, then sent to the
Federal Records Center. All files sent to the Federal Records
Center will be classified as "temporary."
PUBLIC ACCESS TO OUR DOCKETS AND RECORDS
FOIA requests should be handled in accordance with OMB FOIA
procedures. In addition, we have customarily made our paperwork
dockets and written information from the public available for
inspection.
Notwithstanding the increased Secret Service security precautions
in the New Executive Office Building, we must continue to make
access to our public records as simple as possible. All
clearances should be arranged through Jim MacRae.0 s office,
ext. 6880.
To avoid confusion and misunderstanding, visitors should be told
at the time clearance is sought that their clearance is limited
to the public reading room. If the individual who has been
cleared does not arrive at the reading room shortly after their
scheduled clearance time, Jim MacRae should be notified. Jim
will alert the Secret Service, which will take appropriate
action. We cannot permit individuals who are cleared into the
building for the reading room to roam through the.building.
o Paperwork Reduction Act of 1980
-- Current and recent records of paperwork clearance actions will
be maintained in such a way as to be readily accessible to
members of the public (with exceptions as provided in 5 CFR
1320.18). These files, which are the complete and official
record for clearance purposes, will be kept in NEOB 3201, the
reading room. They will be accessible to the public during
normal business hours--9:00 am - 5:30 pm.
o Executive Orders No. 12291 and No. 12498
-- We will maintain two type of documents in our public files
relating to regulatory reviews -- all comments received from
any member of the public, and all our final recommendation
letters to agencies under Executive Order No. 12291. These
files will also be accessible to the public in the reading
room during normal business hours.
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MEETINGS WITH MEMBERS OF THE PUBLIC (including telephone contacts)
o Paperwork Reduction Act of 1980
-- Any desk officer or supervisor may meet with members of the
public to discuss and receive data and facts that are
relevant to a paperwork clearance decision.
-- Consistent with the policies of this memorandum and
available time, OIRA staff must be equally accessible to all
members of the public.
-- In making our paperwork decision, we will consider only
information that we receive in writing. The OIRA staff
should make this policy clear during any conversation with
members of the public, and should advise them to submit
their comments in writing to both OMB and the agency
concerned.
-- OIRA staff may provide the public with information regarding
the status of our paperwork decisionmaking process and the
material and factual basis of our review, but should refrain
from discussing their views of the issues or speculating on
the outcome of the review.
-- If an information collection requirement is contained in a
proposed rule, any discussion with members of the public
must be limited exclusively to'the information collection
request.
-- Other procedures concerning paperwork reviews are set forth
in 5 CFR 1320 and the Act itself.
o Executive Orders No. 12291 and No. 12498
-- Inquiries from persons outside of the executive branch about
regulatory matters under Executive Orders No. 12291 and No.
12498 shall be referred to the Deputy Administrator's office
or the appropriate agency.
-- Consistent with the policies of this memorandum and
available time the Administrator and Deputy Administrator
will be accessible to all members of the public.
-- No one within OIRA except the Administrator or Deputy
Administrator will meet or talk with members of the public
on Executive Orders No. 12291 and No. 12498 matters, unless
specifically authorized by the Administrator or Deputy
Administrator.
-- Members of the public should be advised to submit their
comments in writing to the appropriate agency if they wish
to submit them to OMB, as provided in the Director's letter
of June 11, 1981. They should also be advised that any
materials submitted to us will be made part of the public
file and made available to the appropriate agency.
Attachment
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EXECUTIVE OFFICE OF THE -RESIDENI
OrriCC Of MANAGEMENT AND PVDG.r
MAa91sN010M D C cowl
June 21, 1981
r-81-9
MZMDRJ&JNDUY' FOP HEADS OF EXECUTIVE DEFARTI+.ENTS AND AGENCIEC
A. FTOZKY.A
DI RECTOF'
Certain Cor ?unications Pursuant to
Executive Order 12291 , "Federal Reauletior,"
RegLletcry relief is one of the cornerstones of President
Reacan's Froar arT of economic recovery. As an important step
in achieving regulatory relief, on February 17, 19E1, the
President issued Executive order 12291, "Federal Regulation."
This me.-iarandur. explains how the Presidential Task Force on
Regulatory Relief and the Office of Management and Budget
(O!+r) will communicate with the public and the aoencies
regarding proposed regulations covered by E.O. 12291. It
also describes certain obligations of the public and agencies
in this retard.
A mayor purpose of the Execut '.ve Order is to ensure that, t .
the extent permitted by law, regulatory decisions are based
upon sound analysis of the potential consequences. 'tLi~-: ard
this end, a comprehensive factual basis is essential Lo ass.
agencies and other interested parties in assessing the
economic and other ramifications of proposed regulations.
Under the Executive Order, both the Task Force and ON? will
be reviewing factual materials related to rcgulatory proposals.
Both the public and the agencies should understand that the
primary forum for receiving factual communications regarding
proposed rules is the agency issuing the proposal, not the Task Force or 0!'.b. Factual materials that are sent to the
Task Force or OY.c regarding proposed regulations 'should
indicate that they have also been sent to the relevant
agency. Pursuant to this policy, the Task Force and OY.P
will regularly advise those members of the public with vhor.
they communicate that relevant factual materials submitted
to them should also be sent to the agency for inclusion in
the rulemaking record. Accordingly, agencies receiving such
materials from the public should take care to see that they
are placed in the record.
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On occasion, the Task force staff and OMb will receive or
develop factual material which they believe should be
eonsideree by an agency during a particular infort?al
rule making. In accordance with advice provided by the
DepartJent of Justice. such material, when submitted to
an agency for its consideration, will be identified as
material appropriate for the whole record of the agency
rulemaking.
wo additional matters should be noted. First, our procedure!
will be consistent with the holding of and policies dis-
cussed in Sierra Club v. Co . No. 79-1565, slip op, a:
212-20 (D.C. Cir. April ?9, 19E1). Second, these procecurc?r
&772)- only to informal rulerr.a.kinc proceedings and are nct a r,
any sense intended to affect the more stringent a>: par tc
rules applicable to agency aa)udications and forral r.:lf?-
mr.a':incs. (Such proceedings are expressly intended by
Congress to be more in the nature of formal judicial pro-
ceedings and involve bars against various forr.s of ex parte
cor..-.unication. )
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r
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHING TON. D.G. 2O`.A3
M~,Y . 1905
Mr. A. James Barnes
Deputy Administrator
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Dear Jim:
In recent discussions, you have asked us to review our present
practices to ensure that factual information pertaining to EPA's
rulemaking activities that is made available to us by members of
the public is also made available to EPA in a timely manner.
We have reviewed our procedures and we believe that our general
policies and practices under Executive Order No. 12291 are sound.
However, in response to your request, we would propose certain
additional procedures, beyond our existing policies and
practices, which, if they are acceptable to you, we would be
willing to.undertake on an experimental basis.
Background
Our existing procedures implement guidance provided to us by
the Attorney General in an opinion of April 24, 1981, entitled
"Contacts between OMB and Executive Branch Agencies Pursuant to
Executive Order 12291." it complements an earlier analysis by
the Attorney General of the legal basis of the Executive Order
(Memorandum re: Proposed Executive Order entitled "Federal
Regulation," dated February 13, 1981). Both opinions of the
Attorney General are enclosed (Tabs A and B).
The earliest of these two opinions of the Attorney General
concluded that Executive-Order No. 12291, which established the
regulatory review process administered by the Office of
Information and Regulatory Affairs was a lawful exercise of the
President's Constitutional authority--
"to 'supervise and guide' Executive Officers in 'their
construction of the statutes under which they act in order to
secure that unitary and uniform execution of the laws which
Article II of the Constitution evidently contemplated in
vesting general executive power in the President alone'
Myers v. United States, 272 U.S. 52, 135 (1926)."
The second opinion of the Attorney General of April 24, 1981,
concluded, in part that:
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- The Office of Information and Regulatory Affairs, to which
the authority of the Director of OMB under Executive Order
No. 12291 has been delegated, "may freely contact agencies
regarding the substance of proposed regulations, and may do
so by way of telephone calls, meetings, or other forms of
communication unavailable to members of the public."
- "[D)isclosure obligations, any, lie with the rulemaking
agency and not with
- "[OIRA) is therefore under no legal disability with respect
to contact with rulemaking agencies. At most, [OIRA) could
adopt procedures as a matter of policy to assist the agencies
in complying with our recommendation or with rules fashioned
by the agencies themselves...." (p. 4).
This opinion, written before the seminal decision of the United
States Court of Appeals for the District of Columbia Circuit in
Sierra Club v. Costle, 657 F.2d 298 (1981), concluded that the
Judicial ecisions issued until that time were "confused" as to
whether an agency must include in its rulemaking record for
judicial review factual information received by the agency from
officials of the Executive Office of the President (EOP). The
Attorney General therefore recommended that agencies include such
factual information in their records in order to avoid the
possibility of judicial reversal. The Attorney General did not,
however, require or recommend inclusion of communications under
the Executive Order that form part of the agency's deliberative
process, i.e., legal and policy arguments, analyses of the facts,
and factual data that cannot reasonably be segregrated from
deliberative material.
To implement the recommendations of the Attorney General, OMB
Director David A. Stockman issued a Memorandum for the Heads of
Executive Departments and Agencies on June 11, 1981, entitled
"Certain Communications Pursuant to Executive Order No. 12291,
'Federal Regulation.'" (Tab C). That Memorandum emphasized "that
the primary forum for receiving factual communications regarding
proposed rules is the agency issuing the proposal, not the Task
Force or OMB."
This emphasis on the agency as the forum for receiving factual
communications merely reflects, of course, the fact that the
Executive Order does not divest an agency head of authority
provided by law or the legal requirement that agency rules must
be based upon the rulemaking record.
Since these procedures were implemented, the court's decision in
Sierra Club has clearly established the propriety of contacts
between EOP officials and agencies concerning rule making--
indeed, it has demonstrated their importance for proper policy
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3
guidance of this critical aspect of government activity--and
demonstrated that the procedures recommended by the Attorney
General and implemented by the Director's Memorandum go well
beyond what is required by law.
Written Materials from Persons Outside the Executive Branch
The Director's Memorandum provided that:
- Factual materials that are sent to the Presidential Task
Force on Regulatory Relief or OIRA regarding proposed
regulations should indicate that they have also been sent
to the relevant agency. Pursuant to this policy, the
Memorandum noted that the Task Force and OIRA would
regularly advise those members of the public with whom they
communicated that relevant factual materials submitted to
them should also be sent to the agency for inclusion in the
rulemaking record.
- Accordingly, agencies receiving such materials from the
public should take care to see that they are placed in the
record.
- On occasion, the Task Force staff and OIRA would receive or
develop factual material that they believed should be
considered by an agency during aparticular informal
rule making. The Memorandum provided that, in accordance
with advice provided by the Department of Justice, such
material, when submitted to an agency for its consideration,
would be identified as material appropriate for inclusion in
the record of the agency rulemaking.
To further implement the recommendations of the Attorney General,
OIRA established additional procedures, as a matter of policy,
beyond the requirements of law and the recommendations of the
Attorney General. Thus, we have uniformly and consistently made
available to Members of Congress, the agencies, and the public
copies of documents concerning an agency rulemaking that we have
received from persons who are not officials or employees of the
executive branch. We also strive to maintain copies of all such
documents in our materials that are available for public review.
In addition to such materials being lodged in our public files
and copies being made available upon request, you have asked
whether copies of such documents that pertain to EPA rules could
be routinely sent to EPA to help ensure that such materials are
included, if appropriate, in EPA rulemaking dockets. In order
to accommodate you, we will send to the General Counsel of EPA
copies of all such documents that we receive from persons outside
the executive branch. We will seek to provide these copies
within five working days of their receipt in OIRA.
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Non-written Communications with Persons Outside the Executive
Branch
As you know, our practice with regard to non-written
communications with persons outside the Federal Government, e.g.,
telephone calls and meetings, is to constrain communications that
pertain to proposed agency rules. Only the Administrator and I
(or OIRA employees specifically authorized by us in unusual
circumstances) are authorized to communicate with persons outside
the Federal Government on the substance (as opposed to the
status) of rules that are subject to review under Executive Order
No. 12291. These restrictions also apply to our review of
rulemaking activities pursuant to Executive Order No. 12498.
These restrictions do not apply to the other functions and
activities of OIRA, such as our review of information collection
requests under the Paperwork Reduction Act of 1980, even if an
information collection request is contained in a proposed rule.
In this latter circumstance, different procedures apply. See 5
CFR Part 1320 (Tab D) and OIRA Procedures Memorandum #3 (Tab E).
The limitations noted above do, however, apply to the parts of a
rule that do not contain an information collection request.
Obviously, senior officials in OIRA must be able to communicate
freely with members of the public and persons withii the Federal
Government, just as the senior officials in EPA do. We have,
however, limited such communications essentially to the
Administrator and Deputy Administrator. Furthermore, even Doug
and I usually do not communicate with persons outside the Federal
Government on proposed agency rules while they are under review
pursuant to Executive Order No. 12291.
Notwithstanding these procedures applicable to all rules subject
to the order, you have asked whether specific additional
procedures could be fashioned to apprise EPA of factual
information that becomes available to us as a result of
non-written communications with persons outside the Federal
Government and that pertain to proposed EPA rules. Before
describing what we believe is appropriate, it is useful first to
deal with an approach we have rejected and the reasons why.
1As the court stated in Sierra Club v. Costle, "Under our system
of government, the very legitimacy of general policymaking
performed by unelected administrators depends in no small part
upon the openness, accessibility, and amenability of these
officials to the needs and ideas of the public from whom their
ultimate authority derives, and upon whom their commands must
fall....Furthermore, the importance to effective regulation of
continuing contact with a regulated industry, other affected
groups, and the public cannot be underestimated. Informal
contacts may enable the agency to win needed support for its
program, reduce future enforcement requirements by helping those
regulated to anticipate and shape their plans for the future, and
spur the provision of information which the agency needs." 657
F.2d 298,400-1 (1981)
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"Logging"
Although you have not suggested it, we believe that a general
"logging" program or some variant thereof, particularly between
and within executive agencies and entities, would not be an
acceptable solution and would, as a general matter, be bad
policy. The Attorney General's opinion of April 24, 1981,
confirms this at pages 7-9 (Tab A). This view is also reflected
in Sierra Club v. Costle, 657 F.2d 298, 404-408 (1981); prior
congressional consideration of the issue (see pp 3-4, Tab A) ;
and, EPA's own stated position on the matter (Tab F).
In a nutshell, here is why we think a general "logging" system is
a bad idea.
o It is unnecessary. There would be no adverse legal
consequence even if we were to have information that is not
in the agency record. An agency rule must be based on
material in the record. Since EPA cannot rely on
information it does not have to support a rule, see 657 F.2d
401, factual information that might be available to us from
persons outside the Federal Government, that is not also
made available to EPA, is not pertinent. Furthermore, an
agency has no use for who-talked-to-whom entries.
o imposition of a logging requirement would improperly
interfere with the communication of policy views within the
executive branch and the deliberative process itself. The
court in Sierra Club rejected this approach. This was also
a basis for Congress' rejection of the proposal to apply "ex
parte" requirements to informal rulemaking. See pages 3 and
4 of Tab A, particularly footnotes 5-8.
o It is contr2ary to the "legislative model" of informal
rulemaking adopted by the Congress.
o It would divert attention from whether the agency's decision
is a good one--the substantive issue--to how the agency made
the decision.
2Where agency action resembles judicial action, where it involves
formal rulemaking, adjudication, or quasi-adjudication among
"conflicting private claims to a valuable privilege," the
insulation of the decisionmaker from ex parte contacts is
justified by basic notions of due process. But where agency
action involves informal rulemaking of a policymaking sort, the
concept of ex parte contacts is of more questionable utility.
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o It would establish a paperwork blizzard if all participants
in all discussions were required to "log" all communications
on the thousands of rules considered every year. This would
be nothing short of a bureaucratic nightmare to administer.
o A "logging requirement" would be impossible to "define."
When would it begin? Who would it cover? When would it
end? What-would it consist of? There are neither practical
nor principled answers to these questions.
o Such a procedure would logically require the agency to log
all of its internal deliberative discussions also--a
practical impossibility.
Additional Procedures
Nonetheless, in order to increase the amount of factual
information that is available to EPA for its rulemaking
decisions, and to respond to your request, we propose the
following procedure which, if acceptable to you, we would try
for a period of time and then reassess with you.
Whenever the Administrator or I have a meeting or a telephone
call with a person outside of the executive branch concerning a
proposed EPA rule subject to Executive Order No. 12291, and that
meeting or telephone call provides factual information that we
are not confident has also been provided to EPA, either the
Administrator or I will call the General Counsel of EPA and
advise him of the communication and of the relevant factual
information. EPA can then do whatever it deems appropriate with
regard to the information reported to the General Counsel.
Furthermore, with respect to scheduled meetings, if any, we will
try for a period of time and for a few rulemakings to provide an
opportunity for senior officials of EPA to attend and
participate, if they choose to do so. After some experience, we
will reassess this procedure, as well.
Please let me know if you believe that we should initiate these
procedures.
Robert P. Bedell
Deputy Administrator
Office of Information and
Regulatory Affairs
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