NOTE: ACUS has migrated the Tables of Executive Order Requirements to the Federal Administrative Procedure Sourcebook. Click here for the most up-to-date table.
The table below (maintained through 2017) identifies all extant executive orders that apply to most agencies’ notice-and-comment rulemaking. Executive Orders 12866 (Regulatory Planning and Review), 13132 (Federalism), and 13175 (Consultation and Coordination with Indian Tribal Governments) are briefly described in the main table, but also have their own tables to which the main table links. The tables do not capture requirements imposed on those agencies that review other agencies’ rulemaking activities, such as the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) or the Office of the Chief Counsel for Advocacy within the Small Business Administration. It also does not capture executive orders directed to a specific agency. When reviewing these requirements, agencies should especially note that they apply “unless prohibited by law.” Many executive orders include this caveat because presidential administrations have recognized that there may be program-specific statutes or court orders that supersede the executive orders.
|
Executive Order (EO) |
Date and Administration of Issue |
Action Items |
Does the EO Contain a Statement Regarding Applicability to Independent Agencies? |
|---|---|---|---|
|
EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights |
1988 - Reagan |
General Principles. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” Safety. These principles include the point that “the mere assertion of a . . . safety purpose is insufficient to avoid a taking.” They should be undertaken only for “real and substantial threats,” be designed to significantly advance safety, “and be no greater than is necessary.” Criteria. To the extent permitted by law, agencies are required to comply with a set of criteria before undertaking covered actions that include an assessment identifying the risk, establishing that safety is substantially advanced and that restrictions are not disproportionate to the overall risk, and estimating the cost to the government if the action is found to be a taking. In the event of an emergency, the analysis can be done later. Policies That Have Takings Implications. These include proposed and final rules that if implemented “could effect a taking” (e.g., licenses, permits, or other conditions or limitations on private property use). Ensuring Compliance. OMB and the Department of Justice are responsible for ensuring compliance with the EO. |
No |
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1993 - Clinton |
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EO 12889 - Implementation of the North American Free Trade Agreement |
1993 - Clinton |
Notice. Agencies subject to the APA must provide at least a 75-day comment period for “any proposed Federal technical regulation or any Federal sanitary or phytosanitary measure of general application.” Exceptions 1. NAFTA Implementation. Regulations ensuring that the NAFTA Implementation Act is appropriately implemented on the date NAFTA enters into force (pursuant to 19 U.S.C. §3314(a)). 2. Perishable Goods. Technical regulations relating to perishable goods. 3. Urgent Safety or Protection Rules. Technical regulations addressing an “urgent problem” relating to safety or to protection of human, animal, or plant life or health; the environment; or consumers. 4. Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection. Definitions 1. Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7). 2. Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7). |
No |
|
1994 - Clinton |
Strategies. Each agency is required to develop a strategy that “identifies and addresses disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” and identify, among other things, rules that should be revised to meet the objectives of the Order. Conduct. Each agency must ensure that its programs, policies, and activities that “substantially affect human health or the environment” do not exclude persons (including populations) from participating in or getting the benefits of, or subject them to discrimination under, such programs, policies, and activities. Documents and Hearings. An agency’s public documents, notices, and hearings relating to human health and the environment must be “concise, understandable, and readily accessible.” |
Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order." |
|
|
1996 - Clinton |
Within budgetary constraints and executive branch coordination requirements, agencies must review existing and new regulations to ensure they comply with specific requirements (e.g., “eliminate drafting errors and ambiguity” and “provide a clear legal standard for affected conduct rather than a general standard”) to improve regulatory drafting in order to reduce needless litigation. In conducting the reviews, agencies must “make every reasonable effort” to ensure that the rule meets specific objectives (e.g., specifies in clear language the preemptive or retroactive effect, if any). Agencies must determine that the rule meets the applicable standards or that it is unreasonable to meet one or more of those standards. |
Yes. See § 6 for relevant text: "The term 'agency' shall be defined as that term is defined in section 105 of title 5, United States Code." |
|
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EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks |
1997 - Clinton |
Policy. With respect to its rules, “to the extent permitted by law and appropriate, and consistent with the agency’s mission,” each agency must “address disproportionate risks to children that result from environmental health risks or safety risks.” Analysis. For any substantive rulemaking action that “is likely to result in” an economically significant rule that concerns “an environmental health risk or safety risk that an agency has reason to believe may disproportionately affect children,” the agency must provide OMB/OIRA: 1. Evaluation: “an evaluation of the environmental health or safety effects [attributable to products or substances that the child is likely to come in contact with or ingest] of the planned regulation on children.” 2. Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.” |
Yes. See § 1–102 for relevant text: "Each independent regulatory agency is encouraged to participate in the implementatoin of this order and comply with its provisions." |
|
1999 - Clinton |
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EO 13175 - Consultation and Coordination with Indian Tribal Governments |
2000 - Clinton |
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|
2001 - Bush |
Statement of Energy Effects. Agencies are required to prepare and submit to OIRA a Statement of Energy Effects for significant energy actions, to the extent permitted by law. Significant Energy Action. A “significant energy action” is one that is “significant” under EO 12866 and is likely to have a significant adverse energy effect. Additionally, actions designated by the OIRA Administrator as “significant energy actions” are significant energy actions. Contents of Statement. Agencies must provide a detailed statement of “any adverse effects on energy supply, distribution, or use (including a shortfall in supply, price increases, and increased use of foreign supplies)” for the action and reasonable alternatives and their effects. Publication. Agencies must publish the Statement or a summary in the related NPRM and final rule.
|
Yes. See § 4(b)(2) for relevant text: "'Agency' means any authority of the United States . . . other than those considered to be independent regulatory agencies . . . ." |
|
|
EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking |
2002 - Bush |
Advocacy Review. Agencies must “notify” Advocacy of draft rules that may have a significant economic impact on a substantial number of small entities when the draft rule is submitted to OIRA under EO 12866 or, if submission to OIRA is not required, “at a reasonable time prior to publication of the rule.” Advocacy is authorized to submit comments on the draft rule. Consideration of Advocacy Comments. Agencies must give “every appropriate consideration” to any Advocacy comments on a draft rule. If consistent with legal requirements, agencies must include in final rule preambles their response to any written Advocacy comments on the proposed rule, unless the agency head certifies that the public interest is not served by such action. Agency Procedures. Agencies must issue written procedures ensuring that the potential impact of their draft rules on small businesses, small governmental jurisdictions, and small organizations are “properly considered.” |
Yes. See § 4 for relevant text: "Terms defined in section 601 of title 5 . . . including the term 'agency,' shall have the same meaning in this order." |
|
2011 - Obama |
General Principles. This EO supplements and reaffirms EO 12866, stressing that, to the extent permitted by law, each agency must ensure that the benefits of its rulemaking actions justify their costs, tailor their regulations to impose the least burden, consider cumulative burdens, maximize net benefits, use performance objectives, and assess available alternatives. Public Participation. Agencies must provide a “meaningful opportunity” for public comment (generally 60 days) through the internet, with “timely” and easy access to all “pertinent” documents. Prior to issuing NPRMs, agencies should seek “the views of those likely to be affected,” when “feasible and appropriate.” Integration and Innovation. Each agency must promote “coordination, simplification, and harmonization” across agencies to reduce redundant, inconsistent, or overlapping rules. Agencies must also seek to achieve goals “designed to promote innovation.” Flexible Approaches. Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.” Objectivity with regard to scientific information. Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking. Retrospective Analysis. Agencies must consider how best to promote retrospective analysis of rules. They must have a plan to “periodically review” their existing significant regulations to make them “more effective or less burdensome.” |
Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [EO] 12866." |
|
|
2011 - Obama |
Independent regulatory agencies should promote EO 13563's goal of protecting “public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation,” and should comply with the provisions of EO 13563. Independent regulatory agencies should conduct retrospective analyses of rules to determine if they are “outmoded, ineffective, insufficient, or excessively burdensome.” Each independent agency should publish their analyses online when possible, and should develop a plan within 120 days of the EO's issuance to periodically review its regulations to determine if any should be “modified, streamlined, expanded, or repealed.” |
Yes. The EO is entirely geared toward independent agencies. |
|
|
2012 - Obama |
Every agency must include in its Regulatory Plan under EO 12866 (if required to submit one) a summary of international regulatory cooperation activities. All agencies must also ensure that regulations with international impacts are designated as such in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda), on regulations.gov, and on reginfo.gov. Additionally, agencies must consider reforming significant regulations that create “unnecessary differences” between U.S. and international regulatory systems. Agencies are also required to consider any regulatory approaches abroad that the U.S. has agreed to consider under a regulatory cooperation council work plan. |
Yes. See § 4(a): "'Agency' means any authority of the United States that is an 'agency' . . . other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5)"; and § 5: "Independent reegulatory agencies are encouraged to comply with the provisions of this order" for relevant text. |
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2012 - Obama |
Agencies are instructed to institutionalize regular reviews of their preivously issued significant regulations, and take additional steps to increase public participation in retrospective review of regulations. Agencies shall regularly (on the second Monday of January and July of each year) report on the status of their retrospective review efforts to OIRA. Reports should contain: progress on review, anticipated accomplishments, and proposed timelines. Agencies must make available to the public the final reports within three weeks from the date of submission of the draft report to OIRA. |
Yes. See § 5(b) for relevant text: "'[A]gency means any authority of the United States that is an 'agency' . . . other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5)." |
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|
2016 - Obama |
Agencies must identify specific actions they can take to address “undue burdens” on competition, via pro-competitive rulemaking and regulations. Semiannual reports to the National Economic Council on actions meant to promote greater competition are also required. |
Yes. See § 3(b) for relevant text: "Independent agencies are strongy encouraged to comply with the requirements of this order." |
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EO 13771 - Reducing Regulation and Controlling Regulatory Costs |
2017 - Trump |
Whenever an agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it must identify at least two additional regulations to repeal, unless doing so would violate federal law, or the regulation relates to military, national security, foreign affairs, agency organization, management, or personnel matters. The cost of each new regulation must be fully offset by the repeal specified above, and the agency must provide an approximation of the total costs or savings associated with each new regulation or repealed regulation. All regulations must be included in the Unified Agenda, and during the federal budget process, the OMB Director must identify to agencies a total amount of incremental costs of regulations permitted for that fiscal year. |
No |
|
EO 13772 - Core Principles for Regulating the United States Financial System |
2017 - Trump |
Federal regulation of the United States financial system is governed by seven core principles: 1) increasing informed consumer choice; 2) avoiding “taxpayer-funded bailouts”; 3) performing more rigorous regulatory impact analysis that addresses systemic risk and market failures, such as moral hazard and information asymmetry; 4) enabling American competitiveness in domestic and foreign markets; 5) promoting American interests in international financial regulatory negotiations; 6) making regulation efficient and appropriately tailored; and 7) restoring public accountability within federal financial regulatory agencies. The Secretary of the Treasury must consult with the heads of the member agencies of the Financial Stability Oversight Council, and must report to the President periodically on the extent to which the federal financial system's regulatory framework promotes the Core Principles, and what actions have been taken, and are currently underway, to promote the Core Principles. |
No |
|
2017 - Trump |
The head of every agency, within 60 days of this order's issuance, must designate an agency official as its Regulatory Reform Officer (RRO). The RRO is responsible for overseeing the agency's implementation of regulatory reform initiatives including EOs 12866, 13563, and 13771, and the RRO must report periodically to the agency head and agency leadership on the status of regulatory reform initiatives. Every agency must also create a Regulatory Reform Task Force responsible for consulting with stakeholders affected by regulations at all levels of government and the economy. Such consultation is intended to assist the agency in evaluating existing regulations and identifying regulations that can be repealed, replaced, or modified, based on whether they: inhibit job creation; are outdated or unnecessary; impose costs in excess of benefits; are inconsistent with regulatory reform initiatives; or derive from directives that have been rescinded or significantly modified. |
No |
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EO 13783 - Promoting Energy Independence and Economic Growth |
2017 - Trump |
All agencies are required to immediately review all existing regulations, orders, guidance documents, policies, and other agency actions that “potentially burden the development or use of domestically produced energy resources,” especially oil, natural gas, coal, and nuclear energy. Agency actions mandated by law, necessary for the public interest, or are otherwise consistent with this order's policy statement (promoting clean and safe development of American energy resources while preserving federalism between the states and the federal government on regulatory issues) are exempt. Any agency action identified in this review must begin “as soon as practicable” to be wound down in compliance with APA procedures and EO 13771. Agencies should no longer base their cost-benefit analyses on previously-issued Technical Support Documents and Technical Updates of the Social Cost of Carbon issued from February 2010 through August 2016. |
No |