4. White House Orders, Bulletins, and Memoranda on Regulation

• Pages: 217-396

217

WHITE HOUSE ORDERS, BULLETINS, AND MEMORANDA ON REGULATION

4

White House Orders,

Bulletins, and Memoranda

on Regulation

217

Citations:

This section contains the text of the most significant presidential Execu-

tive Orders, Bulletins, and Memoranda, effective as of May 1, 2007, which

pertain to the rulemaking process or federal regulation. Other executive or-

ders and memoranda may be found in other sections of this book, e.g., those

relating to the Federal Advisory Committee Act.

It contains the texts of the following Bush II and Clinton Administration

Orders (and Orders from previous administrations) in chronological order—

that have remained in effect.

More information on many of these matters can be found on the website

of OMB’s Office of Information and Regulatory Affairs (OIRA), at:

http://www.whitehouse.gov/omb/inforeg/regpol.html.

I. Bush II and Clinton Administration Executive Orders

A. Executive Order 12,866: Regulatory Planning and Review (1993)

(as amended by Executive Orders 13,258

(2002) and 13,422 (2007)).

B. Executive Order 12,889: Implementation of the North American

Free Trade Agreement (1993).

C. Executive Order 12,898: Federal Actions to Address Environmental

Justice in Minority Populations and Low-

Income Populations (1994).

D. Executive Order 12,988: Civil Justice Reform (1996).

E. Executive Order 13,045: Protection of Children From Environ-

mental Health Risks and Safety Risks

(1997).

F. Executive Order 13,132: Federalism (1999).

G. Executive Order 13,175: Consultation and Coordination with

Indian Tribal Governments (2000).

218 WHITE HOUSE ORDERS, BULLETINS, AND MEMORANDA ON REGULATION

4

H. Executive Order 13,211: Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use (2001).

I. Executive Order 13,272: Proper Consideration of Small Entities in

Agency Rulemaking (2002).

II. Pre-1992 Executive Orders Still in Effect

A. Executive Order 12,372: Intergovernmental Review of Federal

Programs.

B. Executive Order 12,630: Governmental Actions and Interference

with Constitutionally Protected Property

Rights (1988).

III. Other White House Bulletins and Memoranda

A. Presidential Memorandum: “Regulatory Reform—Waiver of Pen-

alties and Reduction of Reports” (1995).

B. OMB Director’s Memorandum: “Federal Participation in the Develop-

ment and Use of Voluntary Standards”

(1998).

C. Presidential Memorandum: “Designation of Interagency Commit-

tees to Facilitate and Encourage Agency

Use of Alternate Means of Dispute Reso-

lution and Negotiated Rulemaking”

(1998).

D. Presidential Memorandum: “Plain Language in Government Writ-

ing” (1998).

E. OIRA Guidance on Presidential

Review of Agency Rulemaking

(2001).

F. OIRA Memorandum: “OMB’s Circular No. A-4, New Guide-

lines for the Conduct of Regulatory

Analysis” (2004).

G. OMB’s Peer Review Bulletin

(2004).

H. Final Bulletin for Agency Good Guidance Practices (and associated OMB/

OIRA Memorandum on “Implementation of Executive Order 13,422

(amending Executive Order 12,866) and the OMB Bulletin on Good

Guidance Practices”) (2007).

I. Updated Principles for Risk Analysis (2007).

219

WHITE HOUSE ORDERS, BULLETINS, AND MEMORANDA ON REGULATION

4

Lead Agency:

The Office of Information and Regulatory Affairs (OIRA) in the Office

of Management and Budget (OMB), Eisenhower Executive Office Building,

1650 Pennsylvania Avenue NW, Washington, DC 20502, (202) 395-4852.

Overview:

History of Presidential Oversight of Rulemaking and Regulation

Presidential oversight of regulation is not a recent innovation. It has been

in effect, in one form or another, since 1971, and it accompanied a major

expansion in the scope and complexity of federal regulation that occurred in

the 1960s and 1970s when a number of important social and environmental

regulatory statutes were enacted.

In June 1971, President Nixon established a “Quality of Life Review”

program, under which all “significant” draft proposed and final rules were

submitted to the Office of Management and Budget (OMB), which circulated

them to other agencies for comment. Agencies were required to submit a

summary of their proposals, a description of the alternatives that had been

considered, and a cost comparison of alternatives. In practice, this program

applied to rules pertaining to environmental quality, consumer protection and

occupational health and safety.

In 1974, President Ford issued an executive order requiring executive

branch agencies to prepare an “inflation impact statement” for each “major”

federal action.1 The order empowered the Director of OMB to administer the

program, with authority to delegate functions to other agencies, including the

Council on Wage and Price Stability (COWPS). Under the Inflation Impact

Statement program, agencies were required to prepare an inflation impact

statement (IIS) for “major” rules2 prior to publication of the notice of pro-

1Executive. Order 11,821, 3 C.F.R. 203 (1971-1975). When the Executive

Order was later extended, the “inflation impact statement” (IIS) was replaced by an

“economic impact statement” to better reflect the required analysis, which could

be characterized as a loose cost-benefit analysis. See OMB Circular No. A-107,

§4(d) (Jan. 28, 1975), cited in Note, The Inflation Impact Statement Program: An

Assessment of the First Two Years, 26 AM. U. L. REV. 1138, 1141 n.28 (1977).

2Originally, agencies were left to develop their own criteria for determin-

ing what was a “major” proposal, subject to OMB approval; eventually COWPS

adopted a list of suggested criteria that essentially defined “major” proposal as

entailing a cost of $100 million or more in one year, or $150 million or more in

two years. See Note, Regulation Analyses and Judicial Review of Informal

Rulemaking, 91 YALE L.J. 739, 746 n.51 (1982).