https://sourcebook.acus.gov/api.php?action=feedcontributions&user=MGluth&feedformat=atomacus wiki - User contributions [en]2024-03-28T23:58:41ZUser contributionsMediaWiki 1.31.0https://sourcebook.acus.gov/index.php?title=Unfunded_Mandates_Reform_Act&diff=1696Unfunded Mandates Reform Act2023-08-15T22:14:13Z<p>MGluth: </p>
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<div>2 U.S.C. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim §§ 1501-1571] (2012); enacted by [https://www.govinfo.gov/content/pkg/PLAW-104publ4/pdf/PLAW-104publ4.pdf Pub. L. No. 104–4], 109 Stat. 48, Mar. 22, 1995.<br />
<br />
'''Lead Agencies:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Management and Budget, Office of Information and Regulatory Affairs]<br />
<br />
[https://www.cbo.gov/about/organization-and-staffing#bad Congressional Budget Office, Budget Analysis Division]<br />
<br />
==Overview==<br />
The Unfunded Mandates Reform Act (UMRA), which was enacted in 1995 with broad, bipartisan support, requires Congress and federal agencies (excepting independent agencies) to give special consideration to proposed legislation and regulations imposing mandates on state, local, and tribal entities. It also contains a provision requiring agencies to prepare a written statement, in the nature of a regulatory impact analysis, for any proposed rulemaking that is likely to result in an expenditure by the private sector in excess of $100 million. UMRA thus contains the only broad regulatory impact analysis requirement currently mandated by statute, and as such codifies many of the provisions in Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review]. UMRA’s impact is, however, somewhat lessened because its provisions for judicial review of agency compliance with UMRA are somewhat limited.<br />
<br />
UMRA’s purpose was to help reveal, and ultimately limit, the high (and often hidden) costs of federal mandates on state and local governments to undertake regulatory activity without sufficient federal compensation for this activity.<br />
<br />
Title I modifies the legislative process by requiring any Congressional authorizing committee that approves a bill containing a federal mandate (with some exceptions) to identify that mandate in its committee report. The Congressional Budget Office (CBO) must then estimate the overall impact of such mandates, and a point of order can be raised by any member against a bill that lacks such an estimate or if the bill contains an unfunded mandate exceeding $50 million burden on state and local governments or $100 million on the private sector; these thresholds are adjusted annually for inflation.<br />
<br />
Title II addresses federal agency regulations containing regulatory mandates of state, local, and tribal governments and on the private sector. The key requirement is for a written “statement to accompany significant regulatory actions.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532]. The statement is required in “any general notice of proposed rulemaking that is likely to result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532(a)]. <br />
<br />
The statement must include <br />
<br />
#Citation to the law under which the rule is being promulgated;<br />
#“A qualitative and quantitative assessment of the anticipated costs and benefits of the Federal mandate . . . as well as the effect of the Federal mandate on health, safety, and the natural environment” along with an analysis of the availability of federal funds to help governments pay for the mandate;<br />
#Estimates of future compliance costs and of disproportionate budgetary effects on regions or particular governments or segments of the private sector;<br />
#Estimates of the effect on aspects of the national economy; and<br />
#A summary of the agency’s consultations with elected representatives "of the affected State, local, and tribal governments" including the comments and concerns raised and the agency's evaluation of them.<br />
<br />
The agency must also develop a plan to specially notify state, local, and tribal governments of such requirements and develop a process to receive meaningful and timely input from elected officials. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1534(a)]. An exemption from the [[Federal Advisory Committee Act]] is carved out for such consultations. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1534(b)]. A summary of this statement must appear in the notice of proposed rulemaking. However, UMRA does allow agencies to prepare the statement “in conjunction with or as a part of any other statement or analysis.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532(c)]. <br />
<br />
Before issuing a final rule that was subject to the above requirements, the agency must “identify and consider a reasonable number of regulatory alternatives and from those alternatives, select the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.” (2 U.S.C. § 1535).<br />
<br />
Judicial review of agency compliance with UMRA is limited. UMRA provides that judicial review of the agency statements accompanying significant regulatory actions is subject to review only under 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section706&num=0&edition=prelim § 706(1)], which allows courts to “compel agency action unlawfully withheld or unreasonably delayed.” This means that courts may compel the production of such agency statements but cannot review the contents of them. In fact, UMRA makes clear that “the inadequacy or failure to prepare such statement (including the inadequacy or failure to prepare any estimate, analysis, statement or description) or written plan shall not be used as a basis for staying, enjoining, invalidating or otherwise affecting such agency rule” (2 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1571&num=0&edition=prelim § 1571(a)(3)]). <br />
<br />
UMRA requires OMB to submit annual reports to Congress on agency compliance with Title II, and OMB has submitted such reports since 1996. 2 U.S.C. § 1538. UMRA also requires the Advisory Commission on Intergovernmental Relations to submit an annual report to Congress and the President "describing any Federal court case to which a State, local, or tribal government was a party" in the previous year and required these entities to undertake additional responsibilities or activities to comply with Federal law. 2 U.S.C. § 1554.<br />
<br />
==Legislative History==<br />
In the 103rd Congress, eight bills were introduced that addressed the issue of unfunded mandates. This was directly in response to the pressure building over the previous 15 years from state and local governments. Over those years, Congress continued a pattern of cutting federal funding while enacting statutes that passed costs onto state and local governments without providing funding to cover those costs. To demonstrate their dissatisfaction, the state and local governments declared October 27, 1993, “National Unfunded Mandates Day.”<br />
<br />
Senator Dirk Kempthorne introduced the Community Regulatory Relief Act ([https://www.congress.gov/103/bills/s993/BILLS-103s993rs.pdf S. 993]), which had more than 50 co-sponsors. However, S. 993 was not considered for a vote, and Congress adjourned without further consideration of the bill.<br />
<br />
The Unfunded Mandates Reform Act of 1995 ([https://www.congress.gov/104/bills/s1/BILLS-104s1rs.pdf S. 1] and its companion bill, the Unfunded Mandate Reform Act of 1995 ([https://www.congress.gov/104/bills/hr5/BILLS-104hr5rh.pdf H.R. 5]) was introduced in the 104th Congress. It was rapidly reported out of committee in both houses. In February, the House passed H.R. 5, and amended and passed S. 1. After disagreement between the House and Senate over amendments, the bill went to a conference committee. [https://www.congress.gov/104/crpt/hrpt76/CRPT-104hrpt76.pdf H.R. Rep. No. 104-76] (1995). Both houses agreed to the conference report. The Senate vote was 91-9 and the House vote was 394-28.<br />
<br />
On March 22, 1995, The Unfunded Mandates Reform Act of 1995 was signed into law by President Clinton as [https://www.govinfo.gov/content/pkg/PLAW-104publ4/pdf/PLAW-104publ4.pdf Pub. L. No. 104-4].<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Impact of Federal Mandates on State and Local Governments'', Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Operations, 103d Cong. (1993).<br />
*''Federal Mandates on State and Local Governments'', Hearing Before the S. Governmental Affs. Comm., 103d Cong. (1993).<br />
*''Impact of Unfunded Mandates on State and Local Governments'', Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Reform and Oversight, 103d Cong. (1994).<br />
*''Unfunded Federal Mandates: Who Should Pick Up the Tab?'', Hearing Before the Subcomm. on Investigation and Oversight of the H. Science Comm., 103d Cong. (1994).<br />
*''Unfunded Federal Mandates: Burdens and Costs in North Dakota'', Hearing Before the S. Governmental Affs. Comm., 103d Cong. (1994).<br />
*''Federal Mandate Reform Legislation'', Hearing Before the S. Governmental Affs. Comm., 103d Cong. (1994).<br />
*''Legislative Initiatives on Unfunded Mandates'', Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Reform and Oversight, 103d Cong. (1994).<br />
*S. 993, Federal Mandate Accountability and Reform Act of 1994, [https://www.govinfo.gov/content/pkg/BILLS-103s993rs/pdf/BILLS-103s993rs.pdf S. Rep. No. 103-330] (1994).<br />
*Unfunded Mandate Reform Act of 1995, [https://www.congress.gov/104/crpt/srpt2/CRPT-104srpt2.pdf S. Rep. No. 104-2] (1995).<br />
*Unfunded Mandate Reform Act of 1995, [https://www.congress.gov/104/crpt/hrpt1/CRPT-104hrpt1-pt1.pdf H. Rep. No. 104-1], pts. 1 and 2 (1995).<br />
*[http://commdocs.house.gov/committees/Trans/hpw104-4.000/hpw104-4_0f.htm Ways to Reduce Unfunded Federal Mandates and Regulatory Burdens on the Aviation Industry Without Affecting the Safety of the Traveling Public], Hearing Before the Subcomm. on Aviation, H. Transp. and Infrastructure Comm., 104th Cong. (1995).<br />
*Unfunded Mandates Reform Act of 1995, [https://www.congress.gov/104/crpt/hrpt76/CRPT-104hrpt76.pdf H. Rep. No. 104-76] (1995).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-104hhrg41231/pdf/CHRG-104hhrg41231.pdf The Unfunded Mandates Reform Act of 1995: One Year Later], Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Reform and Oversight, 105th Cong. (1996).<br />
*''Hearings on S. 1'' Before the Senate Budget Committee and the Senate Comm. Governmental Affs., 104th Cong. (1999).<br />
*''Hearings on H.R. 5 before the House Rules'', 104th Cong. (1999).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109shrg21429/pdf/CHRG-109shrg21429.pdf Passing the Buck, A Review of the Unfunded Mandates Reform Act], Hearing Before the Subcomm. on Oversight of Gov’t Management, the Fed. Workforce, and the District of Columbia of the S. Comm. on Homeland Sec. and Governmental Affs., 109th Cong. (2005).<br />
*''The Tenth Anniversary of the Unfunded Mandates Reform Act'', Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67172/pdf/CHRG-112hhrg67172.pdf Unfunded Mandates and Regulatory Overreach], Hearing Before the Subcomm. on Tech., Info. Pol'y, Intergovernmental Rels. and Procurement Reform of the Comm. on Oversight and Gov’t Reform, 112th Cong. (2011).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67619/pdf/CHRG-112hhrg67619.pdf Unfunded Mandates and Regulatory Overreach], Hearing Before the Subcomm. on Tech., Info. Pol'y, Intergovernmental Rels. and Procurement Reform of the Comm. on Oversight and Gov't Reform, 112th Cong. (2011).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg70678/pdf/CHRG-112hhrg70678.pdf Unfunded Mandates, Regulatory Burdens and the Role of the Office of Information and Regulatory Affairs], Hearing Before the Subcomm. on Tech., Info. Policy, Intergovernmental Rels. and Procurement Reform of the Comm. on Oversight and Gov’t Reform, 112th Cong. (2011).<br />
*Unfunded Mandates Information and Transparency Act of 2011, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt483/pdf/CRPT-112hrpt483-pt1.pdf H. Rep. No. 112-483] (2012).<br />
*Unfunded Mandates Information and Transparency Act of 2013, [https://www.govinfo.gov/content/pkg/CRPT-113hrpt352/pdf/CRPT-113hrpt352-pt1.pdf H. Rep. No. 113-352] (2014).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114shrg99989/pdf/CHRG-114shrg99989.pdf The Unfunded Mandates Reform Act: Opportunities for Improvement to Support State and Local Governments], Hearing Before Subcomm. on Regulatory Affs. and Fed. Mgmt. of the S. Comm. on Homeland Sec. and Governmental Affs., 114th Cong. (2016).<br />
</div><br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*Executive Order 13175, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO13175tribgovt.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
<br />
===ACUS Recommendations===<br />
<br />
*2012-1, [https://www.acus.gov/recommendation/regulatory-analysis-requirements Regulatory Analysis Requirements].<br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on Unfunded Mandates====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Agency Compliance with Title II of Unfunded Mandates Reform Act of 1995, Report to Congress from the Director of OMB (Mar. 22, 1996). These are annual reports. The [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/umra1999final.pdf 4th Annual Report] was issued in October 1999.<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2002).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2003).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2005).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2007).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2008).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2009).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2011).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2013).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2014).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2015).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2019/12/2019-CATS-5885-REV_DOC-2017Cost_BenefitReport11_18_2019.docx.pdf 2017 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates and Reform Act] (2017).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2021/01/2018_2019_2020-OMB-Cost-Benefit-Report.pdf 2018, 2019, and 2020 Reports to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (2020).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memorandum for the Heads of Executive Departments and Agencies, and Independent Regulatory Agencies, M-94-1, ''Guidance for Implementing E.O. 12,875,'' ''Reduction of Unfunded Mandates'' (Jan. 11, 1994).<br />
*Memorandum for the Heads of Executive Departments and Agencies, M-95-09, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/1995-1998/m95-09.pdf Guidance for Implementing Title II of S.1] (Mar. 31, 1995).<br />
*Memorandum for the Heads of Departments and Agencies, M-95-20, [https://www.gsa.gov/policy-regulations/policy/federal-advisory-committee-management/legislation-and-regulations/implementing-section-204-as-related-to-faca Guidelines and Instructions for Implementing Section 204, State, Local, and Tribal Government Input, of Title II of P.L. 104-4] (Sept. 29, 1995).<br />
</div><br />
<br />
===Congressional Budget Office Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.cbo.gov/publication/51335#section4 CBO’s Activities Under the Unfunded Mandates Reform Act].<br />
*[https://www.cbo.gov/sites/default/files/103rd-congress-1993-1994/reports/doc45.pdf Preliminary Analysis of Unfunded Federal Mandates and the Cost of the Safe Drinking Water Act](1994).<br />
*[https://www.cbo.gov/sites/default/files/105th-congress-1997-1998/reports/umra1st.pdf The Experience of the Congressional Budget Office During the First Year of the Unfunded Mandates Reform Act] (1997).<br />
*[https://www.cbo.gov/sites/default/files/109th-congress-2005-2006/reports/03-31-umra_4.pdf A Review of CBO’s Activities Under the Unfunded Mandates Reform Act, 1996 to 2005] (2006).<br />
*[https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/04-03-umra.pdf A Review of CBO’s Activities in 2006 Under the Unfunded Mandates Reform Act] (2007).<br />
*[https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/03-31-umra0.pdf A Review of CBO’s Activities in 2007 Under the Unfunded Mandates Reform Act] (2008).<br />
*[https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/reports/03-31-umra_1.pdf A Review of CBO’s Activities in 2008 Under the Unfunded Mandates Reform Act] (2009).<br />
*[https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/reports/03-31-umra2.pdf A Review of CBO’s Activities in 2009 Under the Unfunded Mandates Reform Act] (2010).<br />
*[https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/03-31-umra.pdf A Review of CBO’s Activities in 2010 Under the Unfunded Mandates Reform Act] (2011).<br />
*[https://www.cbo.gov/sites/default/files/03-30-UMRA.pdf A Review of CBO’s Activities in 2011 Under the Unfunded Mandates Reform Act] (2012).<br />
*[https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/hr373LankfordLtr.pdf Input Regarding H.R. 373, the Unfunded Mandates Information and Transparency Act of 2011], Letter to the Hon. James Lankford (Mar. 30, 2012).<br />
*[https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/44032_UMRA.pdf A Review of CBO’s Activities in 2012 Under the Unfunded Mandates Reform Act] (2013).<br />
*[https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/45209-UMRA.pdf A Review of CBO’s Activities in 2013 Under the Unfunded Mandates Reform Act] (2014).<br />
*[https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/50051-UMRA2_0.pdf A Review of CBO’s Activities in 2014 Under the Unfunded Mandates Reform Act] (2015).<br />
*[https://www.cbo.gov/publication/51335 CBO’s Activities Under the Unfunded Mandates Reform Act] (2021).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Advisory Comm’n on Intergov’tal Relations, ''Federal Court Rulings Involving State, Local, and Tribal Governments Calendar Year 1994: A Report Prepared Under Section 304, Unfunded Mandates Reform Act of 1995'' (M-196) (1995).<br />
*Richard S. Beth, Cong. Research Serv., RL 98-48, ''Mandates Information Act: Implications for Congressional Action on Legislation Containing Private Sector Mandates'' (1998).<br />
*Gen. Accounting Office, GAO/GGD-98-30, [https://www.gao.gov/assets/230/225165.pdf Unfunded Mandates Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, A Report to the Senate Committee on Governmental Affairs] (1998).<br />
*Gen. Accounting Office, GAO-04-637, [https://www.gao.gov/new.items/d04637.pdf Unfunded Mandates: Analysis of Reform Act Coverage] (2004).<br />
*Gov’t Accountability Office, GAO-05-454, [http://www.gao.gov/new.items/d05454.pdf Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement] (2005).<br />
*Gov’t Accountability Office, GAO-11-385T, [https://www.gao.gov/assets/130/125488.pdf Federal Mandates: Few Rules Trigger Unfunded Mandates Reform Act] (2011).<br />
*Robert Jay Dilger & Natalie Keegan, Cong. Rsch. Serv., R40957, [https://crsreports.congress.gov/product/pdf/R/R40957 Unfunded Mandates Reform Act: History, Impact, and Issues] (2021).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Robert W. Adler, ''Unfunded Mandates and Fiscal Federalism: A Critique'', 50 Vand. L. Rev. 1137 (1997).<br />
*Cary Coglianese, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2005&context=aulr Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel H. Cole & Carol S. Comer, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1648&context=facpub Rhetoric, Reality, and the Law of Unfunded Federal Mandates], 8 Stan. L. & Pol’y Rev. 103 (1997).<br />
*David A. Dana, ''The Case for Unfunded Environmental Mandates'', 69 S. Cal. L. Rev. 1 (1995).<br />
*Denise D. Fort, Essay, [https://digitalrepository.unm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1815&context=nrj The Unfunded Mandates Reform Act of 1995: Where Will the New Federalism Take Environmental Policy?], 35 Nat. Resources J. 727 (1995).<br />
*Elizabeth Garrett, ''Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995'', 45 U. Kan. L. Rev. 1113 (1997).<br />
*Elizabeth Garrett, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1264&context=ndlr Framework Legislation and Federalism], 83 Notre Dame L. Rev. 1495 (2008).<br />
*Theresa Gullo, ''History and Evaluation of the Unfunded Mandates Reform Act'', 57 Nat’l Tax J. (2004).<br />
*Daniel S. Herzfeld, Comment, ''Accountability and the Nondelegation of Unfunded Mandates: A Public Choice Analysis of the Supreme Court’s Tenth Amendment Federalism Jurisprudence'', 7 Geo. Mason L. Rev. 419 (1999).<br />
*Makram B. Jaber, Comment, ''Unfunded Federal Mandates: An Issue of Federalism or a Brilliant Sound Bite'', 45 Emory L. J. 281 (1996).<br />
*Tracy A. Kaye, ''Show Me the Money: Congressional Limitations on State Tax Sovereignty'', 35 Harv. J. on Legis. 149 (1998).<br />
*Raymond W. Lawton & Bob Burns, ''Models of Cooperative Federalism for Telecommunications'', 6 Alb. L. J. Sci. & Tech. 71 (1996).<br />
*Susan E. Leckrone, Note, [http://ilj.law.indiana.edu/articles/71/71_4_Leckrone.pdf Turning Back the Clock: The Unfunded Mandates Reform Act of 1995 and Its Effective Repeal of Environmental Legislation], 71 Ind. L.J. 1029 (1996).<br />
*Eileen M. Luna, [https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1265&context=ailr The Impact of the Unfunded Mandates Reform Act of 1995 on Tribal Governments], 22 Am. Indian L. Rev. 445 (1998).<br />
*Russell A. Miller, [http://ilj.law.indiana.edu/articles/85/85_1_Miller.pdf Clinton, Ginsburg, and Centrist Federalism], 85 Ind. L.J. 225 (2010).<br />
*Connor Raso, ''Agency Avoidance of Rulemaking Procedures'', 67 Admin. L. Rev. 65 (2015).<br />
*Robert M. M. Shaffer, Comment, ''Unfunded State Mandates and Local Governments'', 64 U. Cin. L. Rev. 1057 (1996).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Daniel E. Troy, ''The Unfunded Mandates Reform Act of 1995'', 49 Admin. L. Rev. 139 (1997).<br />
*Edward A. Zelinsky, ''The Unsolved Problem of the Unfunded Mandate'', 23 Ohio N. U. L. Rev. 741 (1997).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Unfunded Mandates Reform Act, <br />
<br />
Title 2 U.S. Code<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim Chapter 25—Unfunded Mandates Reform]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1501&num=0&edition=prelim § 1501. Purposes]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1502&num=0&edition=prelim § 1502. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1503&num=0&edition=prelim § 1503. Exclusions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1531&num=0&edition=prelim § 1531. Regulatory process]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1532&num=0&edition=prelim § 1532. Statements to accompany significant regulatory actions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1533&num=0&edition=prelim § 1533. Small government agency plan]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1534&num=0&edition=prelim § 1534. State, local, and tribal government input]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1535&num=0&edition=prelim § 1535. Least burdensome option or explanation required]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1536&num=0&edition=prelim § 1536. Assistance to Congressional Budget Office]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1555&num=0&edition=prelim § 1555. “Federal mandate” defined]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1571&num=0&edition=prelim § 1571. Judicial review]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Unfunded_Mandates_Reform_Act&diff=1695Unfunded Mandates Reform Act2023-08-15T22:09:44Z<p>MGluth: </p>
<hr />
<div>2 U.S.C. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim §§ 1501-1571] (2012); enacted by [https://www.govinfo.gov/content/pkg/PLAW-104publ4/pdf/PLAW-104publ4.pdf Pub. L. No. 104–4], 109 Stat. 48, Mar. 22, 1995.<br />
<br />
'''Lead Agencies:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Management and Budget, Office of Information and Regulatory Affairs]<br />
<br />
[https://www.cbo.gov/about/organization-and-staffing#bad Congressional Budget Office, Budget Analysis Division]<br />
<br />
==Overview==<br />
The Unfunded Mandates Reform Act (UMRA), which was enacted in 1995 with broad, bipartisan support, requires Congress and federal agencies (excepting independent agencies) to give special consideration to proposed legislation and regulations imposing mandates on state, local, and tribal entities. It also contains a provision requiring agencies to prepare a written statement, in the nature of a regulatory impact analysis, for any proposed rulemaking that is likely to result in an expenditure by the private sector in excess of $100 million. UMRA thus contains the only broad regulatory impact analysis requirement currently mandated by statute, and as such codifies many of the provisions in Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review]. UMRA’s impact is, however, somewhat lessened because its provisions for judicial review of agency compliance with UMRA are somewhat limited.<br />
<br />
UMRA’s purpose was to help reveal, and ultimately limit, the high (and often hidden) costs of federal mandates on state and local governments to undertake regulatory activity without sufficient federal compensation for this activity.<br />
<br />
Title I modifies the legislative process by requiring any Congressional authorizing committee that approves a bill containing a federal mandate (with some exceptions) to identify that mandate in its committee report. The Congressional Budget Office (CBO) must then estimate the overall impact of such mandates, and a point of order can be raised by any member against a bill that lacks such an estimate or if the bill contains an unfunded mandate exceeding $50 million burden on state and local governments or $100 million on the private sector; these thresholds are adjusted annually for inflation.<br />
<br />
Title II addresses federal agency regulations containing regulatory mandates of state, local, and tribal governments and on the private sector. The key requirement is for a written “statement to accompany significant regulatory actions.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532]. The statement is required in “any general notice of proposed rulemaking that is likely to result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532(a)]. <br />
<br />
The statement must include <br />
<br />
#Citation to the law under which the rule is being promulgated;<br />
#“A qualitative and quantitative assessment of the anticipated costs and benefits of the Federal mandate . . . as well as the effect of the Federal mandate on health, safety, and the natural environment” along with an analysis of the availability of federal funds to help governments pay for the mandate;<br />
#Estimates of future compliance costs and of disproportionate budgetary effects on regions or particular governments or segments of the private sector;<br />
#Estimates of the effect on aspects of the national economy; and<br />
#A summary of the agency’s consultations with elected representatives "of the affected State, local, and tribal governments" including the comments and concerns raised and the agency's evaluation of them.<br />
<br />
The agency must also develop a plan to specially notify state, local, and tribal governments of such requirements and develop a process to receive meaningful and timely input from elected officials. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1534(a)]. An exemption from the [[Federal Advisory Committee Act]] is carved out for such consultations. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1534(b)]. A summary of this statement must appear in the notice of proposed rulemaking. However, UMRA does allow agencies to prepare the statement “in conjunction with or as a part of any other statement or analysis.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532(c)]. <br />
<br />
Before issuing a final rule that was subject to the above requirements, the agency must “identify and consider a reasonable number of regulatory alternatives and from those alternatives, select the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.” (2 U.S.C. § 1535).<br />
<br />
Judicial review of agency compliance with UMRA is limited. UMRA provides that judicial review of the agency statements accompanying significant regulatory actions is subject to review only under 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section706&num=0&edition=prelim § 706(1)], which allows courts to “compel agency action unlawfully withheld or unreasonably delayed.” This means that courts may compel the production of such agency statements but cannot review the contents of them. In fact, UMRA makes clear that “the inadequacy or failure to prepare such statement (including the inadequacy or failure to prepare any estimate, analysis, statement or description) or written plan shall not be used as a basis for staying, enjoining, invalidating or otherwise affecting such agency rule” (2 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1571&num=0&edition=prelim § 1571(a)(3)]). <br />
<br />
UMRA requires OMB to submit annual reports to Congress on agency compliance with Title II, and OMB has submitted such reports since 1996. 2 U.S.C. § 1538. UMRA also requires the Advisory Commission on Intergovernmental Relations to submit an annual report to Congress and the President "describing any Federal court case to which a State, local, or tribal government was a party" in the previous year and required these entities to undertake additional responsibilities or activities to comply with Federal law. 2 U.S.C. § 1554.<br />
<br />
==Legislative History==<br />
In the 103rd Congress, eight bills were introduced that addressed the issue of unfunded mandates. This was directly in response to the pressure building over the previous 15 years from state and local governments. Over those years, Congress continued a pattern of cutting federal funding while enacting statutes that passed costs onto state and local governments without providing funding to cover those costs. To demonstrate their dissatisfaction, the state and local governments declared October 27, 1993, “National Unfunded Mandates Day.”<br />
<br />
Senator Dirk Kempthorne introduced the Community Regulatory Relief Act ([https://www.congress.gov/103/bills/s993/BILLS-103s993rs.pdf S. 993]), which had more than 50 co-sponsors. However, S. 993 was not considered for a vote, and Congress adjourned without further consideration of the bill.<br />
<br />
The Unfunded Mandates Reform Act of 1995 ([https://www.congress.gov/104/bills/s1/BILLS-104s1rs.pdf S. 1] and its companion bill, the Unfunded Mandate Reform Act of 1995 ([https://www.congress.gov/104/bills/hr5/BILLS-104hr5rh.pdf H.R. 5]) was introduced in the 104th Congress. It was rapidly reported out of committee in both houses. In February, the House passed H.R. 5, and amended and passed S. 1. After disagreement between the House and Senate over amendments, the bill went to a conference committee. [https://www.congress.gov/104/crpt/hrpt76/CRPT-104hrpt76.pdf H.R. Rep. No. 104-76] (1995). Both houses agreed to the conference report. The Senate vote was 91-9 and the House vote was 394-28.<br />
<br />
On March 22, 1995, The Unfunded Mandates Reform Act of 1995 was signed into law by President Clinton as [https://www.govinfo.gov/content/pkg/PLAW-104publ4/pdf/PLAW-104publ4.pdf Pub. L. No. 104-4].<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Impact of Federal Mandates on State and Local Governments'', Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Operations, 103d Cong. (1993).<br />
*''Federal Mandates on State and Local Governments'', Hearing Before the S. Governmental Affs. Comm., 103d Cong. (1993).<br />
*''Impact of Unfunded Mandates on State and Local Governments'', Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Reform and Oversight, 103d Cong. (1994).<br />
*''Unfunded Federal Mandates: Who Should Pick Up the Tab?'', Hearing Before the Subcomm. on Investigation and Oversight of the H. Science Comm., 103d Cong. (1994).<br />
*''Unfunded Federal Mandates: Burdens and Costs in North Dakota'', Hearing Before the S. Governmental Affs. Comm., 103d Cong. (1994).<br />
*''Federal Mandate Reform Legislation'', Hearing Before the S. Governmental Affs. Comm., 103d Cong. (1994).<br />
*''Legislative Initiatives on Unfunded Mandates'', Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Reform and Oversight, 103d Cong. (1994).<br />
*S. 993, Federal Mandate Accountability and Reform Act of 1994, [https://www.govinfo.gov/content/pkg/BILLS-103s993rs/pdf/BILLS-103s993rs.pdf S. Rep. No. 103-330] (1994).<br />
*Unfunded Mandate Reform Act of 1995, [https://www.congress.gov/104/crpt/srpt2/CRPT-104srpt2.pdf S. Rep. No. 104-2] (1995).<br />
*Unfunded Mandate Reform Act of 1995, [https://www.congress.gov/104/crpt/hrpt1/CRPT-104hrpt1-pt1.pdf H. Rep. No. 104-1], pts. 1 and 2 (1995).<br />
*[http://commdocs.house.gov/committees/Trans/hpw104-4.000/hpw104-4_0f.htm Ways to Reduce Unfunded Federal Mandates and Regulatory Burdens on the Aviation Industry Without Affecting the Safety of the Traveling Public], Hearing Before the Subcomm. on Aviation, H. Transp. and Infrastructure Comm., 104th Cong. (1995).<br />
*Unfunded Mandates Reform Act of 1995, [https://www.congress.gov/104/crpt/hrpt76/CRPT-104hrpt76.pdf H. Rep. No. 104-76] (1995).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-104hhrg41231/pdf/CHRG-104hhrg41231.pdf The Unfunded Mandates Reform Act of 1995: One Year Later], Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Reform and Oversight, 105th Cong. (1996).<br />
*''Hearings on S. 1'' Before the Senate Budget Committee and the Senate Comm. Governmental Affs., 104th Cong. (1999).<br />
*''Hearings on H.R. 5 before the House Rules'', 104th Cong. (1999).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109shrg21429/pdf/CHRG-109shrg21429.pdf Passing the Buck, A Review of the Unfunded Mandates Reform Act], Hearing Before the Subcomm. on Oversight of Gov’t Management, the Fed. Workforce, and the District of Columbia of the S. Comm. on Homeland Sec. and Governmental Affs., 109th Cong. (2005).<br />
*''The Tenth Anniversary of the Unfunded Mandates Reform Act'', Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67172/pdf/CHRG-112hhrg67172.pdf Unfunded Mandates and Regulatory Overreach], Hearing Before the Subcomm. on Tech., Info. Pol'y, Intergovernmental Rels. and Procurement Reform of the Comm. on Oversight and Gov’t Reform, 112th Cong. (2011).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67619/pdf/CHRG-112hhrg67619.pdf Unfunded Mandates and Regulatory Overreach], Hearing Before the Subcomm. on Tech., Info. Pol'y, Intergovernmental Rels. and Procurement Reform of the Comm. on Oversight and Gov't Reform, 112th Cong. (2011).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg70678/pdf/CHRG-112hhrg70678.pdf Unfunded Mandates, Regulatory Burdens and the Role of the Office of Information and Regulatory Affairs], Hearing Before the Subcomm. on Tech., Info. Policy, Intergovernmental Rels. and Procurement Reform of the Comm. on Oversight and Gov’t Reform, 112th Cong. (2011).<br />
*Unfunded Mandates Information and Transparency Act of 2011, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt483/pdf/CRPT-112hrpt483-pt1.pdf H. Rep. No. 112-483] (2012).<br />
*Unfunded Mandates Information and Transparency Act of 2013, [https://www.govinfo.gov/content/pkg/CRPT-113hrpt352/pdf/CRPT-113hrpt352-pt1.pdf H. Rep. No. 113-352] (2014).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114shrg99989/pdf/CHRG-114shrg99989.pdf The Unfunded Mandates Reform Act: Opportunities for Improvement to Support State and Local Governments], Hearing Before Subcomm. on Regulatory Affs. and Fed. Mgmt. of the S. Comm. on Homeland Sec. and Governmental Affs., 114th Cong. (2016).<br />
</div><br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*Executive Order 13175, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO13175tribgovt.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
<br />
===ACUS Recommendations===<br />
<br />
*2012-1, [https://www.acus.gov/recommendation/regulatory-analysis-requirements Regulatory Analysis Requirements].<br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on Unfunded Mandates====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Agency Compliance with Title II of Unfunded Mandates Reform Act of 1995, Report to Congress from the Director of OMB (Mar. 22, 1996). These are annual reports. The [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/umra1999final.pdf 4th Annual Report] was issued in October 1999.<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2002).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2003).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2005).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2007).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2008).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2009).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2011).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2013).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2014).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2015).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2019/12/2019-CATS-5885-REV_DOC-2017Cost_BenefitReport11_18_2019.docx.pdf 2017 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates and Reform Act] (2017).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2021/01/2018_2019_2020-OMB-Cost-Benefit-Report.pdf 2018, 2019, and 2020 Reports to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (2020).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memorandum for the Heads of Executive Departments and Agencies, and Independent Regulatory Agencies, M-94-1, ''Guidance for Implementing E.O. 12,875,'' ''Reduction of Unfunded Mandates'' (Jan. 11, 1994).<br />
*Memorandum for the Heads of Executive Departments and Agencies, M-95-09, [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/1995-1998/m95-09.pdf Guidance for Implementing Title II of S.1] (Mar. 31, 1995).<br />
*Memorandum for the Heads of Departments and Agencies, M-95-20, [https://www.gsa.gov/policy-regulations/policy/federal-advisory-committee-management/legislation-and-regulations/implementing-section-204-as-related-to-faca Guidelines and Instructions for Implementing Section 204, State, Local, and Tribal Government Input, of Title II of P.L. 104-4] (Sept. 29, 1995).<br />
</div><br />
<br />
===Congressional Budget Office Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.cbo.gov/publication/51335#section4 CBO’s Activities Under the Unfunded Mandates Reform Act].<br />
*[https://www.cbo.gov/sites/default/files/103rd-congress-1993-1994/reports/doc45.pdf Preliminary Analysis of Unfunded Federal Mandates and the Cost of the Safe Drinking Water Act](1994).<br />
*[https://www.cbo.gov/sites/default/files/105th-congress-1997-1998/reports/umra1st.pdf The Experience of the Congressional Budget Office During the First Year of the Unfunded Mandates Reform Act] (1997).<br />
*[https://www.cbo.gov/sites/default/files/109th-congress-2005-2006/reports/03-31-umra_4.pdf A Review of CBO’s Activities Under the Unfunded Mandates Reform Act, 1996 to 2005] (2006).<br />
*[https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/04-03-umra.pdf A Review of CBO’s Activities in 2006 Under the Unfunded Mandates Reform Act] (2007).<br />
*[https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/03-31-umra0.pdf A Review of CBO’s Activities in 2007 Under the Unfunded Mandates Reform Act] (2008).<br />
*[https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/reports/03-31-umra_1.pdf A Review of CBO’s Activities in 2008 Under the Unfunded Mandates Reform Act] (2009).<br />
*[https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/reports/03-31-umra2.pdf A Review of CBO’s Activities in 2009 Under the Unfunded Mandates Reform Act] (2010).<br />
*[https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/03-31-umra.pdf A Review of CBO’s Activities in 2010 Under the Unfunded Mandates Reform Act] (2011).<br />
*[https://www.cbo.gov/sites/default/files/03-30-UMRA.pdf A Review of CBO’s Activities in 2011 Under the Unfunded Mandates Reform Act] (2012).<br />
*[https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/hr373LankfordLtr.pdf Input Regarding H.R. 373, the Unfunded Mandates Information and Transparency Act of 2011], Letter to the Hon. James Lankford (Mar. 30, 2012).<br />
*[https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/44032_UMRA.pdf A Review of CBO’s Activities in 2012 Under the Unfunded Mandates Reform Act] (2013).<br />
*[https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/45209-UMRA.pdf A Review of CBO’s Activities in 2013 Under the Unfunded Mandates Reform Act] (2014).<br />
*[https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/50051-UMRA2_0.pdf A Review of CBO’s Activities in 2014 Under the Unfunded Mandates Reform Act] (2015).<br />
*[https://www.cbo.gov/publication/51335%22%20%5Ct%20%22_blank CBO’s Activities Under the Unfunded Mandates Reform Act] (2021).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Advisory Comm’n on Intergov’tal Relations, ''Federal Court Rulings Involving State, Local, and Tribal Governments Calendar Year 1994: A Report Prepared Under Section 304, Unfunded Mandates Reform Act of 1995'' (M-196) (1995).<br />
*Richard S. Beth, Cong. Research Serv., RL 98-48, ''Mandates Information Act: Implications for Congressional Action on Legislation Containing Private Sector Mandates'' (1998).<br />
*Gen. Accounting Office, GAO/GGD-98-30, [https://www.gao.gov/assets/230/225165.pdf Unfunded Mandates Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, A Report to the Senate Committee on Governmental Affairs] (1998).<br />
*Gen. Accounting Office, GAO-04-637, [https://www.gao.gov/new.items/d04637.pdf Unfunded Mandates: Analysis of Reform Act Coverage] (2004).<br />
*Gov’t Accountability Office, GAO-05-454, [http://www.gao.gov/new.items/d05454.pdf Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement] (2005).<br />
*Gov’t Accountability Office, GAO-11-385T, [https://www.gao.gov/assets/130/125488.pdf Federal Mandates: Few Rules Trigger Unfunded Mandates Reform Act] (2011).<br />
*Robert Jay Dilger & Natalie Keegan, Cong. Rsch. Serv., R40957, [https://crsreports.congress.gov/product/pdf/R/R40957 Unfunded Mandates Reform Act: History, Impact, and Issues] (2021).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Robert W. Adler, ''Unfunded Mandates and Fiscal Federalism: A Critique'', 50 Vand. L. Rev. 1137 (1997).<br />
*Cary Coglianese, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2005&context=aulr Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel H. Cole & Carol S. Comer, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1648&context=facpub Rhetoric, Reality, and the Law of Unfunded Federal Mandates], 8 Stan. L. & Pol’y Rev. 103 (1997).<br />
*David A. Dana, ''The Case for Unfunded Environmental Mandates'', 69 S. Cal. L. Rev. 1 (1995).<br />
*Denise D. Fort, Essay, [https://digitalrepository.unm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1815&context=nrj The Unfunded Mandates Reform Act of 1995: Where Will the New Federalism Take Environmental Policy?], 35 Nat. Resources J. 727 (1995).<br />
*Elizabeth Garrett, ''Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995'', 45 U. Kan. L. Rev. 1113 (1997).<br />
*Elizabeth Garrett, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1264&context=ndlr Framework Legislation and Federalism], 83 Notre Dame L. Rev. 1495 (2008).<br />
*Daniel S. Herzfeld, Comment, ''Accountability and the Nondelegation of Unfunded Mandates: A Public Choice Analysis of the Supreme Court’s Tenth Amendment Federalism Jurisprudence'', 7 Geo. Mason L. Rev. 419 (1999).<br />
*Makram B. Jaber, Comment, ''Unfunded Federal Mandates: An Issue of Federalism or a Brilliant Sound Bite'', 45 Emory L. J. 281 (1996).<br />
*Tracy A. Kaye, ''Show Me the Money: Congressional Limitations on State Tax Sovereignty'', 35 Harv. J. on Legis. 149 (1998).<br />
*Raymond W. Lawton & Bob Burns, ''Models of Cooperative Federalism for Telecommunications'', 6 Alb. L. J. Sci. & Tech. 71 (1996).<br />
*Susan E. Leckrone, Note, [http://ilj.law.indiana.edu/articles/71/71_4_Leckrone.pdf Turning Back the Clock: The Unfunded Mandates Reform Act of 1995 and Its Effective Repeal of Environmental Legislation], 71 Ind. L.J. 1029 (1996).<br />
*Eileen M. Luna, [https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1265&context=ailr The Impact of the Unfunded Mandates Reform Act of 1995 on Tribal Governments], 22 Am. Indian L. Rev. 445 (1998).<br />
*Russell A. Miller, [http://ilj.law.indiana.edu/articles/85/85_1_Miller.pdf Clinton, Ginsburg, and Centrist Federalism], 85 Ind. L.J. 225 (2010).<br />
*Robert M. M. Shaffer, Comment, ''Unfunded State Mandates and Local Governments'', 64 U. Cin. L. Rev. 1057 (1996).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Daniel E. Troy, ''The Unfunded Mandates Reform Act of 1995'', 49 Admin. L. Rev. 139 (1997).<br />
*Edward A. Zelinsky, ''The Unsolved Problem of the Unfunded Mandate'', 23 Ohio N. U. L. Rev. 741 (1997).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Unfunded Mandates Reform Act, <br />
<br />
Title 2 U.S. Code<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim Chapter 25—Unfunded Mandates Reform]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1501&num=0&edition=prelim § 1501. Purposes]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1502&num=0&edition=prelim § 1502. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1503&num=0&edition=prelim § 1503. Exclusions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1531&num=0&edition=prelim § 1531. Regulatory process]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1532&num=0&edition=prelim § 1532. Statements to accompany significant regulatory actions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1533&num=0&edition=prelim § 1533. Small government agency plan]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1534&num=0&edition=prelim § 1534. State, local, and tribal government input]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1535&num=0&edition=prelim § 1535. Least burdensome option or explanation required]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1536&num=0&edition=prelim § 1536. Assistance to Congressional Budget Office]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1555&num=0&edition=prelim § 1555. “Federal mandate” defined]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1571&num=0&edition=prelim § 1571. Judicial review]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Unfunded_Mandates_Reform_Act&diff=1694Unfunded Mandates Reform Act2023-08-15T22:03:06Z<p>MGluth: </p>
<hr />
<div>2 U.S.C. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim §§ 1501-1571] (2012); enacted by [https://www.govinfo.gov/content/pkg/PLAW-104publ4/pdf/PLAW-104publ4.pdf Pub. L. No. 104–4], 109 Stat. 48, Mar. 22, 1995.<br />
<br />
'''Lead Agencies:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Management and Budget, Office of Information and Regulatory Affairs]<br />
<br />
[https://www.cbo.gov/about/organization-and-staffing#bad Congressional Budget Office, Budget Analysis Division]<br />
<br />
==Overview==<br />
The Unfunded Mandates Reform Act (UMRA), which was enacted in 1995 with broad, bipartisan support, requires Congress and federal agencies (excepting independent agencies) to give special consideration to proposed legislation and regulations imposing mandates on state, local, and tribal entities. It also contains a provision requiring agencies to prepare a written statement, in the nature of a regulatory impact analysis, for any proposed rulemaking that is likely to result in an expenditure by the private sector in excess of $100 million. UMRA thus contains the only broad regulatory impact analysis requirement currently mandated by statute, and as such codifies many of the provisions in Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review]. UMRA’s impact is, however, somewhat lessened because its provisions for judicial review of agency compliance with UMRA are somewhat limited.<br />
<br />
UMRA’s purpose was to help reveal, and ultimately limit, the high (and often hidden) costs of federal mandates on state and local governments to undertake regulatory activity without sufficient federal compensation for this activity.<br />
<br />
Title I modifies the legislative process by requiring any Congressional authorizing committee that approves a bill containing a federal mandate (with some exceptions) to identify that mandate in its committee report. The Congressional Budget Office (CBO) must then estimate the overall impact of such mandates, and a point of order can be raised by any member against a bill that lacks such an estimate or if the bill contains an unfunded mandate exceeding $50 million burden on state and local governments or $100 million on the private sector; these thresholds are adjusted annually for inflation.<br />
<br />
Title II addresses federal agency regulations containing regulatory mandates of state, local, and tribal governments and on the private sector. The key requirement is for a written “statement to accompany significant regulatory actions.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532]. The statement is required in “any general notice of proposed rulemaking that is likely to result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532(a)]. <br />
<br />
The statement must include <br />
<br />
#Citation to the law under which the rule is being promulgated;<br />
#“A qualitative and quantitative assessment of the anticipated costs and benefits of the Federal mandate . . . as well as the effect of the Federal mandate on health, safety, and the natural environment” along with an analysis of the availability of federal funds to help governments pay for the mandate;<br />
#Estimates of future compliance costs and of disproportionate budgetary effects on regions or particular governments or segments of the private sector;<br />
#Estimates of the effect on aspects of the national economy; and<br />
#A summary of the agency’s consultations with elected representatives "of the affected State, local, and tribal governments" including the comments and concerns raised and the agency's evaluation of them.<br />
<br />
The agency must also develop a plan to specially notify state, local, and tribal governments of such requirements and develop a process to receive meaningful and timely input from elected officials. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1534(a)]. An exemption from the [[Federal Advisory Committee Act]] is carved out for such consultations. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1534(b)]. A summary of this statement must appear in the notice of proposed rulemaking. However, UMRA does allow agencies to prepare the statement “in conjunction with or as a part of any other statement or analysis.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532(c)]. <br />
<br />
Before issuing a final rule that was subject to the above requirements, the agency must “identify and consider a reasonable number of regulatory alternatives and from those alternatives, select the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.” (2 U.S.C. § 1535).<br />
<br />
Judicial review of agency compliance with UMRA is limited. UMRA provides that judicial review of the agency statements accompanying significant regulatory actions is subject to review only under 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section706&num=0&edition=prelim § 706(1)], which allows courts to “compel agency action unlawfully withheld or unreasonably delayed.” This means that courts may compel the production of such agency statements but cannot review the contents of them. In fact, UMRA makes clear that “the inadequacy or failure to prepare such statement (including the inadequacy or failure to prepare any estimate, analysis, statement or description) or written plan shall not be used as a basis for staying, enjoining, invalidating or otherwise affecting such agency rule” (2 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1571&num=0&edition=prelim § 1571(a)(3)]). <br />
<br />
UMRA requires OMB to submit annual reports to Congress on agency compliance with Title II, and OMB has submitted such reports since 1996. 2 U.S.C. § 1538. UMRA also requires the Advisory Commission on Intergovernmental Relations to submit an annual report to Congress and the President "describing any Federal court case to which a State, local, or tribal government was a party" in the previous year and required these entities to undertake additional responsibilities or activities to comply with Federal law. 2 U.S.C. § 1554.<br />
<br />
==Legislative History==<br />
In the 103rd Congress, eight bills were introduced that addressed the issue of unfunded mandates. This was directly in response to the pressure building over the previous 15 years from state and local governments. Over those years, Congress continued a pattern of cutting federal funding while enacting statutes that passed costs onto state and local governments without providing funding to cover those costs. To demonstrate their dissatisfaction, the state and local governments declared October 27, 1993, “National Unfunded Mandates Day.”<br />
<br />
Senator Dirk Kempthorne introduced the Community Regulatory Relief Act ([https://www.congress.gov/103/bills/s993/BILLS-103s993rs.pdf S. 993]), which had more than 50 co-sponsors. However, S. 993 was not considered for a vote, and Congress adjourned without further consideration of the bill.<br />
<br />
The Unfunded Mandates Reform Act of 1995 ([https://www.congress.gov/104/bills/s1/BILLS-104s1rs.pdf S. 1] and its companion bill, the Unfunded Mandate Reform Act of 1995 ([https://www.congress.gov/104/bills/hr5/BILLS-104hr5rh.pdf H.R. 5]) was introduced in the 104th Congress. It was rapidly reported out of committee in both houses. In February, the House passed H.R. 5, and amended and passed S. 1. After disagreement between the House and Senate over amendments, the bill went to a conference committee. [https://www.congress.gov/104/crpt/hrpt76/CRPT-104hrpt76.pdf H.R. Rep. No. 104-76] (1995). Both houses agreed to the conference report. The Senate vote was 91-9 and the House vote was 394-28.<br />
<br />
On March 22, 1995, The Unfunded Mandates Reform Act of 1995 was signed into law by President Clinton as [https://www.govinfo.gov/content/pkg/PLAW-104publ4/pdf/PLAW-104publ4.pdf Pub. L. No. 104-4].<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Impact of Federal Mandates on State and Local Governments'', Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Operations, 103d Cong. (1993).<br />
*''Federal Mandates on State and Local Governments'', Hearing Before the S. Governmental Affs. Comm., 103d Cong. (1993).<br />
*''Impact of Unfunded Mandates on State and Local Governments'', Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Reform and Oversight, 103d Cong. (1994).<br />
*''Unfunded Federal Mandates: Who Should Pick Up the Tab?'', Hearing Before the Subcomm. on Investigation and Oversight of the H. Science Comm., 103d Cong. (1994).<br />
*''Unfunded Federal Mandates: Burdens and Costs in North Dakota'', Hearing Before the S. Governmental Affs. Comm., 103d Cong. (1994).<br />
*''Federal Mandate Reform Legislation'', Hearing Before the S. Governmental Affs. Comm., 103d Cong. (1994).<br />
*''Legislative Initiatives on Unfunded Mandates'', Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Reform and Oversight, 103d Cong. (1994).<br />
*S. 993, Federal Mandate Accountability and Reform Act of 1994, [https://www.govinfo.gov/content/pkg/BILLS-103s993rs/pdf/BILLS-103s993rs.pdf S. Rep. No. 103-330] (1994).<br />
*Unfunded Mandate Reform Act of 1995, [https://www.congress.gov/104/crpt/srpt2/CRPT-104srpt2.pdf S. Rep. No. 104-2] (1995).<br />
*Unfunded Mandate Reform Act of 1995, [https://www.congress.gov/104/crpt/hrpt1/CRPT-104hrpt1-pt1.pdf H. Rep. No. 104-1], pts. 1 and 2 (1995).<br />
*[http://commdocs.house.gov/committees/Trans/hpw104-4.000/hpw104-4_0f.htm Ways to Reduce Unfunded Federal Mandates and Regulatory Burdens on the Aviation Industry Without Affecting the Safety of the Traveling Public], Hearing Before the Subcomm. on Aviation, H. Transp. and Infrastructure Comm., 104th Cong. (1995).<br />
*Unfunded Mandates Reform Act of 1995, [https://www.congress.gov/104/crpt/hrpt76/CRPT-104hrpt76.pdf H. Rep. No. 104-76] (1995).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-104hhrg41231/pdf/CHRG-104hhrg41231.pdf The Unfunded Mandates Reform Act of 1995: One Year Later], Hearing Before the Subcomm. on Human Res. and Intergovernmental Rels. of the H. Comm. on Gov’t Reform and Oversight, 105th Cong. (1996).<br />
*''Hearings on S. 1'' Before the Senate Budget Committee and the Senate Comm. Governmental Affs., 104th Cong. (1999).<br />
*''Hearings on H.R. 5 before the House Rules'', 104th Cong. (1999).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109shrg21429/pdf/CHRG-109shrg21429.pdf Passing the Buck, A Review of the Unfunded Mandates Reform Act], Hearing Before the Subcomm. on Oversight of Gov’t Management, the Fed. Workforce, and the District of Columbia of the S. Comm. on Homeland Sec. and Governmental Affs., 109th Cong. (2005).<br />
*''The Tenth Anniversary of the Unfunded Mandates Reform Act'', Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67172/pdf/CHRG-112hhrg67172.pdf Unfunded Mandates and Regulatory Overreach], Hearing Before the Subcomm. on Tech., Info. Pol'y, Intergovernmental Rels. and Procurement Reform of the Comm. on Oversight and Gov’t Reform, 112th Cong. (2011).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67619/pdf/CHRG-112hhrg67619.pdf Unfunded Mandates and Regulatory Overreach], Hearing Before the Subcomm. on Tech., Info. Pol'y, Intergovernmental Rels. and Procurement Reform of the Comm. on Oversight and Gov't Reform, 112th Cong. (2011).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg70678/pdf/CHRG-112hhrg70678.pdf Unfunded Mandates, Regulatory Burdens and the Role of the Office of Information and Regulatory Affairs], Hearing Before the Subcomm. on Tech., Info. Policy, Intergovernmental Rels. and Procurement Reform of the Comm. on Oversight and Gov’t Reform, 112th Cong. (2011).<br />
*Unfunded Mandates Information and Transparency Act of 2011, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt483/pdf/CRPT-112hrpt483-pt1.pdf H. Rep. No. 112-483] (2012).<br />
*Unfunded Mandates Information and Transparency Act of 2013, [https://www.govinfo.gov/content/pkg/CRPT-113hrpt352/pdf/CRPT-113hrpt352-pt1.pdf H. Rep. No. 113-352] (2014).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114shrg99989/pdf/CHRG-114shrg99989.pdf The Unfunded Mandates Reform Act: Opportunities for Improvement to Support State and Local Governments], Hearing Before Subcomm. on Regulatory Affs. and Fed. Mgmt. of the S. Comm. on Homeland Sec. and Governmental Affs., 114th Cong. (2016).<br />
</div><br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*Executive Order 13175, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO13175tribgovt.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on Unfunded Mandates====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Agency Compliance with Title II of Unfunded Mandates Reform Act of 1995, Report to Congress from the Director of OMB (Mar. 22, 1996). These are annual reports. The [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/umra1999final.pdf 4th Annual Report] was issued in October 1999.<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2001).<br />
*[http://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation, 2002 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2002).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions, 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2003).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform, 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2004).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis, 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2007).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2008).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2009).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2011).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2013).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2014).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2015).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2015).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2019/12/2019-CATS-5885-REV_DOC-2017Cost_BenefitReport11_18_2019.docx.pdf 2017 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates and Reform Act] (2017).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2021/01/2018_2019_2020-OMB-Cost-Benefit-Report.pdf 2018, 2019, and 2020 Reports to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (2020).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memorandum for the Heads of Executive Departments and Agencies, and Independent Regulatory Agencies, M-94-1, ''Guidance for Implementing E.O. 12,875,'' ''Reduction of Unfunded Mandates'' (Jan. 11, 1994).<br />
*Memorandum for the Heads of Executive Departments and Agencies, M-95-09, [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/1995-1998/m95-09.pdf Guidance for Implementing Title II of S.1] (Mar. 31, 1995).<br />
*Memorandum for the Heads of Departments and Agencies, M-95-20, [https://www.gsa.gov/policy-regulations/policy/federal-advisory-committee-management/legislation-and-regulations/implementing-section-204-as-related-to-faca Guidelines and Instructions for Implementing Section 204, State, Local, and Tribal Government Input, of Title II of P.L. 104-4] (Sept. 29, 1995).<br />
</div><br />
<br />
===Congressional Budget Office Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.cbo.gov/publication/51335#section4 CBO’s Activities Under the Unfunded Mandates Reform Act].<br />
*[https://www.cbo.gov/sites/default/files/103rd-congress-1993-1994/reports/doc45.pdf Preliminary Analysis of Unfunded Federal Mandates and the Cost of the Safe Drinking Water Act](1994).<br />
*[https://www.cbo.gov/sites/default/files/105th-congress-1997-1998/reports/umra1st.pdf The Experience of the Congressional Budget Office During the First Year of the Unfunded Mandates Reform Act] (1997).<br />
*[https://www.cbo.gov/sites/default/files/109th-congress-2005-2006/reports/03-31-umra_4.pdf A Review of CBO’s Activities Under the Unfunded Mandates Reform Act, 1996 to 2005] (2006).<br />
*[https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/04-03-umra.pdf A Review of CBO’s Activities in 2006 Under the Unfunded Mandates Reform Act] (2007).<br />
*[https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/03-31-umra0.pdf A Review of CBO’s Activities in 2007 Under the Unfunded Mandates Reform Act] (2008).<br />
*[https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/reports/03-31-umra_1.pdf A Review of CBO’s Activities in 2008 Under the Unfunded Mandates Reform Act] (2009).<br />
*[https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/reports/03-31-umra2.pdf A Review of CBO’s Activities in 2009 Under the Unfunded Mandates Reform Act] (2010).<br />
*[https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/03-31-umra.pdf A Review of CBO’s Activities in 2010 Under the Unfunded Mandates Reform Act] (2011).<br />
*[https://www.cbo.gov/sites/default/files/03-30-UMRA.pdf A Review of CBO’s Activities in 2011 Under the Unfunded Mandates Reform Act] (2012).<br />
*[https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/hr373LankfordLtr.pdf Input Regarding H.R. 373, the Unfunded Mandates Information and Transparency Act of 2011], Letter to the Hon. James Lankford (Mar. 30, 2012).<br />
*[https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/44032_UMRA.pdf A Review of CBO’s Activities in 2012 Under the Unfunded Mandates Reform Act] (2013).<br />
*[https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/45209-UMRA.pdf A Review of CBO’s Activities in 2013 Under the Unfunded Mandates Reform Act] (2014).<br />
*[https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/50051-UMRA2_0.pdf A Review of CBO’s Activities in 2014 Under the Unfunded Mandates Reform Act] (2015).<br />
*[https://www.cbo.gov/publication/51335%22%20%5Ct%20%22_blank CBO’s Activities Under the Unfunded Mandates Reform Act] (2021).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Advisory Comm’n on Intergov’tal Relations, ''Federal Court Rulings Involving State, Local, and Tribal Governments Calendar Year 1994: A Report Prepared Under Section 304, Unfunded Mandates Reform Act of 1995'' (M-196) (1995).<br />
*Richard S. Beth, Cong. Research Serv., RL 98-48, ''Mandates Information Act: Implications for Congressional Action on Legislation Containing Private Sector Mandates'' (1998).<br />
*Gen. Accounting Office, GAO/GGD-98-30, [https://www.gao.gov/assets/230/225165.pdf Unfunded Mandates Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, A Report to the Senate Committee on Governmental Affairs] (1998).<br />
*Gen. Accounting Office, GAO-04-637, [https://www.gao.gov/new.items/d04637.pdf Unfunded Mandates: Analysis of Reform Act Coverage] (2004).<br />
*Gov’t Accountability Office, GAO-05-454, [http://www.gao.gov/new.items/d05454.pdf Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement] (2005).<br />
*Gov’t Accountability Office, GAO-11-385T, [https://www.gao.gov/assets/130/125488.pdf Federal Mandates: Few Rules Trigger Unfunded Mandates Reform Act] (2011).<br />
*Robert Jay Dilger & Natalie Keegan, Cong. Rsch. Serv., R40957, [https://crsreports.congress.gov/product/pdf/R/R40957 Unfunded Mandates Reform Act: History, Impact, and Issues] (2021).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Robert W. Adler, ''Unfunded Mandates and Fiscal Federalism: A Critique'', 50 Vand. L. Rev. 1137 (1997).<br />
*Cary Coglianese, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2005&context=aulr Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel H. Cole & Carol S. Comer, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1648&context=facpub Rhetoric, Reality, and the Law of Unfunded Federal Mandates], 8 Stan. L. & Pol’y Rev. 103 (1997).<br />
*David A. Dana, ''The Case for Unfunded Environmental Mandates'', 69 S. Cal. L. Rev. 1 (1995).<br />
*Denise D. Fort, Essay, [https://digitalrepository.unm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1815&context=nrj The Unfunded Mandates Reform Act of 1995: Where Will the New Federalism Take Environmental Policy?], 35 Nat. Resources J. 727 (1995).<br />
*Elizabeth Garrett, ''Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995'', 45 U. Kan. L. Rev. 1113 (1997).<br />
*Elizabeth Garrett, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1264&context=ndlr Framework Legislation and Federalism], 83 Notre Dame L. Rev. 1495 (2008).<br />
*Daniel S. Herzfeld, Comment, ''Accountability and the Nondelegation of Unfunded Mandates: A Public Choice Analysis of the Supreme Court’s Tenth Amendment Federalism Jurisprudence'', 7 Geo. Mason L. Rev. 419 (1999).<br />
*Makram B. Jaber, Comment, ''Unfunded Federal Mandates: An Issue of Federalism or a Brilliant Sound Bite'', 45 Emory L. J. 281 (1996).<br />
*Tracy A. Kaye, ''Show Me the Money: Congressional Limitations on State Tax Sovereignty'', 35 Harv. J. on Legis. 149 (1998).<br />
*Raymond W. Lawton & Bob Burns, ''Models of Cooperative Federalism for Telecommunications'', 6 Alb. L. J. Sci. & Tech. 71 (1996).<br />
*Susan E. Leckrone, Note, [http://ilj.law.indiana.edu/articles/71/71_4_Leckrone.pdf Turning Back the Clock: The Unfunded Mandates Reform Act of 1995 and Its Effective Repeal of Environmental Legislation], 71 Ind. L.J. 1029 (1996).<br />
*Eileen M. Luna, [https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1265&context=ailr The Impact of the Unfunded Mandates Reform Act of 1995 on Tribal Governments], 22 Am. Indian L. Rev. 445 (1998).<br />
*Russell A. Miller, [http://ilj.law.indiana.edu/articles/85/85_1_Miller.pdf Clinton, Ginsburg, and Centrist Federalism], 85 Ind. L.J. 225 (2010).<br />
*Robert M. M. Shaffer, Comment, ''Unfunded State Mandates and Local Governments'', 64 U. Cin. L. Rev. 1057 (1996).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Daniel E. Troy, ''The Unfunded Mandates Reform Act of 1995'', 49 Admin. L. Rev. 139 (1997).<br />
*Edward A. Zelinsky, ''The Unsolved Problem of the Unfunded Mandate'', 23 Ohio N. U. L. Rev. 741 (1997).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Unfunded Mandates Reform Act, <br />
<br />
Title 2 U.S. Code<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim Chapter 25—Unfunded Mandates Reform]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1501&num=0&edition=prelim § 1501. Purposes]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1502&num=0&edition=prelim § 1502. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1503&num=0&edition=prelim § 1503. Exclusions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1531&num=0&edition=prelim § 1531. Regulatory process]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1532&num=0&edition=prelim § 1532. Statements to accompany significant regulatory actions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1533&num=0&edition=prelim § 1533. Small government agency plan]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1534&num=0&edition=prelim § 1534. State, local, and tribal government input]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1535&num=0&edition=prelim § 1535. Least burdensome option or explanation required]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1536&num=0&edition=prelim § 1536. Assistance to Congressional Budget Office]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1555&num=0&edition=prelim § 1555. “Federal mandate” defined]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1571&num=0&edition=prelim § 1571. Judicial review]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Unfunded_Mandates_Reform_Act&diff=1693Unfunded Mandates Reform Act2023-08-15T21:58:47Z<p>MGluth: </p>
<hr />
<div>2 U.S.C. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim §§ 1501-1571] (2012); enacted by [https://www.govinfo.gov/content/pkg/PLAW-104publ4/pdf/PLAW-104publ4.pdf Pub. L. No. 104–4], 109 Stat. 48, Mar. 22, 1995.<br />
<br />
'''Lead Agencies:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Management and Budget, Office of Information and Regulatory Affairs]<br />
<br />
[https://www.cbo.gov/about/organization-and-staffing#bad Congressional Budget Office, Budget Analysis Division]<br />
<br />
==Overview==<br />
The Unfunded Mandates Reform Act (UMRA), which was enacted in 1995 with broad, bipartisan support, requires Congress and federal agencies (excepting independent agencies) to give special consideration to proposed legislation and regulations imposing mandates on state, local, and tribal entities. It also contains a provision requiring agencies to prepare a written statement, in the nature of a regulatory impact analysis, for any proposed rulemaking that is likely to result in an expenditure by the private sector in excess of $100 million. UMRA thus contains the only broad regulatory impact analysis requirement currently mandated by statute, and as such codifies many of the provisions in Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review]. UMRA’s impact is, however, somewhat lessened because its provisions for judicial review of agency compliance with UMRA are somewhat limited.<br />
<br />
UMRA’s purpose was to help reveal, and ultimately limit, the high (and often hidden) costs of federal mandates on state and local governments to undertake regulatory activity without sufficient federal compensation for this activity.<br />
<br />
Title I modifies the legislative process by requiring any Congressional authorizing committee that approves a bill containing a federal mandate (with some exceptions) to identify that mandate in its committee report. The Congressional Budget Office (CBO) must then estimate the overall impact of such mandates, and a point of order can be raised by any member against a bill that lacks such an estimate or if the bill contains an unfunded mandate exceeding $50 million burden on state and local governments or $100 million on the private sector; these thresholds are adjusted annually for inflation.<br />
<br />
Title II addresses federal agency regulations containing regulatory mandates of state, local, and tribal governments and on the private sector. The key requirement is for a written “statement to accompany significant regulatory actions.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532]. The statement is required in “any general notice of proposed rulemaking that is likely to result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532(a)]. <br />
<br />
The statement must include <br />
<br />
#Citation to the law under which the rule is being promulgated;<br />
#“A qualitative and quantitative assessment of the anticipated costs and benefits of the Federal mandate . . . as well as the effect of the Federal mandate on health, safety, and the natural environment” along with an analysis of the availability of federal funds to help governments pay for the mandate;<br />
#Estimates of future compliance costs and of disproportionate budgetary effects on regions or particular governments or segments of the private sector;<br />
#Estimates of the effect on aspects of the national economy; and<br />
#A summary of the agency’s consultations with elected representatives "of the affected State, local, and tribal governments" including the comments and concerns raised and the agency's evaluation of them.<br />
<br />
The agency must also develop a plan to specially notify state, local, and tribal governments of such requirements and develop a process to receive meaningful and timely input from elected officials. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1534(a)]. An exemption from the [[Federal Advisory Committee Act]] is carved out for such consultations. [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1534(b)]. A summary of this statement must appear in the notice of proposed rulemaking. However, UMRA does allow agencies to prepare the statement “in conjunction with or as a part of any other statement or analysis.” [http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim 2 U.S.C. § 1532(c)]. <br />
<br />
Before issuing a final rule that was subject to the above requirements, the agency must “identify and consider a reasonable number of regulatory alternatives and from those alternatives, select the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.” (2 U.S.C. § 1535).<br />
<br />
Judicial review of agency compliance with UMRA is limited. UMRA provides that judicial review of the agency statements accompanying significant regulatory actions is subject to review only under 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section706&num=0&edition=prelim § 706(1)], which allows courts to “compel agency action unlawfully withheld or unreasonably delayed.” This means that courts may compel the production of such agency statements but cannot review the contents of them. In fact, UMRA makes clear that “the inadequacy or failure to prepare such statement (including the inadequacy or failure to prepare any estimate, analysis, statement or description) or written plan shall not be used as a basis for staying, enjoining, invalidating or otherwise affecting such agency rule” (2 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1571&num=0&edition=prelim § 1571(a)(3)]). <br />
<br />
UMRA requires OMB to submit annual reports to Congress on agency compliance with Title II, and OMB has submitted such reports since 1996. 2 U.S.C. § 1538. UMRA also requires the Advisory Commission on Intergovernmental Relations to submit an annual report to Congress and the President "describing any Federal court case to which a State, local, or tribal government was a party" in the previous year and required these entities to undertake additional responsibilities or activities to comply with Federal law. 2 U.S.C. § 1554.<br />
<br />
==Legislative History==<br />
In the 103rd Congress, eight bills were introduced that addressed the issue of unfunded mandates. This was directly in response to the pressure building over the previous 15 years from state and local governments. Over those years, Congress continued a pattern of cutting federal funding while enacting statutes that passed costs onto state and local governments without providing funding to cover those costs. To demonstrate their dissatisfaction, the state and local governments declared October 27, 1993, “National Unfunded Mandates Day.”<br />
<br />
Senator Dirk Kempthorne introduced the Community Regulatory Relief Act ([https://www.congress.gov/103/bills/s993/BILLS-103s993rs.pdf S. 993]), which had more than 50 co-sponsors. However, S. 993 was not considered for a vote, and Congress adjourned without further consideration of the bill.<br />
<br />
The Unfunded Mandates Reform Act of 1995 ([https://www.congress.gov/104/bills/s1/BILLS-104s1rs.pdf S. 1] and its companion bill, the Unfunded Mandate Reform Act of 1995 ([https://www.congress.gov/104/bills/hr5/BILLS-104hr5rh.pdf H.R. 5]) was introduced in the 104th Congress. It was rapidly reported out of committee in both houses. In February, the House passed H.R. 5, and amended and passed S. 1. After disagreement between the House and Senate over amendments, the bill went to a conference committee. [https://www.congress.gov/104/crpt/hrpt76/CRPT-104hrpt76.pdf H.R. Rep. No. 104-76] (1995). Both houses agreed to the conference report. The Senate vote was 91-9 and the House vote was 394-28.<br />
<br />
On March 22, 1995, The Unfunded Mandates Reform Act of 1995 was signed into law by President Clinton as [https://www.govinfo.gov/content/pkg/PLAW-104publ4/pdf/PLAW-104publ4.pdf Pub. L. No. 104-4].<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Impact of Federal Mandates on State and Local Governments'', Hearing Before the Subcomm. on Human Res. and Intergov’tal Relations of the H. Comm. on Gov’t Operations, 103d Cong. (1993).<br />
*''Federal Mandates on State and Local Governments'', Hearing Before the S. Gov’tal Affairs Comm., 103d Cong. (1993).<br />
*''Impact of Unfunded Mandates on State and Local Governments'', Hearing Before the Subcomm. on Human Res. and Intergov’tal Relations of the H. Comm. on Gov’t Reform and Oversight, 103d Cong. (1994).<br />
*''Unfunded Federal Mandates: Who Should Pick Up the Tab?'', Hearing Before the Subcomm. on Investigation and Oversight of the H. Science Comm., 103d Cong. (1994).<br />
*''Unfunded Federal Mandates: Burdens and Costs in North Dakota'', Hearing Before the S. Gov’tal Affairs Comm., 103d Cong. (1994).<br />
*''Federal Mandate Reform Legislation'', Hearing Before the S. Gov’tal Affairs Comm., 103d Cong. (1994).<br />
*''Legislative Initiatives on Unfunded Mandates'', Hearing Before the Subcomm. on Human Res. and Intergov’tal Relations of the H. Comm. on Gov’t Reform and Oversight, 103d Cong. (1994).<br />
*S. 993, Federal Mandate Accountability and Reform Act of 1994, [https://www.govinfo.gov/content/pkg/BILLS-103s993rs/pdf/BILLS-103s993rs.pdf S. Rep. No. 103-330] (1994).<br />
*Unfunded Mandate Reform Act of 1995, [https://www.congress.gov/104/crpt/srpt2/CRPT-104srpt2.pdf S. Rep. No. 104-2] (1995).<br />
*Unfunded Mandate Reform Act of 1995, [https://www.congress.gov/104/crpt/hrpt1/CRPT-104hrpt1-pt1.pdf H. Rep. No. 104-1], pts. 1 and 2 (1995).<br />
*[http://commdocs.house.gov/committees/Trans/hpw104-4.000/hpw104-4_0f.htm Ways to Reduce Unfunded Federal Mandates and Regulatory Burdens on the Aviation Industry Without Affecting the Safety of the Traveling Public], Hearing Before the Subcomm. on Aviation, H. Transp. and Infrastructure Comm., 104th Cong. (1995).<br />
*Unfunded Mandates Reform Act of 1995, [https://www.congress.gov/104/crpt/hrpt76/CRPT-104hrpt76.pdf H. Rep. No. 104-76] (1995).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-104hhrg41231/pdf/CHRG-104hhrg41231.pdf The Unfunded Mandates Reform Act of 1995: One Year Later], Hearing Before the Subcomm. on Human Res. and Intergov’tal Relations of the H. Comm. on Gov’t Reform and Oversight, 105th Cong. (1996).<br />
*''Hearings on S. 1'' Before the Senate Budget Committee and the Senate Comm. Gov’tal Affairs, 104th Cong. (1999).<br />
*''Hearings on H.R. 5 before the House Rules'', 104th Cong. (1999).<br />
*[https://archives-democrats-rules.house.gov/archives/rules_tran_unfunded.htm 1995 Unfunded Mandates Reform Act—An Overview of Effectiveness and Opportunities for Enhancement], Hearing Before the Rules H. Subcomm. on Tech., 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109shrg21429/pdf/CHRG-109shrg21429.pdf Passing the Buck, A Review of the Unfunded Mandates Reform Act], Hearing Before the Subcomm. on Oversight of Gov’t Management, the Fed. Workforce, and the District of Columbia of the S. Comm. on Homeland Sec. and Gov’tal Affairs, 109th Cong. (2005).<br />
*''The Tenth Anniversary of the Unfunded Mandates Reform Act'', Hearing Before the H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67172/pdf/CHRG-112hhrg67172.pdf Unfunded Mandates and Regulatory Overreach], Hearing Before the Subcomm. on Tech., Info. Policy, Intergov’tal Relations and Procurement Reform of the Comm. on Oversight and Gov’t Reform, 112th Cong. (2011).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67619/pdf/CHRG-112hhrg67619.pdf Unfunded Mandates and Regulatory Overreach], Hearing Before the Subcomm. on Tech., Info. Policy, Intergov’tal Relations and Procurement Reform of the Comm. on Oversight and Gov't Reform, 112th Cong. (2011).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg70678/pdf/CHRG-112hhrg70678.pdf Unfunded Mandates, Regulatory Burdens and the Role of the Office of Information and Regulatory Affairs], Hearing Before the Subcomm. on Tech., Info. Policy, Intergov’tal Relations and Procurement Reform of the Comm. on Oversight and Gov’t Reform, 112th Cong. (2011).<br />
*Unfunded Mandates Information and Transparency Act of 2011, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt483/pdf/CRPT-112hrpt483-pt1.pdf H. Rep. No. 112-483] (2012).<br />
*Unfunded Mandates Information and Transparency Act of 2013, [https://www.govinfo.gov/content/pkg/CRPT-113hrpt352/pdf/CRPT-113hrpt352-pt1.pdf H. Rep. No. 113-352] (2014).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114shrg99989/pdf/CHRG-114shrg99989.pdf The Unfunded Mandates Reform Act: Opportunities for Improvement to Support State and Local Governments], Hearing Before Subcomm. on Regulatory Affairs and Fed. Mgmt. of the S. Comm. on Homeland Sec. and Gov’tal Affairs, 114th Cong. (2016) ([https://www.hsgac.senate.gov/hearings/the-unfunded-mandates-reform-act-opportunities-for-improvement-to-support-state-and-local-governments video]).<br />
</div><br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*Executive Order 13175, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO13175tribgovt.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on Unfunded Mandates====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Agency Compliance with Title II of Unfunded Mandates Reform Act of 1995, Report to Congress from the Director of OMB (Mar. 22, 1996). These are annual reports. The [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/umra1999final.pdf 4th Annual Report] was issued in October 1999.<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2001).<br />
*[http://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation, 2002 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2002).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions, 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2003).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform, 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2004).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis, 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2007).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2008).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2009).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2011).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2013).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2014).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2015).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (2015).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2019/12/2019-CATS-5885-REV_DOC-2017Cost_BenefitReport11_18_2019.docx.pdf 2017 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates and Reform Act] (2017).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2021/01/2018_2019_2020-OMB-Cost-Benefit-Report.pdf 2018, 2019, and 2020 Reports to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (2020).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memorandum for the Heads of Executive Departments and Agencies, and Independent Regulatory Agencies, M-94-1, ''Guidance for Implementing E.O. 12,875,'' ''Reduction of Unfunded Mandates'' (Jan. 11, 1994).<br />
*Memorandum for the Heads of Executive Departments and Agencies, M-95-09, [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/1995-1998/m95-09.pdf Guidance for Implementing Title II of S.1] (Mar. 31, 1995).<br />
*Memorandum for the Heads of Departments and Agencies, M-95-20, [https://www.gsa.gov/policy-regulations/policy/federal-advisory-committee-management/legislation-and-regulations/implementing-section-204-as-related-to-faca Guidelines and Instructions for Implementing Section 204, State, Local, and Tribal Government Input, of Title II of P.L. 104-4] (Sept. 29, 1995).<br />
</div><br />
<br />
===Congressional Budget Office Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.cbo.gov/publication/51335#section4 CBO’s Activities Under the Unfunded Mandates Reform Act].<br />
*[https://www.cbo.gov/sites/default/files/103rd-congress-1993-1994/reports/doc45.pdf Preliminary Analysis of Unfunded Federal Mandates and the Cost of the Safe Drinking Water Act](1994).<br />
*[https://www.cbo.gov/sites/default/files/105th-congress-1997-1998/reports/umra1st.pdf The Experience of the Congressional Budget Office During the First Year of the Unfunded Mandates Reform Act] (1997).<br />
*[https://www.cbo.gov/sites/default/files/109th-congress-2005-2006/reports/03-31-umra_4.pdf A Review of CBO’s Activities Under the Unfunded Mandates Reform Act, 1996 to 2005] (2006).<br />
*[https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/04-03-umra.pdf A Review of CBO’s Activities in 2006 Under the Unfunded Mandates Reform Act] (2007).<br />
*[https://www.cbo.gov/sites/default/files/110th-congress-2007-2008/reports/03-31-umra0.pdf A Review of CBO’s Activities in 2007 Under the Unfunded Mandates Reform Act] (2008).<br />
*[https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/reports/03-31-umra_1.pdf A Review of CBO’s Activities in 2008 Under the Unfunded Mandates Reform Act] (2009).<br />
*[https://www.cbo.gov/sites/default/files/111th-congress-2009-2010/reports/03-31-umra2.pdf A Review of CBO’s Activities in 2009 Under the Unfunded Mandates Reform Act] (2010).<br />
*[https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/03-31-umra.pdf A Review of CBO’s Activities in 2010 Under the Unfunded Mandates Reform Act] (2011).<br />
*[https://www.cbo.gov/sites/default/files/03-30-UMRA.pdf A Review of CBO’s Activities in 2011 Under the Unfunded Mandates Reform Act] (2012).<br />
*[https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/hr373LankfordLtr.pdf Input Regarding H.R. 373, the Unfunded Mandates Information and Transparency Act of 2011], Letter to the Hon. James Lankford (Mar. 30, 2012).<br />
*[https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/44032_UMRA.pdf A Review of CBO’s Activities in 2012 Under the Unfunded Mandates Reform Act] (2013).<br />
*[https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/reports/45209-UMRA.pdf A Review of CBO’s Activities in 2013 Under the Unfunded Mandates Reform Act] (2014).<br />
*[https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/50051-UMRA2_0.pdf A Review of CBO’s Activities in 2014 Under the Unfunded Mandates Reform Act] (2015).<br />
*[https://www.cbo.gov/publication/51335%22%20%5Ct%20%22_blank CBO’s Activities Under the Unfunded Mandates Reform Act] (2021).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Advisory Comm’n on Intergov’tal Relations, ''Federal Court Rulings Involving State, Local, and Tribal Governments Calendar Year 1994: A Report Prepared Under Section 304, Unfunded Mandates Reform Act of 1995'' (M-196) (1995).<br />
*Richard S. Beth, Cong. Research Serv., RL 98-48, ''Mandates Information Act: Implications for Congressional Action on Legislation Containing Private Sector Mandates'' (1998).<br />
*Gen. Accounting Office, GAO/GGD-98-30, [https://www.gao.gov/assets/230/225165.pdf Unfunded Mandates Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, A Report to the Senate Committee on Governmental Affairs] (1998).<br />
*Gen. Accounting Office, GAO-04-637, [https://www.gao.gov/new.items/d04637.pdf Unfunded Mandates: Analysis of Reform Act Coverage] (2004).<br />
*Gov’t Accountability Office, GAO-05-454, [http://www.gao.gov/new.items/d05454.pdf Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement] (2005).<br />
*Gov’t Accountability Office, GAO-11-385T, [https://www.gao.gov/assets/130/125488.pdf Federal Mandates: Few Rules Trigger Unfunded Mandates Reform Act] (2011).<br />
*Robert Jay Dilger & Natalie Keegan, Cong. Rsch. Serv., R40957, [https://crsreports.congress.gov/product/pdf/R/R40957 Unfunded Mandates Reform Act: History, Impact, and Issues] (2021).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Robert W. Adler, ''Unfunded Mandates and Fiscal Federalism: A Critique'', 50 Vand. L. Rev. 1137 (1997).<br />
*Cary Coglianese, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2005&context=aulr Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel H. Cole & Carol S. Comer, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1648&context=facpub Rhetoric, Reality, and the Law of Unfunded Federal Mandates], 8 Stan. L. & Pol’y Rev. 103 (1997).<br />
*David A. Dana, ''The Case for Unfunded Environmental Mandates'', 69 S. Cal. L. Rev. 1 (1995).<br />
*Denise D. Fort, Essay, [https://digitalrepository.unm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1815&context=nrj The Unfunded Mandates Reform Act of 1995: Where Will the New Federalism Take Environmental Policy?], 35 Nat. Resources J. 727 (1995).<br />
*Elizabeth Garrett, ''Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995'', 45 U. Kan. L. Rev. 1113 (1997).<br />
*Elizabeth Garrett, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1264&context=ndlr Framework Legislation and Federalism], 83 Notre Dame L. Rev. 1495 (2008).<br />
*Daniel S. Herzfeld, Comment, ''Accountability and the Nondelegation of Unfunded Mandates: A Public Choice Analysis of the Supreme Court’s Tenth Amendment Federalism Jurisprudence'', 7 Geo. Mason L. Rev. 419 (1999).<br />
*Makram B. Jaber, Comment, ''Unfunded Federal Mandates: An Issue of Federalism or a Brilliant Sound Bite'', 45 Emory L. J. 281 (1996).<br />
*Tracy A. Kaye, ''Show Me the Money: Congressional Limitations on State Tax Sovereignty'', 35 Harv. J. on Legis. 149 (1998).<br />
*Raymond W. Lawton & Bob Burns, ''Models of Cooperative Federalism for Telecommunications'', 6 Alb. L. J. Sci. & Tech. 71 (1996).<br />
*Susan E. Leckrone, Note, [http://ilj.law.indiana.edu/articles/71/71_4_Leckrone.pdf Turning Back the Clock: The Unfunded Mandates Reform Act of 1995 and Its Effective Repeal of Environmental Legislation], 71 Ind. L.J. 1029 (1996).<br />
*Eileen M. Luna, [https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1265&context=ailr The Impact of the Unfunded Mandates Reform Act of 1995 on Tribal Governments], 22 Am. Indian L. Rev. 445 (1998).<br />
*Russell A. Miller, [http://ilj.law.indiana.edu/articles/85/85_1_Miller.pdf Clinton, Ginsburg, and Centrist Federalism], 85 Ind. L.J. 225 (2010).<br />
*Robert M. M. Shaffer, Comment, ''Unfunded State Mandates and Local Governments'', 64 U. Cin. L. Rev. 1057 (1996).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Daniel E. Troy, ''The Unfunded Mandates Reform Act of 1995'', 49 Admin. L. Rev. 139 (1997).<br />
*Edward A. Zelinsky, ''The Unsolved Problem of the Unfunded Mandate'', 23 Ohio N. U. L. Rev. 741 (1997).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Unfunded Mandates Reform Act, <br />
<br />
Title 2 U.S. Code<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title2/chapter25&edition=prelim Chapter 25—Unfunded Mandates Reform]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1501&num=0&edition=prelim § 1501. Purposes]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1502&num=0&edition=prelim § 1502. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1503&num=0&edition=prelim § 1503. Exclusions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1531&num=0&edition=prelim § 1531. Regulatory process]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1532&num=0&edition=prelim § 1532. Statements to accompany significant regulatory actions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1533&num=0&edition=prelim § 1533. Small government agency plan]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1534&num=0&edition=prelim § 1534. State, local, and tribal government input]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1535&num=0&edition=prelim § 1535. Least burdensome option or explanation required]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1536&num=0&edition=prelim § 1536. Assistance to Congressional Budget Office]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1555&num=0&edition=prelim § 1555. “Federal mandate” defined]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1571&num=0&edition=prelim § 1571. Judicial review]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Rulemaking_Requirements_from_the_Executive_Office_of_the_President&diff=1692Rulemaking Requirements from the Executive Office of the President2023-08-15T21:49:53Z<p>MGluth: </p>
<hr />
<div>This section discusses the most significant presidential Executive Orders, Bulletins, and Memoranda, which pertain to the rulemaking process or federal regulation. Other executive orders and memoranda may be found in other sections, e.g., those relating to the [[Federal Advisory Committee Act]].<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)], [https://www.whitehouse.gov/omb/ Office of Management and Budget (OMB)]<br />
<br />
==Executive Orders==<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Executive Order 12372, [https://www.archives.gov/federal-register/codification/executive-order/12372.html Intergovernmental Review of Federal Programs], 47 Fed. Reg. 30959 (July 16, 1982).<br />
*Executive Order 12630, [https://www.archives.gov/federal-register/codification/executive-order/12630.html Governmental Actions and Interference with Constitutionally Protected Property Rights], 53 Fed. Reg. 8859 (Mar. 18, 1988).<br />
*Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 ( Oct. 4, 1993).<br />
*Executive Order 12889, [https://www.govinfo.gov/content/pkg/WCPD-1994-01-03/pdf/WCPD-1994-01-03-Pg2639.pdf Implementation of the North American Free Trade Agreement], 58 Fed. Reg. 69681 (Dec. 30, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations], 59 Fed. Reg. 7629 (Feb. 16, 1994).<br />
*Executive Order 12988, [https://www.govinfo.gov/content/pkg/WCPD-1996-02-12/pdf/WCPD-1996-02-12-Pg189.pdf Civil Justice Reform], 61 Fed. Reg. 4729 (Feb. 7, 1996).<br />
*Executive Order 13045, [https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Protection of Children from Environmental Health Risks and Safety Risks], 62 Fed. Reg. 19885 (Apr. 23, 1997).<br />
*Executive Order 13132, [https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Federalism], 64 Fed. Reg. 43255 (Aug. 10, 1999).<br />
*Executive Order 13175, [https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
*Executive Order 13211, [https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use], 66 Fed. Reg. 28355 (May 22, 2001).<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 16, 2002).<br />
*Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review], 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming Executive Order 12866).<br />
*Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], 76 Fed. Reg. 41587 (July 14, 2011).<br />
*Executive Order 13609, [https://www.govinfo.gov/content/pkg/FR-2012-05-04/pdf/2012-10968.pdf Promoting International Regulatory Cooperation], 77 Fed. Reg. 26413 (May 4, 2012).<br />
*Executive Order 13610, [https://www.govinfo.gov/content/pkg/FR-2012-05-14/pdf/2012-11798.pdf Identifying and Reducing Regulatory Burdens], 77 Fed. Reg. 28469 (May 14, 2012).<br />
*Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People], 80 Fed. Reg. 56356 (Sept. 18, 2015).<br />
*Executive Order 13725, [https://www.govinfo.gov/content/pkg/FR-2016-04-20/pdf/2016-09346.pdf Steps to Increase Competition and Better Inform Consumers and Works to Support Continued Growth of the American Economy], 81 Fed. Reg. 23417 (Apr. 20, 2016).<br />
*Executive Order 14094, [https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf Modernizing Regulatory Review], 88 Fed. Reg. 21,879 (Apr. 11, 2023).<br />
</div><br />
<br />
==Table of Executive Order Requirements==<br />
{| class="wikitable"<br />
|+<br />
!Executive Order (EO)<br />
!Date and Administration of Issue<br />
!Action Items<br />
!Does the EO Contain a Statement Regarding Applicability to Independent Agencies?<br />
|-<br />
|[https://www.archives.gov/federal-register/codification/executive-order/12630.html EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights]<br />
|1988 - Reagan<br />
|''General Principles''. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” <br />
<br />
<br />
''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.”<br />
<br />
''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.<br />
<br />
<br />
''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).<br />
<br />
<br />
''Ensuring Compliance.'' OMB and the Department of Justice are responsible for ensuring compliance with the EO.<br />
|No<br />
|-<br />
|[https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf EO 12866 - Regulatory Planning and Review]<br />
|1993 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12889.pdf EO 12889 - Implementation of the North American Free Trade Agreement]<br />
|1993 - Clinton<br />
|''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.”<br />
<br />
<br />
''Exceptions''<br />
<br />
#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)).<br />
#Perishable Goods. Technical regulations relating to perishable goods.<br />
#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.<br />
#Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection.<br />
<br />
''Definitions''<br />
<br />
#Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7).<br />
#Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7).<br />
|No<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf EO 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations]<br />
|1994 - Clinton<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1996-02-07/pdf/96-2755.pdf EO 12988 - Civil Justice Reform]<br />
|1996- Clinton<br />
|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.<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks]<br />
|1997 - Clinton<br />
|''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.”<br />
''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:<br />
<br />
#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.”<br />
#Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/pdf/99-20729.pdf EO 13132 - Federalism]<br />
|1999 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf EO 13175 - Consultation and Coordination with Indian Tribal Governments]<br />
|2000 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2001-05-22/pdf/01-13116.pdf EO 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use]<br />
|2001 - Bush<br />
|''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.<br />
<br />
<br />
''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. <br />
<br />
<br />
''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. <br />
<br />
<br />
''Publication.'' Agencies must publish the Statement or a summary in the related NPRM and final rule.<br />
|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 . . . ."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2002-08-16/pdf/02-21056.pdf EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking]<br />
|2002 - Bush<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf EO 13563 - Improving Regulation and Regulatory Review]<br />
|2011 - Obama<br />
|''General Principles.'' This EO supplements and reaffirms [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 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.<br />
<br />
<br />
''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.”<br />
<br />
<br />
''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.”<br />
<br />
<br />
''Flexible Approaches.'' Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.”<br />
<br />
<br />
''Objectivity with regard to scientific information.'' Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking.<br />
<br />
<br />
''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.”<br />
|Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review <nowiki>[EO] 12866</nowiki>]."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf EO 13579 - Regulation and Independent Regulatory Agencies]<br />
|2011 - Obama<br />
|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 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.”<br />
|Yes. The EO is entirely geared toward independent agencies.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-04/pdf/2012-10968.pdf EO 13609 - Promoting International Regulatory Cooperation]<br />
|2012 - Obama<br />
|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.<br />
|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.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf EO 13610 - Identifying and Reducing Regulatory Burdens]<br />
|2012 - Obama<br />
|Agencies are instructed to institutionalize regular reviews of their previously 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.<br />
|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)."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2016-04-20/pdf/2016-09346.pdf EO 13725 - Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy]<br />
|2016 - Obama<br />
|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. <br />
|Yes. See § 3(b) for relevant text: "Independent agencies are strongly encouraged to comply with the requirements of this order."<br />
|-<br />
|[https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ EO 14094 - Modernizing Regulatory Review]<br />
|2023 - Biden<br />
|Agencies should affirmatively promote public participation in rulemaking and proactively engage interested parties. Regulatory analysis should recognize distributive impacts and equity.<br />
|No.<br />
|}<br />
<br />
==Other White House Bulletins and Memoranda==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-119-1.pdf Federal Participation in the Development and Use of Voluntary Standards and in Conformity Assessment Activities] (1998).<br />
*[https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf Plain Language in Government Writing] (1998).<br />
*[https://obamawhitehouse.archives.gov/omb/inforeg_oira_review_process/ Presidential Review of Agency Rulemaking by OIRA] (2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf Circular No. A-4, New Guidelines for the Conduct of Regulatory Analysis] (2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf Circular A-4, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/CircularA94.pdf Circular A-94, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf Implementation of Modernizing Regulatory Review Executive Order] (Apr. 6, 2023).<br />
*M-05-03, [https://obamawhitehouse.archives.gov/omb/memoranda_fy2005_m05-03 Final Information Quality Bulletin for Peer Review] (2004).<br />
*[https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf Final Bulletin for Agency Good Guidance Practices] (2007).<br />
*M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf Updated Principles for Risk Analysis](2007).<br />
*M-19-14, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf Guidance on Compliance with the Congressional Review Act] (2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01866.pdf Modernizing Regulatory Review] (2021)<br />
</div><br />
<br />
==Overview==<br />
===History of Presidential Oversight of Rulemaking and Regulation===<br />
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. <br />
<br />
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.<br />
<br />
In 1974, President Ford issued an executive order requiring executive branch agencies to prepare an “inflation impact statement” for each “major” federal action. 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” rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to COWPS upon publication of the NPRM. COWPS would review the IIS and, in its discretion, offer informal criticism of the proposal or participate in the public proceedings on the rule. <br />
<br />
President Carter continued presidential review of agency rules by means of Executive Order 12044, ''Improving Government Regulations'', issued in 1978. Under the order, executive agencies were required to: (1) publish semi-annual agendas, describing and giving the legal bases for, any “significant” regulations under development by the agency; (2) establish procedures to identify “significant” rules, to evaluate their need, and to have the agency head assure that the “least burdensome of the acceptable alternatives” was proposed; and (3) prepare a “regulatory analysis” that examined the cost-effectiveness of alternative regulatory approaches for “major rules.”<br />
<br />
President Carter also established a Regulatory Analysis Review Group to review the regulatory analyses prepared for a limited number of proposed “major” rules and to submit comments on the proposed rules during the public comment period. He created another rulemaking review body, the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. These efforts to coordinate agency rulemaking were challenged unsuccessfully in several lawsuits.<br />
<br />
President Reagan acted quickly after taking office to increase control over executive branch rulemaking. On February 17, 1981, the President issued an executive order on federal regulations designed “to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” The new Executive Order 12291, [https://www.archives.gov/federal-register/codification/executive-order/12291.html Federal Regulation], replaced Executive Order 12044, which President Reagan said had “proven ineffective.” <br />
<br />
Executive Order 12291 contained both substantive requirements and procedural steps to be followed in the development and promulgation of new rules. The [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)] in OMB was given responsibility for implementing Executive Order 12291. OMB’s rulemaking review function is supplemented by the powers it was given in the [[Paperwork Reduction Act]] of 1980, by which Congress statutorily established OIRA to, among other things, review and approve or disapprove agency “information collection requests.”<br />
<br />
The Office of Legal Counsel in the U.S. Department of Justice issued an [https://www.justice.gov/file/22586/download opinion] supporting the validity of Executive Order 12291. The opinion stated that the President’s authority to issue the order was based on his constitutional power to “take care that the laws be faithfully executed.” While concluding that any inquiry into Congressional intent in enacting specific rulemaking statutes “will usually support the legality of presidential supervision of rulemaking by Executive Branch agencies,” the opinion stated that presidential supervision of agency rulemaking “is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official.”<br />
<br />
Despite criticism of this new form of presidential review, President Reagan began his second term by expanding the program through Executive Order 12498, [https://www.archives.gov/federal-register/codification/executive-order/12498.html Regulatory Planning Process], which established a “regulatory planning process” with the purpose of helping to “ensure that each major step in the process of rule development is consistent with Administration policy.” <br />
<br />
According to OMB, the problem with regulatory review under Executive Order 12291 was that such review “often came late in the regulatory process, after huge investments of agency time and resources, and often after agency staff commitments to constituents had made it extremely difficult to consider any legally acceptable, but previously ignored, regulatory alternative.” This resulted, OMB said, in the “bureaucracy often present[ing] agency heads with faits accompli.” <br />
<br />
Executive Order 12498’s regulatory planning process was designed to avoid this problem. Under this procedure, the head of each agency was required to determine at the beginning of the regulatory process whether a proposed regulatory venture was “consistent with the goals of the Administration.” At the beginning of the year, Agency heads were to develop a plan for managing the agency’s most significant regulatory actions. OMB then reviewed the plan for consistency with the administration’s program and published the coordinated agency plans in a government-wide document. This document, entitled “Regulatory Program of the United States Government,” governed more than 20 major rulemaking agencies and was published each year during the second Reagan term and the Bush administration to inform Congress and the public of the government’s regulatory plans.<br />
<br />
President Reagan, in 1987 and 1988, issued three additional executive orders, dealing with federalism, interference with property rights (which is still in effect), and the family. OMB was given a role in ensuring coordination of regulatory policy in these areas. President Bush basically continued the program of presidential review of agency rulemaking established by President Reagan, although due to congressional opposition to OIRA actions, President Bush’s nominee to head OIRA was not confirmed. To counter this weakening of OIRA’s authority, President Bush created the Council on Competitiveness, headed by Vice President Quayle, and gave it authority to intervene in major agency rulemakings. Several of the Council’s interventions provoked intense criticisms leading up to the 1992 elections.<br />
<br />
===The Clinton Executive Order—Executive Order 12866===<br />
With the election of President Clinton, one of his first actions was an attempt to reestablish some bipartisan consensus on rulemaking review. His nominee as OIRA Administrator was the first subcabinet nominee to be appointed. Following the example of the Reagan Administration, President Clinton then set out to redraft the extant Executive Order and produced Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], on September 30, 1993. This Executive Order, which remains operative, carries over many of the principles of Executive Order 12291 and Executive Order 12498 and made some significant modifications that simplified the process, made it more selective, and introduced more transparency into the OMB/agency consultations. In drafting this Executive Order, the Clinton Administration followed many of the suggestions in ACUS [https://www.acus.gov/sites/default/files/documents/88-9.pdf Recommendation 88-9]. <br />
<br />
The Executive Order begins with a lengthy “Statement of Regulatory Philosophy and Principles,” which are quite similar to those in Executive Order 12291 except that it specifies that measurement of costs and benefits should include both quantifiable and qualitative measures. As with previous Orders, Executive Order 12866 retains the traditional (since 1978) level of $100 million annual effect on the economy for those major rules (now referred to as “economically significant” rules) that must be accompanied by cost-benefit assessments when forwarded to OIRA as proposed and final rules.<br />
<br />
Executive Order 12866 also retains the OIRA review process for other rules, although it only requires that “significant regulatory actions” be subject to review. This includes those $100 million rules plus others that have material adverse effects on “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” It also includes rules that may materially alter the budgetary impact of benefit programs or the rights of recipients, that raise “novel legal or policy issues,” or are inconsistent or interfere with actions taken by another agency. The process established for identifying such “significant regulatory actions” relies on agency identification of them in the first instance, vetted by OIRA. Rules that are not so identified may be issued without OIRA review. This selectivity streamlined the review process considerably and made it possible to include, for the first time, a deadline (of 90 days, with one 30-day extension allowed) for completion of OIRA review. In the event of an unresolved dispute between OIRA and the agency, the Vice President is directed to make the decision (or recommend one to the President).<br />
<br />
The review process set forth in the Executive Order made significant improvements in transparency. Following an ACUS recommendation closely, it provides that after the agency has concluded its rulemaking it should make available to the public all submissions to OIRA and identify all changes made in the rule, noting those made at the behest of OIRA. In addition, OIRA, for its part, must regularize the way it receives any outside communications concerning an agency rule that is subject to review. Only the Administrator or her designee may receive such communications. OIRA must forward any such communications to the agency within ten days, invite agency officials to any meetings held with outsiders, and maintain a public log of all such contacts. At the end of the proceeding OIRA must also make available all documents exchanged with the agency.<br />
<br />
In place of the Reagan Executive Order 12498 on regulatory planning, the Clinton Order establishes its own yearly planning mechanism. It continues the semiannual publication of the [https://www.reginfo.gov/public/do/eAgendaMain Unified Agenda of Regulatory and Deregulatory Actions], which lists all proposed, pending, and completed regulatory and deregulatory actions. And it requires that the October Agenda contain each agency’s annual Regulatory Plans, which must be approved personally by the agency head. These plans must be forwarded to OIRA (and then on to affected agencies, the Vice President and a group of named high-level White House Advisors) by June 1 of each year. The plans are supposed to also include agency determinations on which existing rules are to be reviewed and reconsidered during the ensuing year and “preliminary estimates of the anticipated costs and benefits” of each rule planned for that calendar year. These actions do not represent any sharp break from the practices of previous administrations. However, Executive Order 12866 is a departure in one regard—for the first time the independent regulatory agencies are specifically directed to comply with the planning and agenda provisions (though not with the rule-review process).<br />
<br />
The Clinton Executive Order was generally well received by most observers of the regulatory scene. Its basic approach has remained fundamentally unchanged since its issuance, and OIRA has worked out a stable and workable relationship with the agencies in administering it. The once rather vibrant legal and policy debate over the pros and cons of presidential review has gradually evolved into a fairly broad agreement that it is legal and, if properly administered, is essential to effective executive branch management. Nevertheless, there has been some serious criticism of OIRA’s failure to meet the deadlines set in the Order. <br />
<br />
President Clinton also issued a [https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf presidential directive on plain language] and number of other executive orders that remain in effect concerning: environmental justice in minority populations and low-income populations ([https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO12898envjustice.pdf Executive Order 12898]), civil justice reform ([https://www.govinfo.gov/content/pkg/FR-1996-02-07/pdf/96-2755.pdf Executive Order 12988]), protection of children from environmental risks ([https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Executive Order 13045]), federalism ([https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Executive Order 13132]), and consultation with Indian Tribal Governments ([https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Executive Order 13175]).<br />
<br />
President Bush continued the use of Executive Order 12866, although he did make several significant changes. In 2002, he made some small changes in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review], basically removing the Vice President from the process. In January 2007, in Executive Order 13422, [https://www.govinfo.gov/content/pkg/FR-2007-01-23/pdf/07-293.pdf Further Amendment to Executive Order 12866 on Regulatory Planning and Review], he made more fundamental changes. Most significantly he added a requirement that “significant guidance documents” also be reviewed by OIRA in a way similar to significant regulatory actions. He also required that agencies identify in writing specific “market failures” that necessitate a rulemaking, that agency Regulatory Policy Officers be presidential appointees, that these officers must approve the Regulatory Plan, that aggregate costs and benefits for all rules must be included in the Regulatory Plan, and that agencies consider whether to use “formal” (“on the record”) rulemaking for “complex determinations.” However, as mentioned below, President Obama, upon assuming office, revoked the Bush changes and reinstated the original Clinton order. However, by later memorandum, the requirement that significant guidance documents be reviewed by OIRA was reinstated.<br />
<br />
OIRA did issue a [https://georgewbush-whitehouse.archives.gov/omb/inforeg/oira_review-process.html memorandum] in September 2001 putting its own stamp on the Executive Order 12866 process. The memorandum describes the “general principles and procedures that will be applied by OMB in the implementation of Executive Order 12866 and related statutory and executive authority.”<br />
<br />
Significantly, during the Bush Administration, OIRA also announced several new initiatives in its review process. First, it made extensive use of its website to publish its guidelines and other information pertaining to its review process and specific rule reviews. This continues today. Second, it began the practice of issuing public “return letters” that send rules back to the agency for reconsideration, “review letters” that comment on aspects of a particular rule review, and “prompt letters,” which are sent on OMB’s initiative and contain suggestions for new or stronger regulations. While these letters are still posted on [https://www.reginfo.gov/public/do/eoReturnLetters reginfo.gov], the Obama and the Trump Administrations have made little use of this practice. <br />
<br />
More importantly, during the Bush Administration, OMB issued four far-reaching documents affecting the regulatory process that remain in effect today. In 2003 it issued a revised [https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/ OMB Circular A-4], which provides guidance on the development of regulatory analyses. OMB also issued a more far-reaching and controversial [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf Peer Review Bulletin] in December 2004, which requires administrative agencies to conduct a peer review on all “influential regulatory information that the agency intends to disseminate.” Finally, in 2007, OMB issued an important new government-wide [https://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/E7-1066.pdf Bulletin on Good Guidance Practices.] OMB also (along with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy]) issued a set of [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf#:~:text=In%201995%2C%20an%20interagency%20working%20group%2C%20co-chaired%20by,Information%20and%20Regulatory%20Affairs%20%28OIRA%29%2C%20remain%20valid%20today.f Updated Principles for Risk Analysis]. In so doing it declined to finalize a Proposed Risk Assessment Bulletin that the two agencies had issued in January 2006, in favor of updating the Clinton Administration’s Principles issued in 1995. Finally, President Bush issued two other executive orders concerning regulations that remain in effect today: (1) analysis of adverse effects on energy supply, distribution, or use ([https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Executive Order 13211]) and (2) proper consideration of small entities in agency rulemaking ([https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Executive Order 13272]). <br />
<br />
===Developments in the Obama Administration===<br />
Shortly after taking office, President Obama revoked the Bush Amendments to Executive Order 12866 and directed the Director of OMB, in consultation with regulatory agencies, to produce a set of recommendations for a new executive order on federal regulatory review within 100 days, followed by an unusual request for public comments on the same subject. Almost 200 public comments were received. <br />
<br />
After about a year of internal consideration, the White House finally settled on its approach to OMB review—basically to reaffirm Executive Order 12866—with Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review] on January 18, 2011. In Section 1(b), the Order stated: “This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.”<br />
<br />
It did contain a few new mandates and points of emphasis. Most notably, agencies were urged (as appropriate and within legal constraints) to (1) consider “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts”; (2) “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”; (3) “provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded”; (4) for proposed rules, provide “an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings”; (5) seek public input from affected persons “[b]efore issuing a notice of proposed rulemaking”; (6) “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice”; (7) “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned”; and (8) “[w]ithin 120 days of the date of this order, . . . develop and submit to [OIRA] a preliminary plan” for periodically reviewing “its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” <br />
<br />
The one action mandate in the new Executive Order was for agencies to develop plans for retrospective review of their existing regulations. On May 26, 2011, the OIRA Administrator announced the results of this effort. On July 11, 2011, President Obama issued Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], which extended the terms of Executive Order 13563 to independent regulatory agencies. On September 15, 2015, President Obama issued Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People]. Noting the value of insights from behavioral science to improve the “effectiveness and efficiency of Government.”<br />
<br />
===Developments in the Trump Administration===<br />
Shortly after taking office, President Trump issued Executive Order 13771, [https://www.govinfo.gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf Reducing Regulation and Controlling Regulatory Costs,] which requires agencies to identify at least two regulations to be repealed for every proposed or promulgated regulation. 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. The order directed the Director of OMB to provide agency heads with guidance addressing the processes for measuring regulatory costs, the costs of existing regulations, what qualifies as new and offsetting regulations, and situations that would require waivers of the order’s requirements. OIRA issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/M-17-21-OMB.pdf#:~:text=This%20guidance%2C%20in%20the%20form%20of%20Questions%20and,Regulatio%20ns.%20go%20v%20in%20docket%20ID%20OMB-2017-0002. Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs”] to assist agencies in carrying out these requirements.<br />
<br />
President Trump also issued Executive Order 13777, [https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf Enforcing the Regulatory Reform Agenda]. This order requires the head of each agency to designate an official as its Regulatory Reform Officer (RRO) who would implement initiatives and policies including Executive Order 13771, Executive Order 12866, and Section 6 of Executive Order 13563 regarding retrospective review. All agencies must also form a Regulatory Reform Task Force made up of the RRO, the Regulatory Policy Officer, a representative from the central policy office, and three senior agency officials if the agency is listed in 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 901(b)(1)] (the executive departments, EPA, and NASA), which “shall evaluate existing regulations . . . and make recommendations to the agency head regarding their repeal, replacement, or modification.” In making these determinations, the task forces should focus on regulations that (1) “eliminate jobs, or inhibit job creation;” (2) “are outdated, unnecessary, or ineffective;” (3) “impose costs that exceed benefits;” (4) “create serious inconsistency or otherwise interfere with regulatory initiatives and policies;” (5) “are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001, . . . in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or” (6) “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” The Executive Order also requires agency heads to prioritize regulations that the Regulatory Reform Task Force identifies as outdated, unnecessary, or ineffective when implementing regulatory offsets under Executive Order 13771.<br />
<br />
Finally, President Trump issued Executive Order 13783, [https://www.govinfo.gov/content/pkg/FR-2017-03-31/pdf/2017-06576.pdf Promoting Energy Independence and Economic Growth,] which directs agencies to review regulations that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” This order also revoked Executive Order 13653, [https://www.govinfo.gov/content/pkg/FR-2013-11-06/pdf/2013-26785.pdf Preparing the United States for the Impact of Climate Change], and memoranda under the Obama Administration related to climate change.<br />
<br />
===Developments in the Biden Administration===<br />
Within his first two months in office, President Biden rescinded several of President Trump’s executive orders related to the rulemaking process. In addition, President Biden issued a memorandum titled Modernizing Regulatory Review. This memorandum explicitly reaffirms Executive Orders 12,866 and 13,563. Additionally, it directs the OMB Director to work with agencies to produce a set of recommendations that improves and modernizes regulatory review. The memorandum specifies that these recommendations should include concrete suggestions on how the regulatory review process can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Furthermore, the memorandum specifies that the recommendations should, among other actions, include proposed reforms to Circular A-4 to promote these goals; suggest procedures that take into account distributional impacts in regulatory analyses; propose how OIRA can partner with agencies to “explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits”; and determine an appropriate approach to the review of guidance documents.<br />
<br />
On April 6, 2023, President Biden issued Executive Order 14094, [https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ Modernizing Regulatory Review], which reaffirmed and amended Executive Order 12,866 § 3(f)’s definition of “significant regulatory action” to require OIRA review for rulemakings having an annual effect on the economy of $200 million or more. It also reaffirmed the Biden Administration’s commitment to distributive analysis and equity, as well as proactive public engagement in rulemaking. In addition to the Executive Order, the Biden Administration also issued revisions to Circulars [https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf A-4] and [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A94/a094.pdf A-94] for public comment, as well as a [https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf memorandum] regarding implementation of the Executive Order. On July 19, 2023, OMB issued a [https://www.whitehouse.gov/wp-content/uploads/2023/07/Broadening-Public-Participation-and-Community-Engagement-in-the-Regulatory-Process.pdf memorandum] for the heads of executive departments and agencies providing guidance for how to implement Executive Order 14094.<br />
<br />
==Bibliography==<br />
===Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg33312/pdf/CHRG-110hhrg33312.pdf Amending Executive Order 12866: Good Governance or Regulatory Usurpation?], Hearing Before Subcomm. on Commercial and Admin. Law, H. Comm. of the Judiciary, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg86439/pdf/CHRG-108hhrg86439.pdf How to Improve Regulatory Accounting: Costs, Benefits and Impacts of Federal Regulations], Hearing Before Subcomm. on Energy Policy, Nat. Res. and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004) (statement of John D. Graham, Administrator of OIRA).<br />
*OIRA Insight, Reform, and Accountability Act, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt19/pdf/CRPT-115hrpt19-pt1.pdf H.R. Rep. No. 115-19] (2017).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg20632/pdf/CHRG-114hhrg20632.pdf Assessing the Obama Years: OIRA and Regulatory Impacts on Jobs, Wages and Economic Recovery], Hearing Before Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2016) ([https://judiciary.house.gov/committee-activity/hearings/assessing-the-obama-years-oira-and-regulatory-impacts-on-jobs-wages-and video]).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26026/pdf/CHRG-114hhrg26026.pdf Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking], Hearing Before Subcomm. on Health Care, Benefits and Admin. Rules & Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/challenges-facing-oira-ensuring-transparency-effective-rulemaking/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82203/pdf/CHRG-113hhrg82203.pdf Reducing Red Tape: The New OIRA Administrator’s Perspective], Hearing Before H. Comm. on Small Bus., 113th Cong. (2013).<br />
<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on the Costs and Benefits of Regulations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Report to Congress on the Costs and Benefits of Federal Regulations (Sept. 30, 1997). Notice of availability of draft report and request for comments, 62 Fed. Reg. 39352 (July 22, 1997).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/costbenefitreport1998.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (January 1999). Notice of availability of draft report and request for comments, 63 Fed. Reg. 44034 (Aug. 17, 1998), extended 63 Fed. Reg. 49935 (Sept. 18, 1998).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2000fedreg-report.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (June 2000). Notice of availability of draft report and request for comments, 65 Fed. Reg. 1296 (Jan. 7, 2000); extended 65 Fed. Reg. 4447 (Jan. 27, 2000) and 65 Fed. Reg. 7198 (Feb. 7, 2000).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2001). Notice of availability of draft report and request for comments, 66 Fed. Reg. 22041 (May 2, 2001); extended 66 Fed. Reg. 34963 (July 2, 2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2002). Notice of availability of draft report and request for comments, 67 Fed. Reg. 15014 (Mar. 28, 2002).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (September 2003). Notice of availability of draft report and request for comments, 68 Fed. Reg. 15772 (Apr. 1, 2003).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2004). Notice of availability of draft report and request for comments, 69 Fed. Reg. 7987 (Feb. 20, 2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2005). Notice of availability of draft report and request for comments, 70 Fed. Reg. 14735 (Mar. 23, 2005).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2007). Notice of availability of draft report and request for comments, 71 Fed. Reg. 19213 (Apr. 13, 2006).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2008). Notice of availability of draft report and request for comments, 72 Fed. Reg. 11061 (Mar. 12, 2007).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2009). Notice of availability of draft report and request for comments, 73 Fed. Reg. 55169 (Sept. 24, 2008).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Jan. 27, 2010). Notice of availability of draft report and request for comments, 74 Fed. Reg. 48101 (Sept. 21, 2009).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (July 2010). Notice of availability of draft report and request for comments, 75 Fed. Reg. 22630 (Apr. 29, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2011). Notice of availability of draft report and request for comments, 76 Fed. Reg. 18260 (Apr. 1, 2011).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (April 2013). Notice of availability of draft report and request for comments, 77 Fed. Reg. 22003 (Apr. 12, 2012).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (May 2014). Notice of availability of draft report and request for comments, 78 Fed. Reg. 29780 (May. 21, 2013).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 15, 2015). Notice of availability of draft report and request for comments, 72 Fed. Reg. 37776 (July 2, 2014).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Mar. 10, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf Draft 2016 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/12/draft_2017_cost_benefit_report.pdf 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Feb. 23, 2018).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2019/12/2019-CATS-5885-REV_DOC-2017Cost_BenefitReport11_18_2019.docx.pdf 2017 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 9, 2019). <br />
*[https://www.whitehouse.gov/wp-content/uploads/2019/12/2019-CATS-5899-REV_DOC-Draft2018_2019_2020Cost_BenefitReport11_20_2019.pdf 2018, 2019 and 2020 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2019).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2021/01/2018_2019_2020-OMB-Cost-Benefit-Report.pdf 2018, 2019, and 2020 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act]. <br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Program of the United States Government'' (1987-1988) (and through 1990-91).<br />
*''Report on Executive Order No. 12866'', 59 Fed. Reg. 24276 (May 10, 1994).<br />
*''More Benefits Fewer Burdens—Creating a Regulatory System that Works For the American People'', A Report to the President on the Third Anniversary of Executive Order 12866 (1996).<br />
</div><br />
<br />
===ACUS Documents===<br />
====Recommendations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*88-9 [https://www.acus.gov/sites/default/files/documents/88-9.pdf Presidential Review of Agency Rulemaking]<br />
*93-4 [https://www.acus.gov/sites/default/files/documents/93-4.pdf Improving the Environment for Agency Rulemaking]<br />
*95-3 [https://www.acus.gov/sites/default/files/documents/95-3.pdf Review of Existing Agency Regulations]<br />
*2011-6 [https://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf International Regulatory Cooperation]<br />
*2012-5 [https://www.acus.gov/sites/default/files/Final-Recommendation-2012-5-Improving-Agency-Coordination.pdf Improving Coordination of Related Agency Responsibilities]<br />
*2013-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202013-2%20%28Benefit-Cost%20Analysis%29_0.pdf Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%25202014-5%2520%2528Retrospective%2520Review%2529_1.pdf Retrospective Review of Agency Rules]<br />
*2015-1 [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Recommendation%20FINAL_0.pdf Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2017-3 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-3%20%28Plain%20Language%20in%20Regulatory%20Drafting%29.pdf Plain Language in Regulatory Drafting]<br />
*2017-6 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-6%20%28Learning%20from%20Regulatory%20Experience%29_0.pdf Learning from Regulatory Experience]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
</div><br />
===CRS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Maeve P. Carey, RL32240, ''The Federal Rulemaking Process: An Overview'' (June 17, 2013).<br />
*Maeve P. Carey, R41974, ''Cost-Benefit and Other Analysis Requirements in the Rulemaking Process'' (Dec. 9, 2014).<br />
*Vivian S. Chu & Daniel T. Shedd, R42720, ''Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues'' (Sept. 10, 2012).<br />
*Vivian S. Chu & Daniel T. Shedd, RS20846, ''Executive Orders: Issuance, Modification, and Revocation'' (Apr. 6, 2014).<br />
*Curtis Copeland, RL33862, ''Changes to the OMB Regulatory Review Process by Executive Order 13422'' (Jan. 3, 2008).<br />
*Curtis Copeland, RL32397, ''Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs'' (June 9, 2009).<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/RCED84-62, [https://www.gao.gov/assets/150/141408.pdf Cost-Benefit Analysis Can Be Useful in Assessing Environmental Regulations, Despite Limitations] (1984).<br />
*T-GGD-99-93, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-99-93/pdf/GAOREPORTS-T-GGD-99-93.pdf Federalism: Implementation of Executive Order 12612 in the Rulemaking Process] (1999).<br />
*GAO/T-GGD-99-131, [https://www.gao.gov/assets/110/108000.pdf Federalism: Previous Initiatives Have Had Little Effect on Agency Rulemaking] (1999).<br />
*GAO/ GGD-99-59, [https://www.gao.gov/assets/160/156562.pdf Regulatory Accounting: Analysis of OMB’s Reports on the Costs and Benefits of Federal Regulation] (1999).<br />
*GAO/GGD-94-28, [https://www.gao.gov/assets/220/218925.pdf Regulatory Burden: Recent Studies, Industry Issues, and Agency Initiatives] (1993).<br />
*GAO/GGD-97-2, [https://www.gao.gov/assets/160/155661.pdf Regulatory Burden: Measurement Challenges and Concerns Raised by Selected Companies] (1996).<br />
*GAO/RCED-98-142, [https://www.gao.gov/assets/160/156173.pdf Regulatory Reform: Agencies Could Improve Development, Documentation, and Clarity of Regulatory Economic Analysis] (1998).<br />
*GAO/GGD-98-31, [https://www.gao.gov/assets/230/225071.pdf Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always Clearly Documented] (1998).<br />
*GAO/ PEMD-95-18BR, [https://www.gao.gov/assets/80/78970.pdf Regulatory Reform: Information on Costs, Cost-Effectiveness, and Mandated Deadlines for Regulations] (1995).<br />
*GAO-03-1015, [https://www.gao.gov/assets/240/239832.pdf Regulatory Takings: Implementation of Executive Order on Government Actions Affecting Private Property Use] (2003).<br />
*GAO-03-929, [https://www.gao.gov/assets/160/157476.pdf Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews] (2003).<br />
*GAO-05-289, [https://www.gao.gov/assets/250/247171.pdf Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules] (2005).<br />
*GAO-09-205, [https://www.gao.gov/assets/290/288538.pdf Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews] (2009).<br />
*GAO-13-588, [https://www.gao.gov/assets/660/656488.pdf International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency Guidance] (2013).<br />
*GAO-14-423T, [https://www.gao.gov/assets/670/661540.pdf Federal Rulemaking: Regulatory Review Processes Could Be Enhanced] (2014).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-14-519, [https://www.gao.gov/assets/670/664872.pdf Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses] (2014).<br />
*GAO-14-714, [https://www.gao.gov/assets/670/665745.pdf Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent] (2014).<br />
*GAO-15-368, [https://www.gao.gov/assets/670/669688.pdf Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices] (2015).<br />
*GAO-15-718, [https://www.gao.gov/assets/680/672572.pdf Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees] (2015).<br />
*GAO-16-720, [https://www.gao.gov/assets/680/679518.pdf Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance] (2016).<br />
*GAO-18-22, [https://www.gao.gov/assets/690/687875.pdf Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions] (2017).<br />
*GAO-18-183, [https://www.gao.gov/assets/700/690624.pdf Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance During and at the End of Presidents’ Terms] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Office of Legal Counsel, ''Op. on Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498''.<br />
*Office of Legal Counsel, Memorandum from Larry L. Simms, Acting Assistant Attorney General, [https://www.justice.gov/file/22586/download Proposed Executive Order Entitled “Federal Regulation,”] 5 Op. O.L.C. 59 (1981).<br />
*Council on Envtl. Quality, [https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).<br />
*Envtl. Protection Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/contsetc.pdf The Benefits and Costs of the Clean Air Act, 1970-1990]—Draft Report for Congress (April 1997).<br />
*Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, [https://ws680.nist.gov/publication/get_pdf.cfm?pub_id=200118 Tenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment] (2007).<br />
*Office of the Vice President, ''Creating a Government That Works Better and Costs Less, Improving Regulatory Systems'', National Performance Review (1993).<br />
*Statement #18, [https://www.acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf Improving the Timeliness of OIRA Regulatory Review], 78 Fed. Reg. 76275 (Dec. 17, 2013).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''OIRA Thirtieth Anniversary Conference'', 63 Admin. L. Rev. (special ed.) (2011).<br />
*ABA Section of Admin. Law & Regulatory Practice, [https://www.americanbar.org/content/dam/aba/administrative/administrative_law/Final%20POTUS%20Report%2010-26-16.authcheckdam.pdf Report: Improving the Administrative Process: A Report to the President-Elect of the United] (2016), 69 Admin. L. Rev. 205 (2017).<br />
*Rebecca Adams, ''Regulating the Rule-Makers: John Graham at OIRA'', CQ Weekly 520 (Feb. 23, 2002).<br />
*Joseph E. Aldy, [https://www.acus.gov/sites/default/files/documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy] (Nov. 17, 2014) (report to ACUS).<br />
*Robert A. Anthony, ''Executive Order, OMB Bulletin Focus on Guidances'', 32 Admin. L. & Reg. News 10, Spring 2007.<br />
*William D. Araiza, ''Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking'', 54 Admin. L. Rev. 611 (2002).<br />
*Donald R. Arbuckle, ''Obscure But Powerful: Who Are Those Guys?'', 63 Admin. L. Rev. 131 (special ed.) (2011).<br />
*Nicholas Bagley & Richard L. Revesz, ''Centralized Oversight of the Regulatory State'', 106 Colum. L. Rev. 1260 (2006).<br />
*Stephen J. Balla, Jennifer M. Deets, & Forrest Maltzman, ''Outside Communications and OIRA Review of Agency Regulations'', 63 Admin. L. Rev. 149 (special ed.) (2011).<br />
*Rachel Bayefsky, Note, [https://www.yalelawjournal.org/pdf/1732.Bayefsky.1782_u52fptmb.pdf Dignity as a Value in Agency Cost-Benefit Analysis], 123 Yale L.J. 1732 (2014).<br />
*Josh Blackman, [https://illinoislawreview.org/wp-content/uploads/2018/03/Blackman.pdf Presidential Maladministration], 2018 U. Ill. L. Rev. 397 (2018).<br />
*James F. Blumstein, ''Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues'', 51 Duke L. J. 851 (2001).<br />
*Alexander Bolton, Rachel Augustine Potter, & Sharece Thrower, ''Organizational Capacity, Regulatory Review, and the Limits of Political Control'', 32 J. L. Econ. & Org. 242 (2016).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1490&context=mlr Inside the Administrative State: A Critical Look at the Practice of Presidential Control], 105 Mich. L. Rev. 47 (2006).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1445&context=mlr Legitimacy, Selectivity, and the Disunitary Executive: A Reply to Sally Katzen], 105 Mich. L. Rev. 1511 (2007).<br />
*Harold H. Bruff, ''Presidential Management of Agency Rulemaking'', 57 Geo. Wash. L. Rev. 533 (1989).<br />
*Reeve T. Bull, ''Building a Framework for Governance: Retrospective Review and Rulemaking Petitions'', 67 Admin. L. Rev. 265 (2015).<br />
*Ming H. Chen, ''Administrator-in-Chief: The President and Executive Action in Immigration Law'', 69 Admin. L. Rev. 347 (2017).<br />
*John C. Coates IV, [https://www.yalelawjournal.org/pdf/a.882.Coates.1011_owe353wf.pdf Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications], 124 Yale L.J. 882 (2015).<br />
*Cary Coglianese, [http://yalejreg.com/moving-forward-with-regulatory-lookback/ Moving Forward with Regulatory Lookback], 30 Yale J. on Reg. Online 57 (2013).<br />
*Cary Coglianese, ''The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State'', 69 Admin. L. Rev. 43 (2017).<br />
*Cary Coglianese, [http://www.aulawreview.org/au_law_review/wp-content/uploads/2018/02/02-Coglianese_67AMULREV733.pdf Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel Cole, [https://www.law.ua.edu/pubs/lrarticles/Volume%2064/Issue%201/2%20Cole%2055%20-%2089.pdf Law, Politics, and Cost-Benefit Analysis], 64 Ala. L. Rev. 55 (2012).<br />
*John Conyers, Jr., Henry C. Johnson, Jr., & David N. Cicilline, [https://docs.house.gov/meetings/JU/JU05/20170928/106432/HHRG-115-JU05-20170928-SD001.pdf The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration], 54 Harv. J. on Legis. 365 (2017).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Final%20BCA%20Report%204-30-13.pdf Economic Analysis and Independent Regulatory Agencies] (Apr. 30, 2013) (report to ACUS).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Report%20CIRCULATED%20to%20Committees%20on%2010-21-13.pdf Length of Rule Reviews by the Office of Information and Regulatory Affairs] (Oct. 7, 2013) (report to ACUS).<br />
*Curtis Copeland, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2208&context=ulj The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking], 33 Fordham Urb. L.J. 1257 (2006).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Draft%20Report%20041315%20FINAL_0.pdf The Unified Agenda: Proposals for Reform] (Apr. 13, 2015) (report to ACUS).<br />
*Robin Kundis Craig, ''The Bush Administration’s Use and Abuse of Rulemaking. Part I: The Rise of OIRA'', 28 Admin. & Reg. L. News 8 (Summer 2003).<br />
*Stephen Croley, ''White House Review of Agency Rulemaking: An Empirical Investigation'', 70 U. Chi. L. Rev. 821 (2003).<br />
*Nestor M. Davidson &. Ethan J. Lieb, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1562&context=faculty_scholarship Regleprudence—At OIRA and Beyond], 103 Geo. L.J. 259 (2015).<br />
*Christopher C. DeMuth & Douglas H. Ginsburg, ''White House Review of Agency Rulemaking'', 99 Harv. L. Rev. 1075 (1986).<br />
*Christopher DeMuth, ''OIRA at Thirty'', 63 Admin. L. Rev. 15 (special ed.) (2011).<br />
*Caroline DeWitt, Comment, ''The Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review'', 6 Admin. L. J. Am. U. 759 (1993).<br />
*Susan E. Dudley, ''Observations on OIRA’s Thirtieth Anniversary'', 63 Admin. L. Rev. 113 (special ed.) (2011).<br />
*Susan E. Dudley, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1006&context=caselrev Improving Regulatory Accountability: Lessons From the Past and Prospects for the Future], 65 Case W. Res. L. Rev. 1027 (2015).<br />
*E. Donald Elliott, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4231&context=lcp TQM’ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It], 57 Law & Contemp. Probs. 167 (1994).<br />
*Blake Emerson & Cheryl Blake, [https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20Drafting_Final%20Report.pdf Plain Language in Regulatory Drafting] (Dec. 8, 2017) (report to ACUS).<br />
*Jaclyn L. Falk, Comment, [https://cpb-us-w2.wpmucdn.com/usfblogs.usfca.edu/dist/7/272/files/2014/09/The-Behind-Closed-Door-Policy-Executive-Influence-in-the-Environmental-Protection-Agencys-Informal-Rulemaking.pdf The Behind Closed Door Policy: Executive Influence in the Environmental Protection Agency’s Informal Rulemaking], 47 U.S.F. L. Rev. 593 (2013).<br />
*Cynthia R. Farina, ''Undoing the New Deal Through the New Presidentialism'', 22 Harv. J. L. & Pub. Pol’y 227 (1998).<br />
*Scott Farrow, ''Improving Regulatory Performance: Does Executive Office Oversight Matter?'' (2001).<br />
*Arthur Fraas, ''Observations on OIRA’s Policies and Procedures'', 63 Admin. L. Rev. (special ed.) 79 (2011).<br />
*Arthur Fraas & Randall Lutter, ''On the Economic Analysis of Regulations at Independent Regulatory Commissions'', 63 Admin. L. Rev. 213 (special ed.) (2011).<br />
*Jody Freeman & Jim Rossi, [https://www.acus.gov/sites/default/files/documents/Freeman-Rossi-ACUS-Report-5-30-12-PDF.pdf Improving Coordination of Related Agency Responsibilities] (May 30, 2012) (report to ACUS).<br />
*William Funk “Agency Oversight by the Political Branches,” ch. 11 in Section on Administrative Law and Regulatory Practice, ''A Guide to Judicial and Political Review of Federal Agencies'' 259-304 (2d ed. Michael E. Herz, Richard Murphy & Kathryn Watts eds., 2015).<br />
*Margaret Gilhooley, [https://journals.iupui.edu/index.php/inlawrev/article/view/2956/2879 Executive Oversight of Administrative Rulemaking: Disclosing the Impact], 25 Ind. L. Rev. 299 (1991).<br />
*John D. Graham & Cory R. Liu, [https://www.mercatus.org/research/journal-articles/regulatory-and-quasi-regulatory-activity-without-omb-and-benefit-cost Regulatory and Quasi-Regulatory Activity Without OMB and Cost-Benefit Review], 37 Harv. J.L. & Pub. Pol’y 425 (2014).<br />
*John D. Graham, Paul R. Noe & Elizabeth L. Branch, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2198&context=ulj Managing the Regulatory State: The Experience of the Bush Administration], 33 Fordham Urb. L. J. 953 (2006).<br />
*Wendy L. Gramm, ''Regulatory Review Issues, October 1985–February 1988'', 63 Admin. L. Rev. 27 (special ed.) (2011).<br />
*Abner S. Greene, ''Checks and Balances in an Era of Presidential Lawmaking'', 61 U. Chi. L. Rev. 123 (1994).<br />
*Robert W. Greene, [https://rutgerspolicyjournal.org/sites/jlpp/files/Greene.pdf Improving U.S. Financial Regulation Through OIRA Review & Robust Regulatory Analysis Standards], 14 Rutgers J.L. & Pub. Pol’y 89 (2016).<br />
*Sarah Grimmer, Note, ''Public Controversy Over Peer Review'', 57 Admin. L. Rev. 275 (2005).<br />
*Zachary J. Gubler, [https://www.acus.gov/sites/default/files/documents/ZGubler%20ACUS%20Final%20Report%2811-17%29.pdf Regulatory Experimentation] (Nov. 17, 2017) (report to ACUS).<br />
*Hiba Hafiz, [https://wlr.law.wisc.edu/wp-content/uploads/sites/1263/2018/01/Hafiz-Final.pdf Economic Analysis of Labor Regulation], 2017 Wis. L. Rev. 1115 (2017).<br />
*Robert W. Hahn, Risks, ''Costs, and Lives Saved: Getting Better Results From Regulation'', (Oxford Univ. Press & AEI Press, 1996).<br />
*Robert W. Hahn & John A. Hird, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1177&context=yjreg The Costs and Benefits of Regulation: Review and Synthesis], 8 Yale J. on Reg. 233 (1991).<br />
*Lisa Heinzerling, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2202&context=ulj Statutory Interpretation in the Era of OIRA], 33 Fordham Urb. L. J. 1097 (2006).<br />
*Lisa Heinzerling, [https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1741&context=pelr Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House], 31 Pace Envtl. L. Rev. 325 (2014).<br />
*Thomas D. Hopkins, ''The Evolution of OIRA Oversight—CWPS to OIRA'', 63 Admin. L. Rev. 71 (special ed.) (2011).<br />
*Elena Kagan, ''Presidential Administration'', 114 Harv. L. Rev. 2245 (2001).<br />
*Sally Katzen, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1444&context=mlr A Reality Check on an Empirical Study: Comments on “Inside the Administrative State,”] 105 Mich. L. Rev. 1497 (2007).<br />
*Sally Katzen, ''OIRA at Thirty: Reflections and Recommendations'', 63 Admin. L. Rev. 103 (special ed.) (2011).<br />
*Cornelius M. Kerwin & Scott R. Furlong, ''Rulemaking: How Government Agencies Write Law and Make Policy'' (CQ Press, 4th ed. 2011).<br />
*Peter Ketcham-Colwill, [https://www.gwlr.org/wp-content/uploads/2018/02/82-Geo.-Wash.-L.-Rev.-1622.pdf Presidential Influence Over Agency Rulemaking Through Regulatory Review], 82 Geo. Wash. L. Rev. 1622 (2014).<br />
*Robert E. Litan & William D. Nordhaus, ''Reforming Federal Regulation'' (Yale Univ. Press, 1983).<br />
*Michael A. Livermore, [http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/Livermore_Art.pdf Cost-Benefit Analysis and Agency Independence], 81 U. Chi. L. Rev. 609 (2014).<br />
*Michael A. Livermore & Richard L. Revesz, [https://www.law.virginia.edu/system/files/faculty/hein/livermore/livermore%20101geolj1337.pdf Regulatory Review, Capture, and Agency Inaction], 101 Geo. L.J. 1337 (2013)<br />
*Jeffrey S. Lubbers, ''A Guide to Federal Agency Rulemaking'' (ABA Section of Admin. Law & Regulatory Practice, 5th ed. 2012).<br />
*Jeffrey S. Lubbers, ''OMB to Require Peer Review for Regulatory Science Documents'', 29 Admin. L. & Reg. News 3, Fall 2003.<br />
*Maureen Mahon, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1179&context=law_lawreview Proceed With Caution: The Implications of the OMB Peer Review Guidelines on Precautionary Legislation], 84 Wash. U. L. Rev. 461 (2006).<br />
*Jonathan S. Masur & Eric A. Posner, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4712&context=clr Unquantified Benefits and the Problem of Regulation Under Uncertainty], 102 Cornell L. Rev. 87 (2016).<br />
*Randolph J. May, ''OMB’s Peer Review Proposal—Swamped by Science?'', 29 Admin. & Reg. L. News 4, Spring 2004.<br />
*Michael McCarthy, [https://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91-1] (Oct. 19, 2011) (report to ACUS).<br />
*Thomas O. McGarity, ''Presidential Control of Regulatory Agency Decisionmaking'', 36 Am. U. L. Rev. 443 (1987).<br />
*Thomas O. McGarity, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1538&context=dlj Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age], 61 Duke L.J. 1671 (2012).<br />
*Patrick A. McLaughlin & Jerry Ellig, ''Does OIRA Review Improve the Quality of Regulatory Impact Analysis? Evidence from the Final Year of the Bush II Administration'', 63 Admin. L. Rev. 179 (special ed.) (2011).<br />
*Emily Hammond Meazell, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1539&context=dlj Presidential Control, Expertise, and the Deference Dilemma], 61 Duke L.J. 1763 (2012).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1208&context=articles Disclosing “Political” Oversight of Agency Decision Making], 108 Mich. L. Rev. 1127 (2010).<br />
*Nina Mendelson, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Mendelson_May.pdf Another Word on the President’s Statutory Authority over Agency Action], 79 Fordham L. Rev. 2455 (2011).<br />
*Nina A. Mendelson & Jonathan B. Wiener, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2192&amp;context=articles Responding to Agency Avoidance of OIRA], 37 Harv. J.L. & Pub. Pol’y 447 (2014).<br />
*Gillian E. Metzger & Kevin M. Stack, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mlr Internal Administrative Law], 115 Mich. L. Rev. 1239 (2017).<br />
*James C. Miller III, ''The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future'', 63 Admin. L. Rev. 93 (special ed.) (2011).<br />
*Alan B. Morrison, ''OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation'', 99 Harv. L. Rev. 1059 (1986).<br />
*William A. Niskanen, ''Clinton Regulation Will Be “Rational”: Interview with Sally Katzen, the New OIRA Administrator'', Regulation Magazine No. 3, at 36 (1993).<br />
*Lars Noah, ''Peer Review and Regulatory Reform'', 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,606 (2000).<br />
*Paul Noe, ''Analyzing the Destruction of Human Capital by Regulations'', 63 Admin. L. Rev. 203 (special ed.) (2011).<br />
*Note, ''Regulatory Analyses and Judicial Review of Informal Rulemaking'', 91 Yale L. J. 739 (1982).<br />
*Note, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol124_%20OIRA%20_avoidance.pdf OIRA Avoidance], 124 Harv. L. Rev. 994 (2011).<br />
*Note, ''The Inflation Impact Statement Program: An Assessment of the First Two Years'', 26 Am. U. L. Rev. 1138 (1977).<br />
*Jennifer Nou, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_nou.pdf Agency Self-Insulation Under Presidential Review], 126 Harv. L. Rev. 1755 (2013).<br />
*Jennifer Nou & Edward H. Stiglitz, [https://southerncalifornialawreview.com/wp-content/uploads/2018/01/89_733.pdf Strategic Rulemaking Disclosure], 89 S. Cal. L. Rev. 733 (2016).<br />
*Anne Joseph O’Connell, [https://www.virginialawreview.org/wp-content/uploads/2020/12/889.pdf Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State], 94 Va. L. Rev. 889 (2008).<br />
*Erik D. Olson, ''The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291'', 4 Va. J. Nat. Resources L. 1 (1984).<br />
*Eloise Pasachoff, [https://www.yalelawjournal.org/pdf/a.2182.Pasachoff.2290_aqo1aub4.pdf The President’s Budget as a Source of Agency Policy Control], 125 Yale L.J. 2182 (2016).<br />
*Robert V. Percival, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1148&context=dlj Presidential Management of the Administrative State: The Not-So-Unitary Executive], 51 Duke L. J. 963 (2001).<br />
*Robert V. Percival, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Percival_May.pdf Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?], 79 Fordham L. Rev. 2487 (2011).<br />
*Richard J. Pierce, Jr., [http://www.nyujlpp.org/wp-content/uploads/2016/06/Pierce-Regulatory-Budget-Debate-19nyujlpp249.pdf The Regulatory Budget Debate], 19 N.Y.U. J. Legis. & Pub. Pol’y 249 (2016).<br />
*Eric A. Posner & E. Glen Weyl, [https://www.yalelawjournal.org/pdf/Posner-WeylPDF_ijby4z9e.pdf Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms], 124 Yale L.J. Forum 246 (2015).<br />
*Robert L. Rabin, ''Federal Regulation in Historical Perspective'', 38 Stan L. Rev. 1189 (1986).<br />
*Richard L. Revesz, [https://openyls.law.yale.edu/bitstream/handle/20.500.13051/8252/RichardLReveszCostBenefit.pdf?sequence=2&isAllowed=y Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation], 34 Yale J. On Reg. 545 (2017).<br />
*Richard L. Revesz, [http://www.californialawreview.org/wp-content/uploads/2014/12/02-Revesz.pdf Quantifying Regulatory Benefits], 102 Cal. L. Rev. 1423 (2014).<br />
*Richard L. Revesz & Michael A. Livermore, ''Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health'' (Oxford Univ. Press 2008).<br />
*Delissa Ridgway et al., ''The Council on Competitiveness and Regulatory Review: A “Kinder, Gentler” Approach to Regulation?'', 6 Admin. L. J. Am. U. 691 (1993).<br />
*David B. Rivkin, ''The Unitary Executive and Presidential Control of Executive Branch Rulemaking'', 7 Admin. L. J. Am. U. 309 (1993).<br />
*Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291'', 80 Mich. L. Rev. 193 (1981).<br />
*Arden Rowell, [https://www.law.uci.edu/lawreview/vol4/no4/Rowell.pdf Time in Cost-Benefit Analysis], 4 UC Irvine L. Rev. 1215 (2014).<br />
*Susan Rose-Ackerman, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1153&context=umlr Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review], 65 U. Miami L. Rev. 335 (2011).<br />
*Andrew Rudalevige, [http://lawreview.syr.edu/wp-content/uploads/2015/09/G-Rudalevige-For-Website.pdf Old Laws, New Meanings: Obama’s Brand of Presidential “Imperialism”], 66 Syracuse L. Rev. 1 (2016).<br />
*J.B. Ruhl & James Salzman, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1170&context=law_lawreview In Defense of Regulatory Peer Review], 84 Wash. U. L. Rev. 1 (2006).<br />
*Thomas O. Sargentich, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/The-Emphasis-on-the-Presidency-in-U.S.-Public-Law-An-Essay-Critiquing-Presidential-Administration.pdf The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration], 59 Admin. L. Rev. 1 (2007).<br />
*Peter M. Shane, ''Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking'', 48 Ark. L. Rev. 161 (1995).<br />
*Sidney Shapiro, [https://www.acus.gov/sites/default/files/documents/gov.acus_.1995.rec_.95-3.pdf Agency Review of Existing Regulations] (Jan. 15, 1995) (report to ACUS).<br />
*Sidney A. Shapiro, ''OMB’s Dubious Peer Review Procedures'', 34 Envtl. L. Rep. (Envtl. L. Inst.) 10,064 (2004).<br />
*Sidney A. Shapiro, ''OMB’s Revised Peer Review Bulletin'', 29 Admin. L. & Reg. News 10 (Summer 2004).<br />
*Sidney A. Shapiro & Richard Murphy, [https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Shapiro-Murphy.pdf Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation], 48 U.C. Davis L. Rev. 1457 (2015).<br />
*Sidney A. Shapiro & Ronald F. Wright, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1160&context=umlr The Future of the Administrative Presidency: Turning Administrative Law Inside-Out], 65 U. Miami L. Rev. 577 (2011).<br />
*Stuart Shapiro, ''OIRA Inside and Out'', 63 Admin. L. Rev. 135 (special ed.) (2011).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Stuart Shapiro & Debra Borie-Holtz, ''The Politics of Regulatory Reform'' (Routledge 2013).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS).<br />
*David R. Sheaffer, [https://www.thecre.com/pdf/20170827_bca.pdf The Price of Regulation: Rethinking Executive Review of Agency Rulemaking], 2016 Mich. St. L. Rev. 1091 (2016).<br />
*Peter L. Strauss, ''Overseer or “The Decider”? The President in Administrative Law'', 75 Geo. Wash. L. Rev. 696 (2007).<br />
*Peter L. Strauss, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=caselrev The President and the Constitution], 65 Case W. Res. L. Rev. 1151 (2015).<br />
*Peter L. Strauss & Cass R. Sunstein, ''The Role of the President and OMB in Informal Rulemaking'', 38 Admin. L. Rev. 181 (1986).<br />
*Cass R. Sunstein, Simpler: ''The Future of Government'' (Simon & Schuster, 2013).<br />
*Cass R. Sunstein, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_sunstein.pdf The Office of Information and Regulatory Affairs: Myths and Realities], 126 Harv. L. Rev. 1838 (2013).<br />
*Cass R. Sunstein, [http://www.bu.edu/bulawreview/files/2014/08/SUNSTEINDYSFUNCTION.pdf The Regulatory Lookback], 94 B.U. L. Rev. 579 (2014).<br />
*Jim Tozzi, ''OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding'', 63 Admin. L. Rev. 37 (special ed.) (2011).<br />
*Paul R. Verkuil, ''Jawboning Administrative Agencies: Ex Parte Contacts by the White House'', 80 Colum. L. Rev. 943 (1980).<br />
*Christopher J. Walker, ''Modernizing the Administrative Procedure Act'', 69 Admin. L. Rev. 629 (2017).<br />
*Adam L. Warber, ''Executive Orders and the Modern Presidency: Legislating from the Oval Office'' (Lynne Reiner Publishers 2006).<br />
*Kathryn A. Watts, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1240&context=mlr Controlling Presidential Control], 114 Mich. L. Rev. 683 (2016).<br />
*Christopher E. Wilson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Not-Good-Enough-for-Government-Work-How-OMBs-Good-Guidance-Practices-May-Unintentionally-Complicate-Administrative-Law.pdf Comment: Not Good Enough for Government Work: How OMB’s Good Guidance Practices May Unintentionally Complicate Administrative Law], 59 Admin. L. Rev. 177 (2007).<br />
</div><br />
<br />
===Miscellaneous===<br />
<br />
*National Academy of Public Administration, ''Presidential Management of Rulemaking in Regulatory Agencies'' (1987).<br />
*[http://www.thecre.com/ombpapers/featuredarticles.html Center for Regulatory Effectiveness].<br />
*Competitive Enterprise Institute, [https://cei.org/10KC Ten Thousand Commands].</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Rulemaking_Requirements_from_the_Executive_Office_of_the_President&diff=1691Rulemaking Requirements from the Executive Office of the President2023-08-15T21:46:20Z<p>MGluth: </p>
<hr />
<div>This section discusses the most significant presidential Executive Orders, Bulletins, and Memoranda, which pertain to the rulemaking process or federal regulation. Other executive orders and memoranda may be found in other sections, e.g., those relating to the [[Federal Advisory Committee Act]].<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)], [https://www.whitehouse.gov/omb/ Office of Management and Budget (OMB)]<br />
<br />
==Executive Orders==<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Executive Order 12372, [https://www.archives.gov/federal-register/codification/executive-order/12372.html Intergovernmental Review of Federal Programs], 47 Fed. Reg. 30959 (July 16, 1982).<br />
*Executive Order 12630, [https://www.archives.gov/federal-register/codification/executive-order/12630.html Governmental Actions and Interference with Constitutionally Protected Property Rights], 53 Fed. Reg. 8859 (Mar. 18, 1988).<br />
*Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 ( Oct. 4, 1993).<br />
*Executive Order 12889, [https://www.govinfo.gov/content/pkg/WCPD-1994-01-03/pdf/WCPD-1994-01-03-Pg2639.pdf Implementation of the North American Free Trade Agreement], 58 Fed. Reg. 69681 (Dec. 30, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations], 59 Fed. Reg. 7629 (Feb. 16, 1994).<br />
*Executive Order 12988, [https://www.govinfo.gov/content/pkg/WCPD-1996-02-12/pdf/WCPD-1996-02-12-Pg189.pdf Civil Justice Reform], 61 Fed. Reg. 4729 (Feb. 7, 1996).<br />
*Executive Order 13045, [https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Protection of Children from Environmental Health Risks and Safety Risks], 62 Fed. Reg. 19885 (Apr. 23, 1997).<br />
*Executive Order 13132, [https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Federalism], 64 Fed. Reg. 43255 (Aug. 10, 1999).<br />
*Executive Order 13175, [https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
*Executive Order 13211, [https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use], 66 Fed. Reg. 28355 (May 22, 2001).<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 16, 2002).<br />
*Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review], 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming Executive Order 12866).<br />
*Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], 76 Fed. Reg. 41587 (July 14, 2011).<br />
*Executive Order 13609, [https://www.govinfo.gov/content/pkg/FR-2012-05-04/pdf/2012-10968.pdf Promoting International Regulatory Cooperation], 77 Fed. Reg. 26413 (May 4, 2012).<br />
*Executive Order 13610, [https://www.govinfo.gov/content/pkg/FR-2012-05-14/pdf/2012-11798.pdf Identifying and Reducing Regulatory Burdens], 77 Fed. Reg. 28469 (May 14, 2012).<br />
*Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People], 80 Fed. Reg. 56356 (Sept. 18, 2015).<br />
*Executive Order 13725, [https://www.govinfo.gov/content/pkg/FR-2016-04-20/pdf/2016-09346.pdf Steps to Increase Competition and Better Inform Consumers and Works to Support Continued Growth of the American Economy], 81 Fed. Reg. 23417 (Apr. 20, 2016).<br />
*Executive Order 14094, [https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf Modernizing Regulatory Review], 88 Fed. Reg. 21,879 (Apr. 11, 2023).<br />
</div><br />
<br />
==Table of Executive Order Requirements==<br />
{| class="wikitable"<br />
|+<br />
!Executive Order (EO)<br />
!Date and Administration of Issue<br />
!Action Items<br />
!Does the EO Contain a Statement Regarding Applicability to Independent Agencies?<br />
|-<br />
|[https://www.archives.gov/federal-register/codification/executive-order/12630.html EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights]<br />
|1988 - Reagan<br />
|''General Principles''. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” <br />
<br />
<br />
''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.”<br />
<br />
''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.<br />
<br />
<br />
''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).<br />
<br />
<br />
''Ensuring Compliance.'' OMB and the Department of Justice are responsible for ensuring compliance with the EO.<br />
|No<br />
|-<br />
|[https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf EO 12866 - Regulatory Planning and Review]<br />
|1993 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12889.pdf EO 12889 - Implementation of the North American Free Trade Agreement]<br />
|1993 - Clinton<br />
|''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.”<br />
<br />
<br />
''Exceptions''<br />
<br />
#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)).<br />
#Perishable Goods. Technical regulations relating to perishable goods.<br />
#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.<br />
#Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection.<br />
<br />
''Definitions''<br />
<br />
#Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7).<br />
#Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7).<br />
|No<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf EO 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations]<br />
|1994 - Clinton<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1996-02-07/pdf/96-2755.pdf EO 12988 - Civil Justice Reform]<br />
|1996- Clinton<br />
|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.<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks]<br />
|1997 - Clinton<br />
|''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.”<br />
''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:<br />
<br />
#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.”<br />
#Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/pdf/99-20729.pdf EO 13132 - Federalism]<br />
|1999 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf EO 13175 - Consultation and Coordination with Indian Tribal Governments]<br />
|2000 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2001-05-22/pdf/01-13116.pdf EO 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use]<br />
|2001 - Bush<br />
|''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.<br />
<br />
<br />
''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. <br />
<br />
<br />
''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. <br />
<br />
<br />
''Publication.'' Agencies must publish the Statement or a summary in the related NPRM and final rule.<br />
|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 . . . ."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2002-08-16/pdf/02-21056.pdf EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking]<br />
|2002 - Bush<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf EO 13563 - Improving Regulation and Regulatory Review]<br />
|2011 - Obama<br />
|''General Principles.'' This EO supplements and reaffirms [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 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.<br />
<br />
<br />
''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.”<br />
<br />
<br />
''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.”<br />
<br />
<br />
''Flexible Approaches.'' Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.”<br />
<br />
<br />
''Objectivity with regard to scientific information.'' Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking.<br />
<br />
<br />
''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.”<br />
|Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review <nowiki>[EO] 12866</nowiki>]."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf EO 13579 - Regulation and Independent Regulatory Agencies]<br />
|2011 - Obama<br />
|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 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.”<br />
|Yes. The EO is entirely geared toward independent agencies.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-04/pdf/2012-10968.pdf EO 13609 - Promoting International Regulatory Cooperation]<br />
|2012 - Obama<br />
|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.<br />
|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.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf EO 13610 - Identifying and Reducing Regulatory Burdens]<br />
|2012 - Obama<br />
|Agencies are instructed to institutionalize regular reviews of their previously 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.<br />
|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)."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2016-04-20/pdf/2016-09346.pdf EO 13725 - Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy]<br />
|2016 - Obama<br />
|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. <br />
|Yes. See § 3(b) for relevant text: "Independent agencies are strongly encouraged to comply with the requirements of this order."<br />
|-<br />
|[https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ EO 14094 - Modernizing Regulatory Review]<br />
|2023 - Biden<br />
|Agencies should affirmatively promote public participation in rulemaking and proactively engage interested parties. Regulatory analysis should recognize distributive impacts and equity.<br />
|No.<br />
|}<br />
<br />
==Other White House Bulletins and Memoranda==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-119-1.pdf Federal Participation in the Development and Use of Voluntary Standards and in Conformity Assessment Activities] (1998).<br />
*[https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf Plain Language in Government Writing] (1998).<br />
*[https://obamawhitehouse.archives.gov/omb/inforeg_oira_review_process/ Presidential Review of Agency Rulemaking by OIRA] (2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf Circular No. A-4, New Guidelines for the Conduct of Regulatory Analysis] (2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf Circular A-4, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/CircularA94.pdf Circular A-94, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf Implementation of Modernizing Regulatory Review Executive Order] (Apr. 6, 2023).<br />
*M-05-03, [https://obamawhitehouse.archives.gov/omb/memoranda_fy2005_m05-03 Final Information Quality Bulletin for Peer Review] (2004).<br />
*[https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf Final Bulletin for Agency Good Guidance Practices] (2007).<br />
*M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf Updated Principles for Risk Analysis](2007).<br />
*M-19-14, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf Guidance on Compliance with the Congressional Review Act] (2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01866.pdf Modernizing Regulatory Review] (2021)<br />
</div><br />
<br />
==Overview==<br />
===History of Presidential Oversight of Rulemaking and Regulation===<br />
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. <br />
<br />
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.<br />
<br />
In 1974, President Ford issued an executive order requiring executive branch agencies to prepare an “inflation impact statement” for each “major” federal action. 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” rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to COWPS upon publication of the NPRM. COWPS would review the IIS and, in its discretion, offer informal criticism of the proposal or participate in the public proceedings on the rule. <br />
<br />
President Carter continued presidential review of agency rules by means of Executive Order 12044, ''Improving Government Regulations'', issued in 1978. Under the order, executive agencies were required to: (1) publish semi-annual agendas, describing and giving the legal bases for, any “significant” regulations under development by the agency; (2) establish procedures to identify “significant” rules, to evaluate their need, and to have the agency head assure that the “least burdensome of the acceptable alternatives” was proposed; and (3) prepare a “regulatory analysis” that examined the cost-effectiveness of alternative regulatory approaches for “major rules.”<br />
<br />
President Carter also established a Regulatory Analysis Review Group to review the regulatory analyses prepared for a limited number of proposed “major” rules and to submit comments on the proposed rules during the public comment period. He created another rulemaking review body, the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. These efforts to coordinate agency rulemaking were challenged unsuccessfully in several lawsuits.<br />
<br />
President Reagan acted quickly after taking office to increase control over executive branch rulemaking. On February 17, 1981, the President issued an executive order on federal regulations designed “to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” The new Executive Order 12291, [https://www.archives.gov/federal-register/codification/executive-order/12291.html Federal Regulation], replaced Executive Order 12044, which President Reagan said had “proven ineffective.” <br />
<br />
Executive Order 12291 contained both substantive requirements and procedural steps to be followed in the development and promulgation of new rules. The [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)] in OMB was given responsibility for implementing Executive Order 12291. OMB’s rulemaking review function is supplemented by the powers it was given in the [[Paperwork Reduction Act]] of 1980, by which Congress statutorily established OIRA to, among other things, review and approve or disapprove agency “information collection requests.”<br />
<br />
The Office of Legal Counsel in the U.S. Department of Justice issued an [https://www.justice.gov/file/22586/download opinion] supporting the validity of Executive Order 12291. The opinion stated that the President’s authority to issue the order was based on his constitutional power to “take care that the laws be faithfully executed.” While concluding that any inquiry into Congressional intent in enacting specific rulemaking statutes “will usually support the legality of presidential supervision of rulemaking by Executive Branch agencies,” the opinion stated that presidential supervision of agency rulemaking “is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official.”<br />
<br />
Despite criticism of this new form of presidential review, President Reagan began his second term by expanding the program through Executive Order 12498, [https://www.archives.gov/federal-register/codification/executive-order/12498.html Regulatory Planning Process], which established a “regulatory planning process” with the purpose of helping to “ensure that each major step in the process of rule development is consistent with Administration policy.” <br />
<br />
According to OMB, the problem with regulatory review under Executive Order 12291 was that such review “often came late in the regulatory process, after huge investments of agency time and resources, and often after agency staff commitments to constituents had made it extremely difficult to consider any legally acceptable, but previously ignored, regulatory alternative.” This resulted, OMB said, in the “bureaucracy often present[ing] agency heads with faits accompli.” <br />
<br />
Executive Order 12498’s regulatory planning process was designed to avoid this problem. Under this procedure, the head of each agency was required to determine at the beginning of the regulatory process whether a proposed regulatory venture was “consistent with the goals of the Administration.” At the beginning of the year, Agency heads were to develop a plan for managing the agency’s most significant regulatory actions. OMB then reviewed the plan for consistency with the administration’s program and published the coordinated agency plans in a government-wide document. This document, entitled “Regulatory Program of the United States Government,” governed more than 20 major rulemaking agencies and was published each year during the second Reagan term and the Bush administration to inform Congress and the public of the government’s regulatory plans.<br />
<br />
President Reagan, in 1987 and 1988, issued three additional executive orders, dealing with federalism, interference with property rights (which is still in effect), and the family. OMB was given a role in ensuring coordination of regulatory policy in these areas. President Bush basically continued the program of presidential review of agency rulemaking established by President Reagan, although due to congressional opposition to OIRA actions, President Bush’s nominee to head OIRA was not confirmed. To counter this weakening of OIRA’s authority, President Bush created the Council on Competitiveness, headed by Vice President Quayle, and gave it authority to intervene in major agency rulemakings. Several of the Council’s interventions provoked intense criticisms leading up to the 1992 elections.<br />
<br />
===The Clinton Executive Order—Executive Order 12866===<br />
With the election of President Clinton, one of his first actions was an attempt to reestablish some bipartisan consensus on rulemaking review. His nominee as OIRA Administrator was the first subcabinet nominee to be appointed. Following the example of the Reagan Administration, President Clinton then set out to redraft the extant Executive Order and produced Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], on September 30, 1993. This Executive Order, which remains operative, carries over many of the principles of Executive Order 12291 and Executive Order 12498 and made some significant modifications that simplified the process, made it more selective, and introduced more transparency into the OMB/agency consultations. In drafting this Executive Order, the Clinton Administration followed many of the suggestions in ACUS [https://www.acus.gov/sites/default/files/documents/88-9.pdf Recommendation 88-9]. <br />
<br />
The Executive Order begins with a lengthy “Statement of Regulatory Philosophy and Principles,” which are quite similar to those in Executive Order 12291 except that it specifies that measurement of costs and benefits should include both quantifiable and qualitative measures. As with previous Orders, Executive Order 12866 retains the traditional (since 1978) level of $100 million annual effect on the economy for those major rules (now referred to as “economically significant” rules) that must be accompanied by cost-benefit assessments when forwarded to OIRA as proposed and final rules.<br />
<br />
Executive Order 12866 also retains the OIRA review process for other rules, although it only requires that “significant regulatory actions” be subject to review. This includes those $100 million rules plus others that have material adverse effects on “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” It also includes rules that may materially alter the budgetary impact of benefit programs or the rights of recipients, that raise “novel legal or policy issues,” or are inconsistent or interfere with actions taken by another agency. The process established for identifying such “significant regulatory actions” relies on agency identification of them in the first instance, vetted by OIRA. Rules that are not so identified may be issued without OIRA review. This selectivity streamlined the review process considerably and made it possible to include, for the first time, a deadline (of 90 days, with one 30-day extension allowed) for completion of OIRA review. In the event of an unresolved dispute between OIRA and the agency, the Vice President is directed to make the decision (or recommend one to the President).<br />
<br />
The review process set forth in the Executive Order made significant improvements in transparency. Following an ACUS recommendation closely, it provides that after the agency has concluded its rulemaking it should make available to the public all submissions to OIRA and identify all changes made in the rule, noting those made at the behest of OIRA. In addition, OIRA, for its part, must regularize the way it receives any outside communications concerning an agency rule that is subject to review. Only the Administrator or her designee may receive such communications. OIRA must forward any such communications to the agency within ten days, invite agency officials to any meetings held with outsiders, and maintain a public log of all such contacts. At the end of the proceeding OIRA must also make available all documents exchanged with the agency.<br />
<br />
In place of the Reagan Executive Order 12498 on regulatory planning, the Clinton Order establishes its own yearly planning mechanism. It continues the semiannual publication of the [https://www.reginfo.gov/public/do/eAgendaMain Unified Agenda of Regulatory and Deregulatory Actions], which lists all proposed, pending, and completed regulatory and deregulatory actions. And it requires that the October Agenda contain each agency’s annual Regulatory Plans, which must be approved personally by the agency head. These plans must be forwarded to OIRA (and then on to affected agencies, the Vice President and a group of named high-level White House Advisors) by June 1 of each year. The plans are supposed to also include agency determinations on which existing rules are to be reviewed and reconsidered during the ensuing year and “preliminary estimates of the anticipated costs and benefits” of each rule planned for that calendar year. These actions do not represent any sharp break from the practices of previous administrations. However, Executive Order 12866 is a departure in one regard—for the first time the independent regulatory agencies are specifically directed to comply with the planning and agenda provisions (though not with the rule-review process).<br />
<br />
The Clinton Executive Order was generally well received by most observers of the regulatory scene. Its basic approach has remained fundamentally unchanged since its issuance, and OIRA has worked out a stable and workable relationship with the agencies in administering it. The once rather vibrant legal and policy debate over the pros and cons of presidential review has gradually evolved into a fairly broad agreement that it is legal and, if properly administered, is essential to effective executive branch management. Nevertheless, there has been some serious criticism of OIRA’s failure to meet the deadlines set in the Order. <br />
<br />
President Clinton also issued a [https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf presidential directive on plain language] and number of other executive orders that remain in effect concerning: environmental justice in minority populations and low-income populations ([https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO12898envjustice.pdf Executive Order 12898]), civil justice reform ([https://www.govinfo.gov/content/pkg/FR-1996-02-07/pdf/96-2755.pdf Executive Order 12988]), protection of children from environmental risks ([https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Executive Order 13045]), federalism ([https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Executive Order 13132]), and consultation with Indian Tribal Governments ([https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Executive Order 13175]).<br />
<br />
President Bush continued the use of Executive Order 12866, although he did make several significant changes. In 2002, he made some small changes in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review], basically removing the Vice President from the process. In January 2007, in Executive Order 13422, [https://www.govinfo.gov/content/pkg/FR-2007-01-23/pdf/07-293.pdf Further Amendment to Executive Order 12866 on Regulatory Planning and Review], he made more fundamental changes. Most significantly he added a requirement that “significant guidance documents” also be reviewed by OIRA in a way similar to significant regulatory actions. He also required that agencies identify in writing specific “market failures” that necessitate a rulemaking, that agency Regulatory Policy Officers be presidential appointees, that these officers must approve the Regulatory Plan, that aggregate costs and benefits for all rules must be included in the Regulatory Plan, and that agencies consider whether to use “formal” (“on the record”) rulemaking for “complex determinations.” However, as mentioned below, President Obama, upon assuming office, revoked the Bush changes and reinstated the original Clinton order. However, by later memorandum, the requirement that significant guidance documents be reviewed by OIRA was reinstated.<br />
<br />
OIRA did issue a [https://georgewbush-whitehouse.archives.gov/omb/inforeg/oira_review-process.html memorandum] in September 2001 putting its own stamp on the Executive Order 12866 process. The memorandum describes the “general principles and procedures that will be applied by OMB in the implementation of Executive Order 12866 and related statutory and executive authority.”<br />
<br />
Significantly, during the Bush Administration, OIRA also announced several new initiatives in its review process. First, it made extensive use of its website to publish its guidelines and other information pertaining to its review process and specific rule reviews. This continues today. Second, it began the practice of issuing public “return letters” that send rules back to the agency for reconsideration, “review letters” that comment on aspects of a particular rule review, and “prompt letters,” which are sent on OMB’s initiative and contain suggestions for new or stronger regulations. While these letters are still posted on [https://www.reginfo.gov/public/do/eoReturnLetters reginfo.gov], the Obama and the Trump Administrations have made little use of this practice. <br />
<br />
More importantly, during the Bush Administration, OMB issued four far-reaching documents affecting the regulatory process that remain in effect today. In 2003 it issued a revised [https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/ OMB Circular A-4], which provides guidance on the development of regulatory analyses. OMB also issued a more far-reaching and controversial [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf Peer Review Bulletin] in December 2004, which requires administrative agencies to conduct a peer review on all “influential regulatory information that the agency intends to disseminate.” Finally, in 2007, OMB issued an important new government-wide [https://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/E7-1066.pdf Bulletin on Good Guidance Practices.] OMB also (along with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy]) issued a set of [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf#:~:text=In%201995%2C%20an%20interagency%20working%20group%2C%20co-chaired%20by,Information%20and%20Regulatory%20Affairs%20%28OIRA%29%2C%20remain%20valid%20today.f Updated Principles for Risk Analysis]. In so doing it declined to finalize a Proposed Risk Assessment Bulletin that the two agencies had issued in January 2006, in favor of updating the Clinton Administration’s Principles issued in 1995. Finally, President Bush issued two other executive orders concerning regulations that remain in effect today: (1) analysis of adverse effects on energy supply, distribution, or use ([https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Executive Order 13211]) and (2) proper consideration of small entities in agency rulemaking ([https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Executive Order 13272]). <br />
<br />
===Developments in the Obama Administration===<br />
Shortly after taking office, President Obama revoked the Bush Amendments to Executive Order 12866 and directed the Director of OMB, in consultation with regulatory agencies, to produce a set of recommendations for a new executive order on federal regulatory review within 100 days, followed by an unusual request for public comments on the same subject. Almost 200 public comments were received. <br />
<br />
After about a year of internal consideration, the White House finally settled on its approach to OMB review—basically to reaffirm Executive Order 12866—with Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review] on January 18, 2011. In Section 1(b), the Order stated: “This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.”<br />
<br />
It did contain a few new mandates and points of emphasis. Most notably, agencies were urged (as appropriate and within legal constraints) to (1) consider “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts”; (2) “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”; (3) “provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded”; (4) for proposed rules, provide “an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings”; (5) seek public input from affected persons “[b]efore issuing a notice of proposed rulemaking”; (6) “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice”; (7) “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned”; and (8) “[w]ithin 120 days of the date of this order, . . . develop and submit to [OIRA] a preliminary plan” for periodically reviewing “its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” <br />
<br />
The one action mandate in the new Executive Order was for agencies to develop plans for retrospective review of their existing regulations. On May 26, 2011, the OIRA Administrator announced the results of this effort. On July 11, 2011, President Obama issued Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], which extended the terms of Executive Order 13563 to independent regulatory agencies. On September 15, 2015, President Obama issued Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People]. Noting the value of insights from behavioral science to improve the “effectiveness and efficiency of Government.”<br />
<br />
===Developments in the Trump Administration===<br />
Shortly after taking office, President Trump issued Executive Order 13771, [https://www.govinfo.gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf Reducing Regulation and Controlling Regulatory Costs,] which requires agencies to identify at least two regulations to be repealed for every proposed or promulgated regulation. 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. The order directed the Director of OMB to provide agency heads with guidance addressing the processes for measuring regulatory costs, the costs of existing regulations, what qualifies as new and offsetting regulations, and situations that would require waivers of the order’s requirements. OIRA issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/M-17-21-OMB.pdf#:~:text=This%20guidance%2C%20in%20the%20form%20of%20Questions%20and,Regulatio%20ns.%20go%20v%20in%20docket%20ID%20OMB-2017-0002. Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs”] to assist agencies in carrying out these requirements.<br />
<br />
President Trump also issued Executive Order 13777, [https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf Enforcing the Regulatory Reform Agenda]. This order requires the head of each agency to designate an official as its Regulatory Reform Officer (RRO) who would implement initiatives and policies including Executive Order 13771, Executive Order 12866, and Section 6 of Executive Order 13563 regarding retrospective review. All agencies must also form a Regulatory Reform Task Force made up of the RRO, the Regulatory Policy Officer, a representative from the central policy office, and three senior agency officials if the agency is listed in 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 901(b)(1)] (the executive departments, EPA, and NASA), which “shall evaluate existing regulations . . . and make recommendations to the agency head regarding their repeal, replacement, or modification.” In making these determinations, the task forces should focus on regulations that (1) “eliminate jobs, or inhibit job creation;” (2) “are outdated, unnecessary, or ineffective;” (3) “impose costs that exceed benefits;” (4) “create serious inconsistency or otherwise interfere with regulatory initiatives and policies;” (5) “are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001, . . . in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or” (6) “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” The Executive Order also requires agency heads to prioritize regulations that the Regulatory Reform Task Force identifies as outdated, unnecessary, or ineffective when implementing regulatory offsets under Executive Order 13771.<br />
<br />
Finally, President Trump issued Executive Order 13783, [https://www.govinfo.gov/content/pkg/FR-2017-03-31/pdf/2017-06576.pdf Promoting Energy Independence and Economic Growth,] which directs agencies to review regulations that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” This order also revoked Executive Order 13653, [https://www.govinfo.gov/content/pkg/FR-2013-11-06/pdf/2013-26785.pdf Preparing the United States for the Impact of Climate Change], and memoranda under the Obama Administration related to climate change.<br />
<br />
===Developments in the Biden Administration===<br />
Within his first two months in office, President Biden rescinded several of President Trump’s executive orders related to the rulemaking process. In addition, President Biden issued a memorandum titled Modernizing Regulatory Review. This memorandum explicitly reaffirms Executive Orders 12,866 and 13,563. Additionally, it directs the OMB Director to work with agencies to produce a set of recommendations that improves and modernizes regulatory review. The memorandum specifies that these recommendations should include concrete suggestions on how the regulatory review process can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Furthermore, the memorandum specifies that the recommendations should, among other actions, include proposed reforms to Circular A-4 to promote these goals; suggest procedures that take into account distributional impacts in regulatory analyses; propose how OIRA can partner with agencies to “explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits”; and determine an appropriate approach to the review of guidance documents.<br />
<br />
On April 6, 2023, President Biden issued Executive Order 14094, [https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ Modernizing Regulatory Review], which reaffirmed and amended Executive Order 12,866 § 3(f)’s definition of “significant regulatory action” to require OIRA review for rulemakings having an annual effect on the economy of $200 million or more. It also reaffirmed the Biden Administration’s commitment to distributive analysis and equity, as well as proactive public engagement in rulemaking. In addition to the Executive Order, the Biden Administration also issued revisions to Circulars [https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf A-4] and [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A94/a094.pdf A-94] for public comment, as well as a [https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf memorandum] regarding implementation of the Executive Order. On July 19, 2023, OMB issued a [https://www.whitehouse.gov/wp-content/uploads/2023/07/Broadening-Public-Participation-and-Community-Engagement-in-the-Regulatory-Process.pdf memorandum] for the heads of executive departments and agencies providing guidance for how to implement Executive Order 14094.<br />
<br />
==Bibliography==<br />
===Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg33312/pdf/CHRG-110hhrg33312.pdf Amending Executive Order 12866: Good Governance or Regulatory Usurpation?], Hearing Before Subcomm. on Commercial and Admin. Law, H. Comm. of the Judiciary, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg86439/pdf/CHRG-108hhrg86439.pdf How to Improve Regulatory Accounting: Costs, Benefits and Impacts of Federal Regulations], Hearing Before Subcomm. on Energy Policy, Nat. Res. and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004) (statement of John D. Graham, Administrator of OIRA).<br />
*OIRA Insight, Reform, and Accountability Act, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt19/pdf/CRPT-115hrpt19-pt1.pdf H.R. Rep. No. 115-19] (2017).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg20632/pdf/CHRG-114hhrg20632.pdf Assessing the Obama Years: OIRA and Regulatory Impacts on Jobs, Wages and Economic Recovery], Hearing Before Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2016) ([https://judiciary.house.gov/committee-activity/hearings/assessing-the-obama-years-oira-and-regulatory-impacts-on-jobs-wages-and video]).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26026/pdf/CHRG-114hhrg26026.pdf Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking], Hearing Before Subcomm. on Health Care, Benefits and Admin. Rules & Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/challenges-facing-oira-ensuring-transparency-effective-rulemaking/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82203/pdf/CHRG-113hhrg82203.pdf Reducing Red Tape: The New OIRA Administrator’s Perspective], Hearing Before H. Comm. on Small Bus., 113th Cong. (2013).<br />
<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on the Costs and Benefits of Regulations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Report to Congress on the Costs and Benefits of Federal Regulations (Sept. 30, 1997). Notice of availability of draft report and request for comments, 62 Fed. Reg. 39352 (July 22, 1997).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/costbenefitreport1998.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (January 1999). Notice of availability of draft report and request for comments, 63 Fed. Reg. 44034 (Aug. 17, 1998), extended 63 Fed. Reg. 49935 (Sept. 18, 1998).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2000fedreg-report.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (June 2000). Notice of availability of draft report and request for comments, 65 Fed. Reg. 1296 (Jan. 7, 2000); extended 65 Fed. Reg. 4447 (Jan. 27, 2000) and 65 Fed. Reg. 7198 (Feb. 7, 2000).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2001). Notice of availability of draft report and request for comments, 66 Fed. Reg. 22041 (May 2, 2001); extended 66 Fed. Reg. 34963 (July 2, 2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2002). Notice of availability of draft report and request for comments, 67 Fed. Reg. 15014 (Mar. 28, 2002).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (September 2003). Notice of availability of draft report and request for comments, 68 Fed. Reg. 15772 (Apr. 1, 2003).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2004). Notice of availability of draft report and request for comments, 69 Fed. Reg. 7987 (Feb. 20, 2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2005). Notice of availability of draft report and request for comments, 70 Fed. Reg. 14735 (Mar. 23, 2005).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2007). Notice of availability of draft report and request for comments, 71 Fed. Reg. 19213 (Apr. 13, 2006).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2008). Notice of availability of draft report and request for comments, 72 Fed. Reg. 11061 (Mar. 12, 2007).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2009). Notice of availability of draft report and request for comments, 73 Fed. Reg. 55169 (Sept. 24, 2008).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Jan. 27, 2010). Notice of availability of draft report and request for comments, 74 Fed. Reg. 48101 (Sept. 21, 2009).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (July 2010). Notice of availability of draft report and request for comments, 75 Fed. Reg. 22630 (Apr. 29, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2011). Notice of availability of draft report and request for comments, 76 Fed. Reg. 18260 (Apr. 1, 2011).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (April 2013). Notice of availability of draft report and request for comments, 77 Fed. Reg. 22003 (Apr. 12, 2012).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (May 2014). Notice of availability of draft report and request for comments, 78 Fed. Reg. 29780 (May. 21, 2013).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 15, 2015). Notice of availability of draft report and request for comments, 72 Fed. Reg. 37776 (July 2, 2014).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Mar. 10, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf Draft 2016 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/12/draft_2017_cost_benefit_report.pdf 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Feb. 23, 2018).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2019/12/2019-CATS-5885-REV_DOC-2017Cost_BenefitReport11_18_2019.docx.pdf 2017 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 9, 2019). <br />
*[https://www.whitehouse.gov/wp-content/uploads/2019/12/2019-CATS-5899-REV_DOC-Draft2018_2019_2020Cost_BenefitReport11_20_2019.pdf 2018, 2019 and 2020 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2019).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2021/01/2018_2019_2020-OMB-Cost-Benefit-Report.pdf 2018, 2019, and 2020 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act]. <br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Program of the United States Government'' (1987-1988) (and through 1990-91).<br />
*''Report on Executive Order No. 12866'', 59 Fed. Reg. 24276 (May 10, 1994).<br />
*''More Benefits Fewer Burdens—Creating a Regulatory System that Works For the American People'', A Report to the President on the Third Anniversary of Executive Order 12866 (1996).<br />
</div><br />
<br />
===ACUS Documents===<br />
====Recommendations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*88-9 [https://www.acus.gov/sites/default/files/documents/88-9.pdf Presidential Review of Agency Rulemaking]<br />
*93-4 [https://www.acus.gov/sites/default/files/documents/93-4.pdf Improving the Environment for Agency Rulemaking]<br />
*95-3 [https://www.acus.gov/sites/default/files/documents/95-3.pdf Review of Existing Agency Regulations]<br />
*2011-6 [https://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf International Regulatory Cooperation]<br />
*2012-5 [https://www.acus.gov/sites/default/files/Final-Recommendation-2012-5-Improving-Agency-Coordination.pdf Improving Coordination of Related Agency Responsibilities]<br />
*2013-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202013-2%20%28Benefit-Cost%20Analysis%29_0.pdf Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%25202014-5%2520%2528Retrospective%2520Review%2529_1.pdf Retrospective Review of Agency Rules]<br />
*2015-1 [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Recommendation%20FINAL_0.pdf Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2017-3 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-3%20%28Plain%20Language%20in%20Regulatory%20Drafting%29.pdf Plain Language in Regulatory Drafting]<br />
*2017-6 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-6%20%28Learning%20from%20Regulatory%20Experience%29_0.pdf Learning from Regulatory Experience]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
</div><br />
===CRS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Maeve P. Carey, RL32240, ''The Federal Rulemaking Process: An Overview'' (June 17, 2013).<br />
*Maeve P. Carey, R41974, ''Cost-Benefit and Other Analysis Requirements in the Rulemaking Process'' (Dec. 9, 2014).<br />
*Vivian S. Chu & Daniel T. Shedd, R42720, ''Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues'' (Sept. 10, 2012).<br />
*Vivian S. Chu & Daniel T. Shedd, RS20846, ''Executive Orders: Issuance, Modification, and Revocation'' (Apr. 6, 2014).<br />
*Curtis Copeland, RL33862, ''Changes to the OMB Regulatory Review Process by Executive Order 13422'' (Jan. 3, 2008).<br />
*Curtis Copeland, RL32397, ''Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs'' (June 9, 2009).<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/RCED84-62, [https://www.gao.gov/assets/150/141408.pdf Cost-Benefit Analysis Can Be Useful in Assessing Environmental Regulations, Despite Limitations] (1984).<br />
*T-GGD-99-93, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-99-93/pdf/GAOREPORTS-T-GGD-99-93.pdf Federalism: Implementation of Executive Order 12612 in the Rulemaking Process] (1999).<br />
*GAO/T-GGD-99-131, [https://www.gao.gov/assets/110/108000.pdf Federalism: Previous Initiatives Have Had Little Effect on Agency Rulemaking] (1999).<br />
*GAO/ GGD-99-59, [https://www.gao.gov/assets/160/156562.pdf Regulatory Accounting: Analysis of OMB’s Reports on the Costs and Benefits of Federal Regulation] (1999).<br />
*GAO/GGD-94-28, [https://www.gao.gov/assets/220/218925.pdf Regulatory Burden: Recent Studies, Industry Issues, and Agency Initiatives] (1993).<br />
*GAO/GGD-97-2, [https://www.gao.gov/assets/160/155661.pdf Regulatory Burden: Measurement Challenges and Concerns Raised by Selected Companies] (1996).<br />
*GAO/RCED-98-142, [https://www.gao.gov/assets/160/156173.pdf Regulatory Reform: Agencies Could Improve Development, Documentation, and Clarity of Regulatory Economic Analysis] (1998).<br />
*GAO/GGD-98-31, [https://www.gao.gov/assets/230/225071.pdf Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always Clearly Documented] (1998).<br />
*GAO/ PEMD-95-18BR, [https://www.gao.gov/assets/80/78970.pdf Regulatory Reform: Information on Costs, Cost-Effectiveness, and Mandated Deadlines for Regulations] (1995).<br />
*GAO-03-1015, [https://www.gao.gov/assets/240/239832.pdf Regulatory Takings: Implementation of Executive Order on Government Actions Affecting Private Property Use] (2003).<br />
*GAO-03-929, [https://www.gao.gov/assets/160/157476.pdf Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews] (2003).<br />
*GAO-05-289, [https://www.gao.gov/assets/250/247171.pdf Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules] (2005).<br />
*GAO-09-205, [https://www.gao.gov/assets/290/288538.pdf Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews] (2009).<br />
*GAO-13-588, [https://www.gao.gov/assets/660/656488.pdf International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency Guidance] (2013).<br />
*GAO-14-423T, [https://www.gao.gov/assets/670/661540.pdf Federal Rulemaking: Regulatory Review Processes Could Be Enhanced] (2014).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-14-519, [https://www.gao.gov/assets/670/664872.pdf Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses] (2014).<br />
*GAO-14-714, [https://www.gao.gov/assets/670/665745.pdf Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent] (2014).<br />
*GAO-15-368, [https://www.gao.gov/assets/670/669688.pdf Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices] (2015).<br />
*GAO-15-718, [https://www.gao.gov/assets/680/672572.pdf Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees] (2015).<br />
*GAO-16-720, [https://www.gao.gov/assets/680/679518.pdf Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance] (2016).<br />
*GAO-18-22, [https://www.gao.gov/assets/690/687875.pdf Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions] (2017).<br />
*GAO-18-183, [https://www.gao.gov/assets/700/690624.pdf Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance During and at the End of Presidents’ Terms] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Office of Legal Counsel, ''Op. on Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498''.<br />
*Office of Legal Counsel, Memorandum from Larry L. Simms, Acting Assistant Attorney General, [https://www.justice.gov/file/22586/download Proposed Executive Order Entitled “Federal Regulation,”] 5 Op. O.L.C. 59 (1981).<br />
*Council on Envtl. Quality, [https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).<br />
*Envtl. Protection Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/contsetc.pdf The Benefits and Costs of the Clean Air Act, 1970-1990]—Draft Report for Congress (April 1997).<br />
*Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, [https://ws680.nist.gov/publication/get_pdf.cfm?pub_id=200118 Tenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment] (2007).<br />
*Office of the Vice President, ''Creating a Government That Works Better and Costs Less, Improving Regulatory Systems'', National Performance Review (1993).<br />
*Statement #18, [https://www.acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf Improving the Timeliness of OIRA Regulatory Review], 78 Fed. Reg. 76275 (Dec. 17, 2013).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''OIRA Thirtieth Anniversary Conference'', 63 Admin. L. Rev. (special ed.) (2011).<br />
*ABA Section of Admin. Law & Regulatory Practice, [https://www.americanbar.org/content/dam/aba/administrative/administrative_law/Final%20POTUS%20Report%2010-26-16.authcheckdam.pdf Report: Improving the Administrative Process: A Report to the President-Elect of the United] (2016), 69 Admin. L. Rev. 205 (2017).<br />
*Rebecca Adams, ''Regulating the Rule-Makers: John Graham at OIRA'', CQ Weekly 520 (Feb. 23, 2002).<br />
*Joseph E. Aldy, [https://www.acus.gov/sites/default/files/documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy] (Nov. 17, 2014) (report to ACUS).<br />
*Robert A. Anthony, ''Executive Order, OMB Bulletin Focus on Guidances'', 32 Admin. L. & Reg. News 10, Spring 2007.<br />
*William D. Araiza, ''Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking'', 54 Admin. L. Rev. 611 (2002).<br />
*Donald R. Arbuckle, ''Obscure But Powerful: Who Are Those Guys?'', 63 Admin. L. Rev. 131 (special ed.) (2011).<br />
*Nicholas Bagley & Richard L. Revesz, ''Centralized Oversight of the Regulatory State'', 106 Colum. L. Rev. 1260 (2006).<br />
*Stephen J. Balla, Jennifer M. Deets, & Forrest Maltzman, ''Outside Communications and OIRA Review of Agency Regulations'', 63 Admin. L. Rev. 149 (special ed.) (2011).<br />
*Rachel Bayefsky, Note, [https://www.yalelawjournal.org/pdf/1732.Bayefsky.1782_u52fptmb.pdf Dignity as a Value in Agency Cost-Benefit Analysis], 123 Yale L.J. 1732 (2014).<br />
*Josh Blackman, [https://illinoislawreview.org/wp-content/uploads/2018/03/Blackman.pdf Presidential Maladministration], 2018 U. Ill. L. Rev. 397 (2018).<br />
*James F. Blumstein, ''Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues'', 51 Duke L. J. 851 (2001).<br />
*Alexander Bolton, Rachel Augustine Potter, & Sharece Thrower, ''Organizational Capacity, Regulatory Review, and the Limits of Political Control'', 32 J. L. Econ. & Org. 242 (2016).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1490&context=mlr Inside the Administrative State: A Critical Look at the Practice of Presidential Control], 105 Mich. L. Rev. 47 (2006).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1445&context=mlr Legitimacy, Selectivity, and the Disunitary Executive: A Reply to Sally Katzen], 105 Mich. L. Rev. 1511 (2007).<br />
*Harold H. Bruff, ''Presidential Management of Agency Rulemaking'', 57 Geo. Wash. L. Rev. 533 (1989).<br />
*Reeve T. Bull, ''Building a Framework for Governance: Retrospective Review and Rulemaking Petitions'', 67 Admin. L. Rev. 265 (2015).<br />
*Ming H. Chen, ''Administrator-in-Chief: The President and Executive Action in Immigration Law'', 69 Admin. L. Rev. 347 (2017).<br />
*John C. Coates IV, [https://www.yalelawjournal.org/pdf/a.882.Coates.1011_owe353wf.pdf Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications], 124 Yale L.J. 882 (2015).<br />
*Cary Coglianese, [http://yalejreg.com/moving-forward-with-regulatory-lookback/ Moving Forward with Regulatory Lookback], 30 Yale J. on Reg. Online 57 (2013).<br />
*Cary Coglianese, ''The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State'', 69 Admin. L. Rev. 43 (2017).<br />
*Cary Coglianese, [http://www.aulawreview.org/au_law_review/wp-content/uploads/2018/02/02-Coglianese_67AMULREV733.pdf Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel Cole, [https://www.law.ua.edu/pubs/lrarticles/Volume%2064/Issue%201/2%20Cole%2055%20-%2089.pdf Law, Politics, and Cost-Benefit Analysis], 64 Ala. L. Rev. 55 (2012).<br />
*John Conyers, Jr., Henry C. Johnson, Jr., & David N. Cicilline, [http://harvardjol.com/wp-content/uploads/2017/05/HLL201-1.pdf The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration], 54 Harv. J. on Legis. 365 (2017).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Final%20BCA%20Report%204-30-13.pdf Economic Analysis and Independent Regulatory Agencies] (Apr. 30, 2013) (report to ACUS).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Report%20CIRCULATED%20to%20Committees%20on%2010-21-13.pdf Length of Rule Reviews by the Office of Information and Regulatory Affairs] (Oct. 7, 2013) (report to ACUS).<br />
*Curtis Copeland, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2208&context=ulj The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking], 33 Fordham Urb. L.J. 1257 (2006).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Draft%20Report%20041315%20FINAL_0.pdf The Unified Agenda: Proposals for Reform] (Apr. 13, 2015) (report to ACUS).<br />
*Robin Kundis Craig, ''The Bush Administration’s Use and Abuse of Rulemaking. Part I: The Rise of OIRA'', 28 Admin. & Reg. L. News 8 (Summer 2003).<br />
*Stephen Croley, ''White House Review of Agency Rulemaking: An Empirical Investigation'', 70 U. Chi. L. Rev. 821 (2003).<br />
*Nestor M. Davidson &. Ethan J. Lieb, [https://georgetownlawjournal.org/articles/64/regleprudence/pdf Regleprudence—At OIRA and Beyond], 103 Geo. L.J. 259 (2015).<br />
*Christopher C. DeMuth & Douglas H. Ginsburg, ''White House Review of Agency Rulemaking'', 99 Harv. L. Rev. 1075 (1986).<br />
*Christopher DeMuth, ''OIRA at Thirty'', 63 Admin. L. Rev. 15 (special ed.) (2011).<br />
*Caroline DeWitt, Comment, ''The Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review'', 6 Admin. L. J. Am. U. 759 (1993).<br />
*Susan E. Dudley, ''Observations on OIRA’s Thirtieth Anniversary'', 63 Admin. L. Rev. 113 (special ed.) (2011).<br />
*Susan E. Dudley, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1006&context=caselrev Improving Regulatory Accountability: Lessons From the Past and Prospects for the Future], 65 Case W. Res. L. Rev. 1027 (2015).<br />
*E. Donald Elliott, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4231&context=lcp TQM’ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It], 57 Law & Contemp. Probs. 167 (1994).<br />
*Blake Emerson & Cheryl Blake, [https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20Drafting_Final%20Report.pdf Plain Language in Regulatory Drafting] (Dec. 8, 2017) (report to ACUS).<br />
*Jaclyn L. Falk, Comment, [https://cpb-us-w2.wpmucdn.com/usfblogs.usfca.edu/dist/7/272/files/2014/09/The-Behind-Closed-Door-Policy-Executive-Influence-in-the-Environmental-Protection-Agencys-Informal-Rulemaking.pdf The Behind Closed Door Policy: Executive Influence in the Environmental Protection Agency’s Informal Rulemaking], 47 U.S.F. L. Rev. 593 (2013).<br />
*Cynthia R. Farina, ''Undoing the New Deal Through the New Presidentialism'', 22 Harv. J. L. & Pub. Pol’y 227 (1998).<br />
*Scott Farrow, ''Improving Regulatory Performance: Does Executive Office Oversight Matter?'' (2001).<br />
*Arthur Fraas, ''Observations on OIRA’s Policies and Procedures'', 63 Admin. L. Rev. (special ed.) 79 (2011).<br />
*Arthur Fraas & Randall Lutter, ''On the Economic Analysis of Regulations at Independent Regulatory Commissions'', 63 Admin. L. Rev. 213 (special ed.) (2011).<br />
*Jody Freeman & Jim Rossi, [https://www.acus.gov/sites/default/files/documents/Freeman-Rossi-ACUS-Report-5-30-12-PDF.pdf Improving Coordination of Related Agency Responsibilities] (May 30, 2012) (report to ACUS).<br />
*William Funk “Agency Oversight by the Political Branches,” ch. 11 in Section on Administrative Law and Regulatory Practice, ''A Guide to Judicial and Political Review of Federal Agencies'' 259-304 (2d ed. Michael E. Herz, Richard Murphy & Kathryn Watts eds., 2015).<br />
*Margaret Gilhooley, [https://journals.iupui.edu/index.php/inlawrev/article/view/2956/2879 Executive Oversight of Administrative Rulemaking: Disclosing the Impact], 25 Ind. L. Rev. 299 (1991).<br />
*John D. Graham & Cory R. Liu, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_425_Graham_Liu-1.pdf Regulatory and Quasi-Regulatory Activity Without OMB and Cost-Benefit Review], 37 Harv. J.L. & Pub. Pol’y 425 (2014).<br />
*John D. Graham, Paul R. Noe & Elizabeth L. Branch, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2198&context=ulj Managing the Regulatory State: The Experience of the Bush Administration], 33 Fordham Urb. L. J. 953 (2006).<br />
*Wendy L. Gramm, ''Regulatory Review Issues, October 1985–February 1988'', 63 Admin. L. Rev. 27 (special ed.) (2011).<br />
*Abner S. Greene, ''Checks and Balances in an Era of Presidential Lawmaking'', 61 U. Chi. L. Rev. 123 (1994).<br />
*Robert W. Greene, [https://rutgerspolicyjournal.org/sites/jlpp/files/Greene.pdf Improving U.S. Financial Regulation Through OIRA Review & Robust Regulatory Analysis Standards], 14 Rutgers J.L. & Pub. Pol’y 89 (2016).<br />
*Sarah Grimmer, Note, ''Public Controversy Over Peer Review'', 57 Admin. L. Rev. 275 (2005).<br />
*Zachary J. Gubler, [https://www.acus.gov/sites/default/files/documents/ZGubler%20ACUS%20Final%20Report%2811-17%29.pdf Regulatory Experimentation] (Nov. 17, 2017) (report to ACUS).<br />
*Hiba Hafiz, [http://wisconsinlawreview.org/wp-content/uploads/2018/01/Hafiz-Final.pdf Economic Analysis of Labor Regulation], 2017 Wis. L. Rev. 1115 (2017).<br />
*Robert W. Hahn, Risks, ''Costs, and Lives Saved: Getting Better Results From Regulation'', (Oxford Univ. Press & AEI Press, 1996).<br />
*Robert W. Hahn & John A. Hird, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1177&context=yjreg The Costs and Benefits of Regulation: Review and Synthesis], 8 Yale J. on Reg. 233 (1991).<br />
*Lisa Heinzerling, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2202&context=ulj Statutory Interpretation in the Era of OIRA], 33 Fordham Urb. L. J. 1097 (2006).<br />
*Lisa Heinzerling, [https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1741&context=pelr Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House], 31 Pace Envtl. L. Rev. 325 (2014).<br />
*Thomas D. Hopkins, ''The Evolution of OIRA Oversight—CWPS to OIRA'', 63 Admin. L. Rev. 71 (special ed.) (2011).<br />
*Elena Kagan, ''Presidential Administration'', 114 Harv. L. Rev. 2245 (2001).<br />
*Sally Katzen, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1444&context=mlr A Reality Check on an Empirical Study: Comments on “Inside the Administrative State,”] 105 Mich. L. Rev. 1497 (2007).<br />
*Sally Katzen, ''OIRA at Thirty: Reflections and Recommendations'', 63 Admin. L. Rev. 103 (special ed.) (2011).<br />
*Cornelius M. Kerwin & Scott R. Furlong, ''Rulemaking: How Government Agencies Write Law and Make Policy'' (CQ Press, 4th ed. 2011).<br />
*Peter Ketcham-Colwill, [https://www.gwlr.org/wp-content/uploads/2018/02/82-Geo.-Wash.-L.-Rev.-1622.pdf Presidential Influence Over Agency Rulemaking Through Regulatory Review], 82 Geo. Wash. L. Rev. 1622 (2014).<br />
*Robert E. Litan & William D. Nordhaus, ''Reforming Federal Regulation'' (Yale Univ. Press, 1983).<br />
*Michael A. Livermore, [http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/Livermore_Art.pdf Cost-Benefit Analysis and Agency Independence], 81 U. Chi. L. Rev. 609 (2014).<br />
*Michael A. Livermore & Richard L. Revesz, [https://georgetownlawjournal.org/articles/119/regulatory-review-capture-agency/pdf Regulatory Review, Capture, and Agency Inaction], 101 Geo. L.J. 1337 (2013)<br />
*Jeffrey S. Lubbers, ''A Guide to Federal Agency Rulemaking'' (ABA Section of Admin. Law & Regulatory Practice, 5th ed. 2012).<br />
*Jeffrey S. Lubbers, ''OMB to Require Peer Review for Regulatory Science Documents'', 29 Admin. L. & Reg. News 3, Fall 2003.<br />
*Maureen Mahon, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1179&context=law_lawreview Proceed With Caution: The Implications of the OMB Peer Review Guidelines on Precautionary Legislation], 84 Wash. U. L. Rev. 461 (2006).<br />
*Jonathan S. Masur & Eric A. Posner, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4712&context=clr Unquantified Benefits and the Problem of Regulation Under Uncertainty], 102 Cornell L. Rev. 87 (2016).<br />
*Randolph J. May, ''OMB’s Peer Review Proposal—Swamped by Science?'', 29 Admin. & Reg. L. News 4, Spring 2004.<br />
*Michael McCarthy, [https://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91-1] (Oct. 19, 2011) (report to ACUS).<br />
*Thomas O. McGarity, ''Presidential Control of Regulatory Agency Decisionmaking'', 36 Am. U. L. Rev. 443 (1987).<br />
*Thomas O. McGarity, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1538&context=dlj Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age], 61 Duke L.J. 1671 (2012).<br />
*Patrick A. McLaughlin & Jerry Ellig, ''Does OIRA Review Improve the Quality of Regulatory Impact Analysis? Evidence from the Final Year of the Bush II Administration'', 63 Admin. L. Rev. 179 (special ed.) (2011).<br />
*Emily Hammond Meazell, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1539&context=dlj Presidential Control, Expertise, and the Deference Dilemma], 61 Duke L.J. 1763 (2012).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1208&context=articles Disclosing “Political” Oversight of Agency Decision Making], 108 Mich. L. Rev. 1127 (2010).<br />
*Nina Mendelson, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Mendelson_May.pdf Another Word on the President’s Statutory Authority over Agency Action], 79 Fordham L. Rev. 2455 (2011).<br />
*Nina A. Mendelson & Jonathan B. Wiener, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_447_Mendelson_Wiener.pdf Responding to Agency Avoidance of OIRA], 37 Harv. J.L. & Pub. Pol’y 447 (2014).<br />
*Gillian E. Metzger & Kevin M. Stack, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mlr Internal Administrative Law], 115 Mich. L. Rev. 1239 (2017).<br />
*James C. Miller III, ''The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future'', 63 Admin. L. Rev. 93 (special ed.) (2011).<br />
*Alan B. Morrison, ''OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation'', 99 Harv. L. Rev. 1059 (1986).<br />
*William A. Niskanen, ''Clinton Regulation Will Be “Rational”: Interview with Sally Katzen, the New OIRA Administrator'', Regulation Magazine No. 3, at 36 (1993).<br />
*Lars Noah, ''Peer Review and Regulatory Reform'', 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,606 (2000).<br />
*Paul Noe, ''Analyzing the Destruction of Human Capital by Regulations'', 63 Admin. L. Rev. 203 (special ed.) (2011).<br />
*Note, ''Regulatory Analyses and Judicial Review of Informal Rulemaking'', 91 Yale L. J. 739 (1982).<br />
*Note, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol124_%20OIRA%20_avoidance.pdf OIRA Avoidance], 124 Harv. L. Rev. 994 (2011).<br />
*Note, ''The Inflation Impact Statement Program: An Assessment of the First Two Years'', 26 Am. U. L. Rev. 1138 (1977).<br />
*Jennifer Nou, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_nou.pdf Agency Self-Insulation Under Presidential Review], 126 Harv. L. Rev. 1755 (2013).<br />
*Jennifer Nou & Edward H. Stiglitz, [https://southerncalifornialawreview.com/wp-content/uploads/2018/01/89_733.pdf Strategic Rulemaking Disclosure], 89 S. Cal. L. Rev. 733 (2016).<br />
*Anne Joseph O’Connell, [http://www.virginialawreview.org/sites/virginialawreview.org/files/889.pdf Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State], 94 Va. L. Rev. 889 (2008).<br />
*Erik D. Olson, ''The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291'', 4 Va. J. Nat. Resources L. 1 (1984).<br />
*Eloise Pasachoff, [https://www.yalelawjournal.org/pdf/a.2182.Pasachoff.2290_aqo1aub4.pdf The President’s Budget as a Source of Agency Policy Control], 125 Yale L.J. 2182 (2016).<br />
*Robert V. Percival, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1148&context=dlj Presidential Management of the Administrative State: The Not-So-Unitary Executive], 51 Duke L. J. 963 (2001).<br />
*Robert V. Percival, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Percival_May.pdf Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?], 79 Fordham L. Rev. 2487 (2011).<br />
*Richard J. Pierce, Jr., [http://www.nyujlpp.org/wp-content/uploads/2016/06/Pierce-Regulatory-Budget-Debate-19nyujlpp249.pdf The Regulatory Budget Debate], 19 N.Y.U. J. Legis. & Pub. Pol’y 249 (2016).<br />
*Eric A. Posner & E. Glen Weyl, [https://www.yalelawjournal.org/pdf/Posner-WeylPDF_ijby4z9e.pdf Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms], 124 Yale L.J. Forum 246 (2015).<br />
*Robert L. Rabin, ''Federal Regulation in Historical Perspective'', 38 Stan L. Rev. 1189 (1986).<br />
*Richard L. Revesz, [http://yalejreg.com/articlepdfs/34-JREG-545.pdf Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation], 34 Yale J. On Reg. 545 (2017).<br />
*Richard L. Revesz, [http://www.californialawreview.org/wp-content/uploads/2014/12/02-Revesz.pdf Quantifying Regulatory Benefits], 102 Cal. L. Rev. 1423 (2014).<br />
*Richard L. Revesz & Michael A. Livermore, ''Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health'' (Oxford Univ. Press 2008).<br />
*Delissa Ridgway et al., ''The Council on Competitiveness and Regulatory Review: A “Kinder, Gentler” Approach to Regulation?'', 6 Admin. L. J. Am. U. 691 (1993).<br />
*David B. Rivkin, ''The Unitary Executive and Presidential Control of Executive Branch Rulemaking'', 7 Admin. L. J. Am. U. 309 (1993).<br />
*Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291'', 80 Mich. L. Rev. 193 (1981).<br />
*Arden Rowell, [https://www.law.uci.edu/lawreview/vol4/no4/Rowell.pdf Time in Cost-Benefit Analysis], 4 UC Irvine L. Rev. 1215 (2014).<br />
*Susan Rose-Ackerman, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1153&context=umlr Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review], 65 U. Miami L. Rev. 335 (2011).<br />
*Andrew Rudalevige, [http://lawreview.syr.edu/wp-content/uploads/2015/09/G-Rudalevige-For-Website.pdf Old Laws, New Meanings: Obama’s Brand of Presidential “Imperialism”], 66 Syracuse L. Rev. 1 (2016).<br />
*J.B. Ruhl & James Salzman, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1170&context=law_lawreview In Defense of Regulatory Peer Review], 84 Wash. U. L. Rev. 1 (2006).<br />
*Thomas O. Sargentich, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/The-Emphasis-on-the-Presidency-in-U.S.-Public-Law-An-Essay-Critiquing-Presidential-Administration.pdf The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration], 59 Admin. L. Rev. 1 (2007).<br />
*Peter M. Shane, ''Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking'', 48 Ark. L. Rev. 161 (1995).<br />
*David R. Sheaffer, [https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1178&context=lr The Price of Regulation: Rethinking Executive Review of Agency Rulemaking], 2016 Mich. St. L. Rev. 1091 (2016).<br />
*Sidney Shapiro, [https://www.acus.gov/sites/default/files/documents/gov.acus_.1995.rec_.95-3.pdf Agency Review of Existing Regulations] (Jan. 15, 1995) (report to ACUS).<br />
*Sidney A. Shapiro, ''OMB’s Dubious Peer Review Procedures'', 34 Envtl. L. Rep. (Envtl. L. Inst.) 10,064 (2004).<br />
*Sidney A. Shapiro, ''OMB’s Revised Peer Review Bulletin'', 29 Admin. L. & Reg. News 10 (Summer 2004).<br />
*Sidney A. Shapiro & Richard Murphy, [https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Shapiro-Murphy.pdf Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation], 48 U.C. Davis L. Rev. 1457 (2015).<br />
*Sidney A. Shapiro & Ronald F. Wright, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1160&context=umlr The Future of the Administrative Presidency: Turning Administrative Law Inside-Out], 65 U. Miami L. Rev. 577 (2011).<br />
*Stuart Shapiro, ''OIRA Inside and Out'', 63 Admin. L. Rev. 135 (special ed.) (2011).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Stuart Shapiro & Debra Borie-Holtz, ''The Politics of Regulatory Reform'' (Routledge 2013).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS).<br />
*Peter L. Strauss, ''Overseer or “The Decider”? The President in Administrative Law'', 75 Geo. Wash. L. Rev. 696 (2007).<br />
*Peter L. Strauss, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=caselrev The President and the Constitution], 65 Case W. Res. L. Rev. 1151 (2015).<br />
*Peter L. Strauss & Cass R. Sunstein, ''The Role of the President and OMB in Informal Rulemaking'', 38 Admin. L. Rev. 181 (1986).<br />
*Cass R. Sunstein, Simpler: ''The Future of Government'' (Simon & Schuster, 2013).<br />
*Cass R. Sunstein, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_sunstein.pdf The Office of Information and Regulatory Affairs: Myths and Realities], 126 Harv. L. Rev. 1838 (2013).<br />
*Cass R. Sunstein, [http://www.bu.edu/bulawreview/files/2014/08/SUNSTEINDYSFUNCTION.pdf The Regulatory Lookback], 94 B.U. L. Rev. 579 (2014).<br />
*Jim Tozzi, ''OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding'', 63 Admin. L. Rev. 37 (special ed.) (2011).<br />
*Paul R. Verkuil, ''Jawboning Administrative Agencies: Ex Parte Contacts by the White House'', 80 Colum. L. Rev. 943 (1980).<br />
*Christopher J. Walker, ''Modernizing the Administrative Procedure Act'', 69 Admin. L. Rev. 629 (2017).<br />
*Adam L. Warber, ''Executive Orders and the Modern Presidency: Legislating from the Oval Office'' (Lynne Reiner Publishers 2006).<br />
*Kathryn A. Watts, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1240&context=mlr Controlling Presidential Control], 114 Mich. L. Rev. 683 (2016).<br />
*Christopher E. Wilson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Not-Good-Enough-for-Government-Work-How-OMBs-Good-Guidance-Practices-May-Unintentionally-Complicate-Administrative-Law.pdf Comment: Not Good Enough for Government Work: How OMB’s Good Guidance Practices May Unintentionally Complicate Administrative Law], 59 Admin. L. Rev. 177 (2007).<br />
</div><br />
<br />
===Miscellaneous===<br />
<br />
*National Academy of Public Administration, ''Presidential Management of Rulemaking in Regulatory Agencies'' (1987).<br />
*[http://www.thecre.com/ombpapers/featuredarticles.html Center for Regulatory Effectiveness].<br />
*Competitive Enterprise Institute, [https://cei.org/10KC Ten Thousand Commands].</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Rulemaking_Requirements_from_the_Executive_Office_of_the_President&diff=1690Rulemaking Requirements from the Executive Office of the President2023-08-15T21:38:43Z<p>MGluth: </p>
<hr />
<div>This section discusses the most significant presidential Executive Orders, Bulletins, and Memoranda, which pertain to the rulemaking process or federal regulation. Other executive orders and memoranda may be found in other sections, e.g., those relating to the [[Federal Advisory Committee Act]].<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)], [https://www.whitehouse.gov/omb/ Office of Management and Budget (OMB)]<br />
<br />
==Executive Orders==<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Executive Order 12372, [https://www.archives.gov/federal-register/codification/executive-order/12372.html Intergovernmental Review of Federal Programs], 47 Fed. Reg. 30959 (July 16, 1982).<br />
*Executive Order 12630, [https://www.archives.gov/federal-register/codification/executive-order/12630.html Governmental Actions and Interference with Constitutionally Protected Property Rights], 53 Fed. Reg. 8859 (Mar. 18, 1988).<br />
*Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 ( Oct. 4, 1993).<br />
*Executive Order 12889, [https://www.govinfo.gov/content/pkg/WCPD-1994-01-03/pdf/WCPD-1994-01-03-Pg2639.pdf Implementation of the North American Free Trade Agreement], 58 Fed. Reg. 69681 (Dec. 30, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations], 59 Fed. Reg. 7629 (Feb. 16, 1994).<br />
*Executive Order 12988, [https://www.govinfo.gov/content/pkg/WCPD-1996-02-12/pdf/WCPD-1996-02-12-Pg189.pdf Civil Justice Reform], 61 Fed. Reg. 4729 (Feb. 7, 1996).<br />
*Executive Order 13045, [https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Protection of Children from Environmental Health Risks and Safety Risks], 62 Fed. Reg. 19885 (Apr. 23, 1997).<br />
*Executive Order 13132, [https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Federalism], 64 Fed. Reg. 43255 (Aug. 10, 1999).<br />
*Executive Order 13175, [https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
*Executive Order 13211, [https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use], 66 Fed. Reg. 28355 (May 22, 2001).<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 16, 2002).<br />
*Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review], 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming Executive Order 12866).<br />
*Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], 76 Fed. Reg. 41587 (July 14, 2011).<br />
*Executive Order 13609, [https://www.govinfo.gov/content/pkg/FR-2012-05-04/pdf/2012-10968.pdf Promoting International Regulatory Cooperation], 77 Fed. Reg. 26413 (May 4, 2012).<br />
*Executive Order 13610, [https://www.govinfo.gov/content/pkg/FR-2012-05-14/pdf/2012-11798.pdf Identifying and Reducing Regulatory Burdens], 77 Fed. Reg. 28469 (May 14, 2012).<br />
*Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People], 80 Fed. Reg. 56356 (Sept. 18, 2015).<br />
*Executive Order 13725, [https://www.govinfo.gov/content/pkg/FR-2016-04-20/pdf/2016-09346.pdf Steps to Increase Competition and Better Inform Consumers and Works to Support Continued Growth of the American Economy], 81 Fed. Reg. 23417 (Apr. 20, 2016).<br />
*Executive Order 14094, [https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf Modernizing Regulatory Review], 88 Fed. Reg. 21,879 (Apr. 11, 2023).<br />
</div><br />
<br />
==Table of Executive Order Requirements==<br />
{| class="wikitable"<br />
|+<br />
!Executive Order (EO)<br />
!Date and Administration of Issue<br />
!Action Items<br />
!Does the EO Contain a Statement Regarding Applicability to Independent Agencies?<br />
|-<br />
|[https://www.archives.gov/federal-register/codification/executive-order/12630.html EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights]<br />
|1988 - Reagan<br />
|''General Principles''. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” <br />
<br />
<br />
''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.”<br />
<br />
''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.<br />
<br />
<br />
''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).<br />
<br />
<br />
''Ensuring Compliance.'' OMB and the Department of Justice are responsible for ensuring compliance with the EO.<br />
|No<br />
|-<br />
|[https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf EO 12866 - Regulatory Planning and Review]<br />
|1993 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12889.pdf EO 12889 - Implementation of the North American Free Trade Agreement]<br />
|1993 - Clinton<br />
|''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.”<br />
<br />
<br />
''Exceptions''<br />
<br />
#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)).<br />
#Perishable Goods. Technical regulations relating to perishable goods.<br />
#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.<br />
#Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection.<br />
<br />
''Definitions''<br />
<br />
#Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7).<br />
#Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7).<br />
|No<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf EO 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations]<br />
|1994 - Clinton<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1996-02-07/pdf/96-2755.pdf EO 12988 - Civil Justice Reform]<br />
|1996- Clinton<br />
|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.<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks]<br />
|1997 - Clinton<br />
|''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.”<br />
''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:<br />
<br />
#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.”<br />
#Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/pdf/99-20729.pdf EO 13132 - Federalism]<br />
|1999 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf EO 13175 - Consultation and Coordination with Indian Tribal Governments]<br />
|2000 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2001-05-22/pdf/01-13116.pdf EO 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use]<br />
|2001 - Bush<br />
|''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.<br />
<br />
<br />
''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. <br />
<br />
<br />
''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. <br />
<br />
<br />
''Publication.'' Agencies must publish the Statement or a summary in the related NPRM and final rule.<br />
|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 . . . ."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2002-08-16/pdf/02-21056.pdf EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking]<br />
|2002 - Bush<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf EO 13563 - Improving Regulation and Regulatory Review]<br />
|2011 - Obama<br />
|''General Principles.'' This EO supplements and reaffirms [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 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.<br />
<br />
<br />
''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.”<br />
<br />
<br />
''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.”<br />
<br />
<br />
''Flexible Approaches.'' Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.”<br />
<br />
<br />
''Objectivity with regard to scientific information.'' Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking.<br />
<br />
<br />
''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.”<br />
|Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review <nowiki>[EO] 12866</nowiki>]."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf EO 13579 - Regulation and Independent Regulatory Agencies]<br />
|2011 - Obama<br />
|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 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.”<br />
|Yes. The EO is entirely geared toward independent agencies.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-04/pdf/2012-10968.pdf EO 13609 - Promoting International Regulatory Cooperation]<br />
|2012 - Obama<br />
|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.<br />
|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.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf EO 13610 - Identifying and Reducing Regulatory Burdens]<br />
|2012 - Obama<br />
|Agencies are instructed to institutionalize regular reviews of their previously 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.<br />
|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)."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2016-04-20/pdf/2016-09346.pdf EO 13725 - Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy]<br />
|2016 - Obama<br />
|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. <br />
|Yes. See § 3(b) for relevant text: "Independent agencies are strongly encouraged to comply with the requirements of this order."<br />
|-<br />
|[https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ EO 14094 - Modernizing Regulatory Review]<br />
|2023 - Biden<br />
|Agencies should affirmatively promote public participation in rulemaking and proactively engage interested parties. Regulatory analysis should recognize distributive impacts and equity.<br />
|No.<br />
|}<br />
<br />
==Other White House Bulletins and Memoranda==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-119-1.pdf Federal Participation in the Development and Use of Voluntary Standards and in Conformity Assessment Activities] (1998).<br />
*[https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf Plain Language in Government Writing] (1998).<br />
*[https://obamawhitehouse.archives.gov/omb/inforeg_oira_review_process/ Presidential Review of Agency Rulemaking by OIRA] (2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf Circular No. A-4, New Guidelines for the Conduct of Regulatory Analysis] (2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf Circular A-4, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/CircularA94.pdf Circular A-94, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf Implementation of Modernizing Regulatory Review Executive Order] (Apr. 6, 2023).<br />
*M-05-03, [https://obamawhitehouse.archives.gov/omb/memoranda_fy2005_m05-03 Final Information Quality Bulletin for Peer Review] (2004).<br />
*[https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf Final Bulletin for Agency Good Guidance Practices] (2007).<br />
*M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf Updated Principles for Risk Analysis](2007).<br />
*M-19-14, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf Guidance on Compliance with the Congressional Review Act] (2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01866.pdf Modernizing Regulatory Review] (2021)<br />
</div><br />
<br />
==Overview==<br />
===History of Presidential Oversight of Rulemaking and Regulation===<br />
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. <br />
<br />
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.<br />
<br />
In 1974, President Ford issued an executive order requiring executive branch agencies to prepare an “inflation impact statement” for each “major” federal action. 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” rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to COWPS upon publication of the NPRM. COWPS would review the IIS and, in its discretion, offer informal criticism of the proposal or participate in the public proceedings on the rule. <br />
<br />
President Carter continued presidential review of agency rules by means of Executive Order 12044, ''Improving Government Regulations'', issued in 1978. Under the order, executive agencies were required to: (1) publish semi-annual agendas, describing and giving the legal bases for, any “significant” regulations under development by the agency; (2) establish procedures to identify “significant” rules, to evaluate their need, and to have the agency head assure that the “least burdensome of the acceptable alternatives” was proposed; and (3) prepare a “regulatory analysis” that examined the cost-effectiveness of alternative regulatory approaches for “major rules.”<br />
<br />
President Carter also established a Regulatory Analysis Review Group to review the regulatory analyses prepared for a limited number of proposed “major” rules and to submit comments on the proposed rules during the public comment period. He created another rulemaking review body, the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. These efforts to coordinate agency rulemaking were challenged unsuccessfully in several lawsuits.<br />
<br />
President Reagan acted quickly after taking office to increase control over executive branch rulemaking. On February 17, 1981, the President issued an executive order on federal regulations designed “to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” The new Executive Order 12291, [https://www.archives.gov/federal-register/codification/executive-order/12291.html Federal Regulation], replaced Executive Order 12044, which President Reagan said had “proven ineffective.” <br />
<br />
Executive Order 12291 contained both substantive requirements and procedural steps to be followed in the development and promulgation of new rules. The [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)] in OMB was given responsibility for implementing Executive Order 12291. OMB’s rulemaking review function is supplemented by the powers it was given in the [[Paperwork Reduction Act]] of 1980, by which Congress statutorily established OIRA to, among other things, review and approve or disapprove agency “information collection requests.”<br />
<br />
The Office of Legal Counsel in the U.S. Department of Justice issued an [https://www.justice.gov/file/22586/download opinion] supporting the validity of Executive Order 12291. The opinion stated that the President’s authority to issue the order was based on his constitutional power to “take care that the laws be faithfully executed.” While concluding that any inquiry into Congressional intent in enacting specific rulemaking statutes “will usually support the legality of presidential supervision of rulemaking by Executive Branch agencies,” the opinion stated that presidential supervision of agency rulemaking “is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official.”<br />
<br />
Despite criticism of this new form of presidential review, President Reagan began his second term by expanding the program through Executive Order 12498, [https://www.archives.gov/federal-register/codification/executive-order/12498.html Regulatory Planning Process], which established a “regulatory planning process” with the purpose of helping to “ensure that each major step in the process of rule development is consistent with Administration policy.” <br />
<br />
According to OMB, the problem with regulatory review under Executive Order 12291 was that such review “often came late in the regulatory process, after huge investments of agency time and resources, and often after agency staff commitments to constituents had made it extremely difficult to consider any legally acceptable, but previously ignored, regulatory alternative.” This resulted, OMB said, in the “bureaucracy often present[ing] agency heads with faits accompli.” <br />
<br />
Executive Order 12498’s regulatory planning process was designed to avoid this problem. Under this procedure, the head of each agency was required to determine at the beginning of the regulatory process whether a proposed regulatory venture was “consistent with the goals of the Administration.” At the beginning of the year, Agency heads were to develop a plan for managing the agency’s most significant regulatory actions. OMB then reviewed the plan for consistency with the administration’s program and published the coordinated agency plans in a government-wide document. This document, entitled “Regulatory Program of the United States Government,” governed more than 20 major rulemaking agencies and was published each year during the second Reagan term and the Bush administration to inform Congress and the public of the government’s regulatory plans.<br />
<br />
President Reagan, in 1987 and 1988, issued three additional executive orders, dealing with federalism, interference with property rights (which is still in effect), and the family. OMB was given a role in ensuring coordination of regulatory policy in these areas. President Bush basically continued the program of presidential review of agency rulemaking established by President Reagan, although due to congressional opposition to OIRA actions, President Bush’s nominee to head OIRA was not confirmed. To counter this weakening of OIRA’s authority, President Bush created the Council on Competitiveness, headed by Vice President Quayle, and gave it authority to intervene in major agency rulemakings. Several of the Council’s interventions provoked intense criticisms leading up to the 1992 elections.<br />
<br />
===The Clinton Executive Order—Executive Order 12866===<br />
With the election of President Clinton, one of his first actions was an attempt to reestablish some bipartisan consensus on rulemaking review. His nominee as OIRA Administrator was the first subcabinet nominee to be appointed. Following the example of the Reagan Administration, President Clinton then set out to redraft the extant Executive Order and produced Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], on September 30, 1993. This Executive Order, which remains operative, carries over many of the principles of Executive Order 12291 and Executive Order 12498 and made some significant modifications that simplified the process, made it more selective, and introduced more transparency into the OMB/agency consultations. In drafting this Executive Order, the Clinton Administration followed many of the suggestions in ACUS [https://www.acus.gov/sites/default/files/documents/88-9.pdf Recommendation 88-9]. <br />
<br />
The Executive Order begins with a lengthy “Statement of Regulatory Philosophy and Principles,” which are quite similar to those in Executive Order 12291 except that it specifies that measurement of costs and benefits should include both quantifiable and qualitative measures. As with previous Orders, Executive Order 12866 retains the traditional (since 1978) level of $100 million annual effect on the economy for those major rules (now referred to as “economically significant” rules) that must be accompanied by cost-benefit assessments when forwarded to OIRA as proposed and final rules.<br />
<br />
Executive Order 12866 also retains the OIRA review process for other rules, although it only requires that “significant regulatory actions” be subject to review. This includes those $100 million rules plus others that have material adverse effects on “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” It also includes rules that may materially alter the budgetary impact of benefit programs or the rights of recipients, that raise “novel legal or policy issues,” or are inconsistent or interfere with actions taken by another agency. The process established for identifying such “significant regulatory actions” relies on agency identification of them in the first instance, vetted by OIRA. Rules that are not so identified may be issued without OIRA review. This selectivity streamlined the review process considerably and made it possible to include, for the first time, a deadline (of 90 days, with one 30-day extension allowed) for completion of OIRA review. In the event of an unresolved dispute between OIRA and the agency, the Vice President is directed to make the decision (or recommend one to the President).<br />
<br />
The review process set forth in the Executive Order made significant improvements in transparency. Following an ACUS recommendation closely, it provides that after the agency has concluded its rulemaking it should make available to the public all submissions to OIRA and identify all changes made in the rule, noting those made at the behest of OIRA. In addition, OIRA, for its part, must regularize the way it receives any outside communications concerning an agency rule that is subject to review. Only the Administrator or her designee may receive such communications. OIRA must forward any such communications to the agency within ten days, invite agency officials to any meetings held with outsiders, and maintain a public log of all such contacts. At the end of the proceeding OIRA must also make available all documents exchanged with the agency.<br />
<br />
In place of the Reagan Executive Order 12498 on regulatory planning, the Clinton Order establishes its own yearly planning mechanism. It continues the semiannual publication of the [https://www.reginfo.gov/public/do/eAgendaMain Unified Agenda of Regulatory and Deregulatory Actions], which lists all proposed, pending, and completed regulatory and deregulatory actions. And it requires that the October Agenda contain each agency’s annual Regulatory Plans, which must be approved personally by the agency head. These plans must be forwarded to OIRA (and then on to affected agencies, the Vice President and a group of named high-level White House Advisors) by June 1 of each year. The plans are supposed to also include agency determinations on which existing rules are to be reviewed and reconsidered during the ensuing year and “preliminary estimates of the anticipated costs and benefits” of each rule planned for that calendar year. These actions do not represent any sharp break from the practices of previous administrations. However, Executive Order 12866 is a departure in one regard—for the first time the independent regulatory agencies are specifically directed to comply with the planning and agenda provisions (though not with the rule-review process).<br />
<br />
The Clinton Executive Order was generally well received by most observers of the regulatory scene. Its basic approach has remained fundamentally unchanged since its issuance, and OIRA has worked out a stable and workable relationship with the agencies in administering it. The once rather vibrant legal and policy debate over the pros and cons of presidential review has gradually evolved into a fairly broad agreement that it is legal and, if properly administered, is essential to effective executive branch management. Nevertheless, there has been some serious criticism of OIRA’s failure to meet the deadlines set in the Order. <br />
<br />
President Clinton also issued a [https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf presidential directive on plain language] and number of other executive orders that remain in effect concerning: environmental justice in minority populations and low-income populations ([https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO12898envjustice.pdf Executive Order 12898]), civil justice reform ([https://www.govinfo.gov/content/pkg/FR-1996-02-07/pdf/96-2755.pdf Executive Order 12988]), protection of children from environmental risks ([https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Executive Order 13045]), federalism ([https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Executive Order 13132]), and consultation with Indian Tribal Governments ([https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Executive Order 13175]).<br />
<br />
President Bush continued the use of Executive Order 12866, although he did make several significant changes. In 2002, he made some small changes in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review], basically removing the Vice President from the process. In January 2007, in Executive Order 13422, [https://www.govinfo.gov/content/pkg/FR-2007-01-23/pdf/07-293.pdf Further Amendment to Executive Order 12866 on Regulatory Planning and Review], he made more fundamental changes. Most significantly he added a requirement that “significant guidance documents” also be reviewed by OIRA in a way similar to significant regulatory actions. He also required that agencies identify in writing specific “market failures” that necessitate a rulemaking, that agency Regulatory Policy Officers be presidential appointees, that these officers must approve the Regulatory Plan, that aggregate costs and benefits for all rules must be included in the Regulatory Plan, and that agencies consider whether to use “formal” (“on the record”) rulemaking for “complex determinations.” However, as mentioned below, President Obama, upon assuming office, revoked the Bush changes and reinstated the original Clinton order. However, by later memorandum, the requirement that significant guidance documents be reviewed by OIRA was reinstated.<br />
<br />
OIRA did issue a [https://georgewbush-whitehouse.archives.gov/omb/inforeg/oira_review-process.html memorandum] in September 2001 putting its own stamp on the Executive Order 12866 process. The memorandum describes the “general principles and procedures that will be applied by OMB in the implementation of Executive Order 12866 and related statutory and executive authority.”<br />
<br />
Significantly, during the Bush Administration, OIRA also announced several new initiatives in its review process. First, it made extensive use of its website to publish its guidelines and other information pertaining to its review process and specific rule reviews. This continues today. Second, it began the practice of issuing public “return letters” that send rules back to the agency for reconsideration, “review letters” that comment on aspects of a particular rule review, and “prompt letters,” which are sent on OMB’s initiative and contain suggestions for new or stronger regulations. While these letters are still posted on [https://www.reginfo.gov/public/do/eoReturnLetters reginfo.gov], the Obama and the Trump Administrations have made little use of this practice. <br />
<br />
More importantly, during the Bush Administration, OMB issued four far-reaching documents affecting the regulatory process that remain in effect today. In 2003 it issued a revised [https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/ OMB Circular A-4], which provides guidance on the development of regulatory analyses. OMB also issued a more far-reaching and controversial [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf Peer Review Bulletin] in December 2004, which requires administrative agencies to conduct a peer review on all “influential regulatory information that the agency intends to disseminate.” Finally, in 2007, OMB issued an important new government-wide [https://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/E7-1066.pdf Bulletin on Good Guidance Practices.] OMB also (along with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy]) issued a set of [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf#:~:text=In%201995%2C%20an%20interagency%20working%20group%2C%20co-chaired%20by,Information%20and%20Regulatory%20Affairs%20%28OIRA%29%2C%20remain%20valid%20today.f Updated Principles for Risk Analysis]. In so doing it declined to finalize a Proposed Risk Assessment Bulletin that the two agencies had issued in January 2006, in favor of updating the Clinton Administration’s Principles issued in 1995. Finally, President Bush issued two other executive orders concerning regulations that remain in effect today: (1) analysis of adverse effects on energy supply, distribution, or use ([https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Executive Order 13211]) and (2) proper consideration of small entities in agency rulemaking ([https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Executive Order 13272]). <br />
<br />
===Developments in the Obama Administration===<br />
Shortly after taking office, President Obama revoked the Bush Amendments to Executive Order 12866 and directed the Director of OMB, in consultation with regulatory agencies, to produce a set of recommendations for a new executive order on federal regulatory review within 100 days, followed by an unusual request for public comments on the same subject. Almost 200 public comments were received. <br />
<br />
After about a year of internal consideration, the White House finally settled on its approach to OMB review—basically to reaffirm Executive Order 12866—with Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review] on January 18, 2011. In Section 1(b), the Order stated: “This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.”<br />
<br />
It did contain a few new mandates and points of emphasis. Most notably, agencies were urged (as appropriate and within legal constraints) to (1) consider “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts”; (2) “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”; (3) “provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded”; (4) for proposed rules, provide “an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings”; (5) seek public input from affected persons “[b]efore issuing a notice of proposed rulemaking”; (6) “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice”; (7) “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned”; and (8) “[w]ithin 120 days of the date of this order, . . . develop and submit to [OIRA] a preliminary plan” for periodically reviewing “its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” <br />
<br />
The one action mandate in the new Executive Order was for agencies to develop plans for retrospective review of their existing regulations. On May 26, 2011, the OIRA Administrator announced the results of this effort. On July 11, 2011, President Obama issued Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], which extended the terms of Executive Order 13563 to independent regulatory agencies. On September 15, 2015, President Obama issued Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People]. Noting the value of insights from behavioral science to improve the “effectiveness and efficiency of Government.”<br />
<br />
===Developments in the Trump Administration===<br />
Shortly after taking office, President Trump issued Executive Order 13771, [https://www.govinfo.gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf Reducing Regulation and Controlling Regulatory Costs,] which requires agencies to identify at least two regulations to be repealed for every proposed or promulgated regulation. 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. The order directed the Director of OMB to provide agency heads with guidance addressing the processes for measuring regulatory costs, the costs of existing regulations, what qualifies as new and offsetting regulations, and situations that would require waivers of the order’s requirements. OIRA issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/M-17-21-OMB.pdf#:~:text=This%20guidance%2C%20in%20the%20form%20of%20Questions%20and,Regulatio%20ns.%20go%20v%20in%20docket%20ID%20OMB-2017-0002. Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs”] to assist agencies in carrying out these requirements.<br />
<br />
President Trump also issued Executive Order 13777, [https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf Enforcing the Regulatory Reform Agenda]. This order requires the head of each agency to designate an official as its Regulatory Reform Officer (RRO) who would implement initiatives and policies including Executive Order 13771, Executive Order 12866, and Section 6 of Executive Order 13563 regarding retrospective review. All agencies must also form a Regulatory Reform Task Force made up of the RRO, the Regulatory Policy Officer, a representative from the central policy office, and three senior agency officials if the agency is listed in 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 901(b)(1)] (the executive departments, EPA, and NASA), which “shall evaluate existing regulations . . . and make recommendations to the agency head regarding their repeal, replacement, or modification.” In making these determinations, the task forces should focus on regulations that (1) “eliminate jobs, or inhibit job creation;” (2) “are outdated, unnecessary, or ineffective;” (3) “impose costs that exceed benefits;” (4) “create serious inconsistency or otherwise interfere with regulatory initiatives and policies;” (5) “are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001, . . . in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or” (6) “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” The Executive Order also requires agency heads to prioritize regulations that the Regulatory Reform Task Force identifies as outdated, unnecessary, or ineffective when implementing regulatory offsets under Executive Order 13771.<br />
<br />
Finally, President Trump issued Executive Order 13783, [https://www.govinfo.gov/content/pkg/FR-2017-03-31/pdf/2017-06576.pdf Promoting Energy Independence and Economic Growth,] which directs agencies to review regulations that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” This order also revoked Executive Order 13653, [https://www.govinfo.gov/content/pkg/FR-2013-11-06/pdf/2013-26785.pdf Preparing the United States for the Impact of Climate Change], and memoranda under the Obama Administration related to climate change.<br />
<br />
===Developments in the Biden Administration===<br />
Within his first two months in office, President Biden rescinded several of President Trump’s executive orders related to the rulemaking process. In addition, President Biden issued a memorandum titled Modernizing Regulatory Review. This memorandum explicitly reaffirms Executive Orders 12,866 and 13,563. Additionally, it directs the OMB Director to work with agencies to produce a set of recommendations that improves and modernizes regulatory review. The memorandum specifies that these recommendations should include concrete suggestions on how the regulatory review process can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Furthermore, the memorandum specifies that the recommendations should, among other actions, include proposed reforms to Circular A-4 to promote these goals; suggest procedures that take into account distributional impacts in regulatory analyses; propose how OIRA can partner with agencies to “explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits”; and determine an appropriate approach to the review of guidance documents.<br />
<br />
On April 6, 2023, President Biden issued Executive Order 14094, [https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ Modernizing Regulatory Review], which reaffirmed and amended Executive Order 12,866 § 3(f)’s definition of “significant regulatory action” to require OIRA review for rulemakings having an annual effect on the economy of $200 million or more. It also reaffirmed the Biden Administration’s commitment to distributive analysis and equity, as well as proactive public engagement in rulemaking. In addition to the Executive Order, the Biden Administration also issued revisions to Circulars [https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf A-4] and [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A94/a094.pdf A-94] for public comment, as well as a [https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf memorandum] regarding implementation of the Executive Order. On July 19, 2023, OMB issued a [https://www.whitehouse.gov/wp-content/uploads/2023/07/Broadening-Public-Participation-and-Community-Engagement-in-the-Regulatory-Process.pdf memorandum] for the heads of executive departments and agencies providing guidance for how to implement Executive Order 14094.<br />
<br />
==Bibliography==<br />
===Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg33312/pdf/CHRG-110hhrg33312.pdf Amending Executive Order 12866: Good Governance or Regulatory Usurpation?], Hearing Before Subcomm. on Commercial and Admin. Law, H. Comm. of the Judiciary, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg86439/pdf/CHRG-108hhrg86439.pdf How to Improve Regulatory Accounting: Costs, Benefits and Impacts of Federal Regulations], Hearing Before Subcomm. on Energy Policy, Nat. Res. and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004) (statement of John D. Graham, Administrator of OIRA).<br />
*OIRA Insight, Reform, and Accountability Act, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt19/pdf/CRPT-115hrpt19-pt1.pdf H.R. Rep. No. 115-19] (2017).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg20632/pdf/CHRG-114hhrg20632.pdf Assessing the Obama Years: OIRA and Regulatory Impacts on Jobs, Wages and Economic Recovery], Hearing Before Subcomm. On Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2016) ([https://judiciary.house.gov/hearing/assessing-obama-years-oira-regulatory-impacts-jobs-wages-economic-recovery/ video]).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26026/pdf/CHRG-114hhrg26026.pdf Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking], Hearing Before Subcomm. on Health Care, Benefits and Admin. Rules & Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/challenges-facing-oira-ensuring-transparency-effective-rulemaking/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82203/pdf/CHRG-113hhrg82203.pdf Reducing Red Tape: The New OIRA Administrator’s Perspective], Hearing Before H. Comm. on Small Bus., 113th Cong. (2013).<br />
<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on the Costs and Benefits of Regulations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Report to Congress on the Costs and Benefits of Federal Regulations (Sept. 30, 1997). Notice of availability of draft report and request for comments, 62 Fed. Reg. 39352 (July 22, 1997).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport1998.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (January 1999). Notice of availability of draft report and request for comments, 63 Fed. Reg. 44034 (Aug. 17, 1998), extended 63 Fed. Reg. 49935 (Sept. 18, 1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2000fedreg-charts.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (June 2000). Notice of availability of draft report and request for comments, 65 Fed. Reg. 1296 (Jan. 7, 2000); extended 65 Fed. Reg. 4447 (Jan. 27, 2000) and 65 Fed. Reg. 7198 (Feb. 7, 2000).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2001). Notice of availability of draft report and request for comments, 66 Fed. Reg. 22041 (May 2, 2001); extended 66 Fed. Reg. 34963 (July 2, 2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2002). Notice of availability of draft report and request for comments, 67 Fed. Reg. 15014 (Mar. 28, 2002).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (September 2003). Notice of availability of draft report and request for comments, 68 Fed. Reg. 15772 (Apr. 1, 2003).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2004). Notice of availability of draft report and request for comments, 69 Fed. Reg. 7987 (Feb. 20, 2004).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2005). Notice of availability of draft report and request for comments, 70 Fed. Reg. 14735 (Mar. 23, 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2007). Notice of availability of draft report and request for comments, 71 Fed. Reg. 19213 (Apr. 13, 2006).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2008). Notice of availability of draft report and request for comments, 72 Fed. Reg. 11061 (Mar. 12, 2007).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2009). Notice of availability of draft report and request for comments, 73 Fed. Reg. 55169 (Sept. 24, 2008).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Jan. 27, 2010). Notice of availability of draft report and request for comments, 74 Fed. Reg. 48101 (Sept. 21, 2009).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (July 2010). Notice of availability of draft report and request for comments, 75 Fed. Reg. 22630 (Apr. 29, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2011). Notice of availability of draft report and request for comments, 76 Fed. Reg. 18260 (Apr. 1, 2011).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (April 2013). Notice of availability of draft report and request for comments, 77 Fed. Reg. 22003 (Apr. 12, 2012).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (May 2014). Notice of availability of draft report and request for comments, 78 Fed. Reg. 29780 (May. 21, 2013).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 15, 2015). Notice of availability of draft report and request for comments, 72 Fed. Reg. 37776 (July 2, 2014).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Mar. 10, 2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/12/draft_2017_cost_benefit_report.pdf 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Feb. 23, 2018).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Program of the United States Government'' (1987-1988) (and through 1990-91).<br />
*''Report on Executive Order No. 12866'', 59 Fed. Reg. 24276 (May 10, 1994).<br />
*''More Benefits Fewer Burdens—Creating a Regulatory System that Works For the American People'', A Report to the President on the Third Anniversary of Executive Order 12866 (1996).<br />
</div><br />
<br />
===ACUS Documents===<br />
====Recommendations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*88-9 [https://www.acus.gov/sites/default/files/documents/88-9.pdf Presidential Review of Agency Rulemaking]<br />
*93-4 [https://www.acus.gov/sites/default/files/documents/93-4.pdf Improving the Environment for Agency Rulemaking]<br />
*95-3 [https://www.acus.gov/sites/default/files/documents/95-3.pdf Review of Existing Agency Regulations]<br />
*2011-6 [https://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf International Regulatory Cooperation]<br />
*2012-5 [https://www.acus.gov/sites/default/files/Final-Recommendation-2012-5-Improving-Agency-Coordination.pdf Improving Coordination of Related Agency Responsibilities]<br />
*2013-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202013-2%20%28Benefit-Cost%20Analysis%29_0.pdf Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%25202014-5%2520%2528Retrospective%2520Review%2529_1.pdf Retrospective Review of Agency Rules]<br />
*2015-1 [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Recommendation%20FINAL_0.pdf Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2017-3 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-3%20%28Plain%20Language%20in%20Regulatory%20Drafting%29.pdf Plain Language in Regulatory Drafting]<br />
*2017-6 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-6%20%28Learning%20from%20Regulatory%20Experience%29_0.pdf Learning from Regulatory Experience]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
</div><br />
===CRS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Maeve P. Carey, RL32240, ''The Federal Rulemaking Process: An Overview'' (June 17, 2013).<br />
*Maeve P. Carey, R41974, ''Cost-Benefit and Other Analysis Requirements in the Rulemaking Process'' (Dec. 9, 2014).<br />
*Vivian S. Chu & Daniel T. Shedd, R42720, ''Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues'' (Sept. 10, 2012).<br />
*Vivian S. Chu & Daniel T. Shedd, RS20846, ''Executive Orders: Issuance, Modification, and Revocation'' (Apr. 6, 2014).<br />
*Curtis Copeland, RL33862, ''Changes to the OMB Regulatory Review Process by Executive Order 13422'' (Jan. 3, 2008).<br />
*Curtis Copeland, RL32397, ''Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs'' (June 9, 2009).<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/RCED84-62, [https://www.gao.gov/assets/150/141408.pdf Cost-Benefit Analysis Can Be Useful in Assessing Environmental Regulations, Despite Limitations] (1984).<br />
*T-GGD-99-93, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-99-93/pdf/GAOREPORTS-T-GGD-99-93.pdf Federalism: Implementation of Executive Order 12612 in the Rulemaking Process] (1999).<br />
*GAO/T-GGD-99-131, [https://www.gao.gov/assets/110/108000.pdf Federalism: Previous Initiatives Have Had Little Effect on Agency Rulemaking] (1999).<br />
*GAO/ GGD-99-59, [https://www.gao.gov/assets/160/156562.pdf Regulatory Accounting: Analysis of OMB’s Reports on the Costs and Benefits of Federal Regulation] (1999).<br />
*GAO/GGD-94-28, [https://www.gao.gov/assets/220/218925.pdf Regulatory Burden: Recent Studies, Industry Issues, and Agency Initiatives] (1993).<br />
*GAO/GGD-97-2, [https://www.gao.gov/assets/160/155661.pdf Regulatory Burden: Measurement Challenges and Concerns Raised by Selected Companies] (1996).<br />
*GAO/RCED-98-142, [https://www.gao.gov/assets/160/156173.pdf Regulatory Reform: Agencies Could Improve Development, Documentation, and Clarity of Regulatory Economic Analysis] (1998).<br />
*GAO/GGD-98-31, [https://www.gao.gov/assets/230/225071.pdf Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always Clearly Documented] (1998).<br />
*GAO/ PEMD-95-18BR, [https://www.gao.gov/assets/80/78970.pdf Regulatory Reform: Information on Costs, Cost-Effectiveness, and Mandated Deadlines for Regulations] (1995).<br />
*GAO-03-1015, [https://www.gao.gov/assets/240/239832.pdf Regulatory Takings: Implementation of Executive Order on Government Actions Affecting Private Property Use] (2003).<br />
*GAO-03-929, [https://www.gao.gov/assets/160/157476.pdf Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews] (2003).<br />
*GAO-05-289, [https://www.gao.gov/assets/250/247171.pdf Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules] (2005).<br />
*GAO-09-205, [https://www.gao.gov/assets/290/288538.pdf Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews] (2009).<br />
*GAO-13-588, [https://www.gao.gov/assets/660/656488.pdf International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency Guidance] (2013).<br />
*GAO-14-423T, [https://www.gao.gov/assets/670/661540.pdf Federal Rulemaking: Regulatory Review Processes Could Be Enhanced] (2014).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-14-519, [https://www.gao.gov/assets/670/664872.pdf Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses] (2014).<br />
*GAO-14-714, [https://www.gao.gov/assets/670/665745.pdf Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent] (2014).<br />
*GAO-15-368, [https://www.gao.gov/assets/670/669688.pdf Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices] (2015).<br />
*GAO-15-718, [https://www.gao.gov/assets/680/672572.pdf Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees] (2015).<br />
*GAO-16-720, [https://www.gao.gov/assets/680/679518.pdf Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance] (2016).<br />
*GAO-18-22, [https://www.gao.gov/assets/690/687875.pdf Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions] (2017).<br />
*GAO-18-183, [https://www.gao.gov/assets/700/690624.pdf Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance During and at the End of Presidents’ Terms] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Office of Legal Counsel, ''Op. on Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498''.<br />
*Office of Legal Counsel, Memorandum from Larry L. Simms, Acting Assistant Attorney General, [https://www.justice.gov/file/22586/download Proposed Executive Order Entitled “Federal Regulation,”] 5 Op. O.L.C. 59 (1981).<br />
*Council on Envtl. Quality, [https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).<br />
*Envtl. Protection Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/contsetc.pdf The Benefits and Costs of the Clean Air Act, 1970-1990]—Draft Report for Congress (April 1997).<br />
*Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, [https://ws680.nist.gov/publication/get_pdf.cfm?pub_id=200118 Tenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment] (2007).<br />
*Office of the Vice President, ''Creating a Government That Works Better and Costs Less, Improving Regulatory Systems'', National Performance Review (1993).<br />
*Statement #18, [https://www.acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf Improving the Timeliness of OIRA Regulatory Review], 78 Fed. Reg. 76275 (Dec. 17, 2013).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''OIRA Thirtieth Anniversary Conference'', 63 Admin. L. Rev. (special ed.) (2011).<br />
*ABA Section of Admin. Law & Regulatory Practice, [https://www.americanbar.org/content/dam/aba/administrative/administrative_law/Final%20POTUS%20Report%2010-26-16.authcheckdam.pdf Report: Improving the Administrative Process: A Report to the President-Elect of the United] (2016), 69 Admin. L. Rev. 205 (2017).<br />
*Rebecca Adams, ''Regulating the Rule-Makers: John Graham at OIRA'', CQ Weekly 520 (Feb. 23, 2002).<br />
*Joseph E. Aldy, [https://www.acus.gov/sites/default/files/documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy] (Nov. 17, 2014) (report to ACUS).<br />
*Robert A. Anthony, ''Executive Order, OMB Bulletin Focus on Guidances'', 32 Admin. L. & Reg. News 10, Spring 2007.<br />
*William D. Araiza, ''Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking'', 54 Admin. L. Rev. 611 (2002).<br />
*Donald R. Arbuckle, ''Obscure But Powerful: Who Are Those Guys?'', 63 Admin. L. Rev. 131 (special ed.) (2011).<br />
*Nicholas Bagley & Richard L. Revesz, ''Centralized Oversight of the Regulatory State'', 106 Colum. L. Rev. 1260 (2006).<br />
*Stephen J. Balla, Jennifer M. Deets, & Forrest Maltzman, ''Outside Communications and OIRA Review of Agency Regulations'', 63 Admin. L. Rev. 149 (special ed.) (2011).<br />
*Rachel Bayefsky, Note, [https://www.yalelawjournal.org/pdf/1732.Bayefsky.1782_u52fptmb.pdf Dignity as a Value in Agency Cost-Benefit Analysis], 123 Yale L.J. 1732 (2014).<br />
*Josh Blackman, [https://illinoislawreview.org/wp-content/uploads/2018/03/Blackman.pdf Presidential Maladministration], 2018 U. Ill. L. Rev. 397 (2018).<br />
*James F. Blumstein, ''Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues'', 51 Duke L. J. 851 (2001).<br />
*Alexander Bolton, Rachel Augustine Potter, & Sharece Thrower, ''Organizational Capacity, Regulatory Review, and the Limits of Political Control'', 32 J. L. Econ. & Org. 242 (2016).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1490&context=mlr Inside the Administrative State: A Critical Look at the Practice of Presidential Control], 105 Mich. L. Rev. 47 (2006).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1445&context=mlr Legitimacy, Selectivity, and the Disunitary Executive: A Reply to Sally Katzen], 105 Mich. L. Rev. 1511 (2007).<br />
*Harold H. Bruff, ''Presidential Management of Agency Rulemaking'', 57 Geo. Wash. L. Rev. 533 (1989).<br />
*Reeve T. Bull, ''Building a Framework for Governance: Retrospective Review and Rulemaking Petitions'', 67 Admin. L. Rev. 265 (2015).<br />
*Ming H. Chen, ''Administrator-in-Chief: The President and Executive Action in Immigration Law'', 69 Admin. L. Rev. 347 (2017).<br />
*John C. Coates IV, [https://www.yalelawjournal.org/pdf/a.882.Coates.1011_owe353wf.pdf Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications], 124 Yale L.J. 882 (2015).<br />
*Cary Coglianese, [http://yalejreg.com/moving-forward-with-regulatory-lookback/ Moving Forward with Regulatory Lookback], 30 Yale J. on Reg. Online 57 (2013).<br />
*Cary Coglianese, ''The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State'', 69 Admin. L. Rev. 43 (2017).<br />
*Cary Coglianese, [http://www.aulawreview.org/au_law_review/wp-content/uploads/2018/02/02-Coglianese_67AMULREV733.pdf Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel Cole, [https://www.law.ua.edu/pubs/lrarticles/Volume%2064/Issue%201/2%20Cole%2055%20-%2089.pdf Law, Politics, and Cost-Benefit Analysis], 64 Ala. L. Rev. 55 (2012).<br />
*John Conyers, Jr., Henry C. Johnson, Jr., & David N. Cicilline, [http://harvardjol.com/wp-content/uploads/2017/05/HLL201-1.pdf The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration], 54 Harv. J. on Legis. 365 (2017).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Final%20BCA%20Report%204-30-13.pdf Economic Analysis and Independent Regulatory Agencies] (Apr. 30, 2013) (report to ACUS).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Report%20CIRCULATED%20to%20Committees%20on%2010-21-13.pdf Length of Rule Reviews by the Office of Information and Regulatory Affairs] (Oct. 7, 2013) (report to ACUS).<br />
*Curtis Copeland, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2208&context=ulj The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking], 33 Fordham Urb. L.J. 1257 (2006).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Draft%20Report%20041315%20FINAL_0.pdf The Unified Agenda: Proposals for Reform] (Apr. 13, 2015) (report to ACUS).<br />
*Robin Kundis Craig, ''The Bush Administration’s Use and Abuse of Rulemaking. Part I: The Rise of OIRA'', 28 Admin. & Reg. L. News 8 (Summer 2003).<br />
*Stephen Croley, ''White House Review of Agency Rulemaking: An Empirical Investigation'', 70 U. Chi. L. Rev. 821 (2003).<br />
*Nestor M. Davidson &. Ethan J. Lieb, [https://georgetownlawjournal.org/articles/64/regleprudence/pdf Regleprudence—At OIRA and Beyond], 103 Geo. L.J. 259 (2015).<br />
*Christopher C. DeMuth & Douglas H. Ginsburg, ''White House Review of Agency Rulemaking'', 99 Harv. L. Rev. 1075 (1986).<br />
*Christopher DeMuth, ''OIRA at Thirty'', 63 Admin. L. Rev. 15 (special ed.) (2011).<br />
*Caroline DeWitt, Comment, ''The Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review'', 6 Admin. L. J. Am. U. 759 (1993).<br />
*Susan E. Dudley, ''Observations on OIRA’s Thirtieth Anniversary'', 63 Admin. L. Rev. 113 (special ed.) (2011).<br />
*Susan E. Dudley, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1006&context=caselrev Improving Regulatory Accountability: Lessons From the Past and Prospects for the Future], 65 Case W. Res. L. Rev. 1027 (2015).<br />
*E. Donald Elliott, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4231&context=lcp TQM’ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It], 57 Law & Contemp. Probs. 167 (1994).<br />
*Blake Emerson & Cheryl Blake, [https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20Drafting_Final%20Report.pdf Plain Language in Regulatory Drafting] (Dec. 8, 2017) (report to ACUS).<br />
*Jaclyn L. Falk, Comment, [https://cpb-us-w2.wpmucdn.com/usfblogs.usfca.edu/dist/7/272/files/2014/09/The-Behind-Closed-Door-Policy-Executive-Influence-in-the-Environmental-Protection-Agencys-Informal-Rulemaking.pdf The Behind Closed Door Policy: Executive Influence in the Environmental Protection Agency’s Informal Rulemaking], 47 U.S.F. L. Rev. 593 (2013).<br />
*Cynthia R. Farina, ''Undoing the New Deal Through the New Presidentialism'', 22 Harv. J. L. & Pub. Pol’y 227 (1998).<br />
*Scott Farrow, ''Improving Regulatory Performance: Does Executive Office Oversight Matter?'' (2001).<br />
*Arthur Fraas, ''Observations on OIRA’s Policies and Procedures'', 63 Admin. L. Rev. (special ed.) 79 (2011).<br />
*Arthur Fraas & Randall Lutter, ''On the Economic Analysis of Regulations at Independent Regulatory Commissions'', 63 Admin. L. Rev. 213 (special ed.) (2011).<br />
*Jody Freeman & Jim Rossi, [https://www.acus.gov/sites/default/files/documents/Freeman-Rossi-ACUS-Report-5-30-12-PDF.pdf Improving Coordination of Related Agency Responsibilities] (May 30, 2012) (report to ACUS).<br />
*William Funk “Agency Oversight by the Political Branches,” ch. 11 in Section on Administrative Law and Regulatory Practice, ''A Guide to Judicial and Political Review of Federal Agencies'' 259-304 (2d ed. Michael E. Herz, Richard Murphy & Kathryn Watts eds., 2015).<br />
*Margaret Gilhooley, [https://journals.iupui.edu/index.php/inlawrev/article/view/2956/2879 Executive Oversight of Administrative Rulemaking: Disclosing the Impact], 25 Ind. L. Rev. 299 (1991).<br />
*John D. Graham & Cory R. Liu, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_425_Graham_Liu-1.pdf Regulatory and Quasi-Regulatory Activity Without OMB and Cost-Benefit Review], 37 Harv. J.L. & Pub. Pol’y 425 (2014).<br />
*John D. Graham, Paul R. Noe & Elizabeth L. Branch, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2198&context=ulj Managing the Regulatory State: The Experience of the Bush Administration], 33 Fordham Urb. L. J. 953 (2006).<br />
*Wendy L. Gramm, ''Regulatory Review Issues, October 1985–February 1988'', 63 Admin. L. Rev. 27 (special ed.) (2011).<br />
*Abner S. Greene, ''Checks and Balances in an Era of Presidential Lawmaking'', 61 U. Chi. L. Rev. 123 (1994).<br />
*Robert W. Greene, [https://rutgerspolicyjournal.org/sites/jlpp/files/Greene.pdf Improving U.S. Financial Regulation Through OIRA Review & Robust Regulatory Analysis Standards], 14 Rutgers J.L. & Pub. Pol’y 89 (2016).<br />
*Sarah Grimmer, Note, ''Public Controversy Over Peer Review'', 57 Admin. L. Rev. 275 (2005).<br />
*Zachary J. Gubler, [https://www.acus.gov/sites/default/files/documents/ZGubler%20ACUS%20Final%20Report%2811-17%29.pdf Regulatory Experimentation] (Nov. 17, 2017) (report to ACUS).<br />
*Hiba Hafiz, [http://wisconsinlawreview.org/wp-content/uploads/2018/01/Hafiz-Final.pdf Economic Analysis of Labor Regulation], 2017 Wis. L. Rev. 1115 (2017).<br />
*Robert W. Hahn, Risks, ''Costs, and Lives Saved: Getting Better Results From Regulation'', (Oxford Univ. Press & AEI Press, 1996).<br />
*Robert W. Hahn & John A. Hird, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1177&context=yjreg The Costs and Benefits of Regulation: Review and Synthesis], 8 Yale J. on Reg. 233 (1991).<br />
*Lisa Heinzerling, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2202&context=ulj Statutory Interpretation in the Era of OIRA], 33 Fordham Urb. L. J. 1097 (2006).<br />
*Lisa Heinzerling, [https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1741&context=pelr Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House], 31 Pace Envtl. L. Rev. 325 (2014).<br />
*Thomas D. Hopkins, ''The Evolution of OIRA Oversight—CWPS to OIRA'', 63 Admin. L. Rev. 71 (special ed.) (2011).<br />
*Elena Kagan, ''Presidential Administration'', 114 Harv. L. Rev. 2245 (2001).<br />
*Sally Katzen, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1444&context=mlr A Reality Check on an Empirical Study: Comments on “Inside the Administrative State,”] 105 Mich. L. Rev. 1497 (2007).<br />
*Sally Katzen, ''OIRA at Thirty: Reflections and Recommendations'', 63 Admin. L. Rev. 103 (special ed.) (2011).<br />
*Cornelius M. Kerwin & Scott R. Furlong, ''Rulemaking: How Government Agencies Write Law and Make Policy'' (CQ Press, 4th ed. 2011).<br />
*Peter Ketcham-Colwill, [https://www.gwlr.org/wp-content/uploads/2018/02/82-Geo.-Wash.-L.-Rev.-1622.pdf Presidential Influence Over Agency Rulemaking Through Regulatory Review], 82 Geo. Wash. L. Rev. 1622 (2014).<br />
*Robert E. Litan & William D. Nordhaus, ''Reforming Federal Regulation'' (Yale Univ. Press, 1983).<br />
*Michael A. Livermore, [http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/Livermore_Art.pdf Cost-Benefit Analysis and Agency Independence], 81 U. Chi. L. Rev. 609 (2014).<br />
*Michael A. Livermore & Richard L. Revesz, [https://georgetownlawjournal.org/articles/119/regulatory-review-capture-agency/pdf Regulatory Review, Capture, and Agency Inaction], 101 Geo. L.J. 1337 (2013)<br />
*Jeffrey S. Lubbers, ''A Guide to Federal Agency Rulemaking'' (ABA Section of Admin. Law & Regulatory Practice, 5th ed. 2012).<br />
*Jeffrey S. Lubbers, ''OMB to Require Peer Review for Regulatory Science Documents'', 29 Admin. L. & Reg. News 3, Fall 2003.<br />
*Maureen Mahon, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1179&context=law_lawreview Proceed With Caution: The Implications of the OMB Peer Review Guidelines on Precautionary Legislation], 84 Wash. U. L. Rev. 461 (2006).<br />
*Jonathan S. Masur & Eric A. Posner, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4712&context=clr Unquantified Benefits and the Problem of Regulation Under Uncertainty], 102 Cornell L. Rev. 87 (2016).<br />
*Randolph J. May, ''OMB’s Peer Review Proposal—Swamped by Science?'', 29 Admin. & Reg. L. News 4, Spring 2004.<br />
*Michael McCarthy, [https://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91-1] (Oct. 19, 2011) (report to ACUS).<br />
*Thomas O. McGarity, ''Presidential Control of Regulatory Agency Decisionmaking'', 36 Am. U. L. Rev. 443 (1987).<br />
*Thomas O. McGarity, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1538&context=dlj Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age], 61 Duke L.J. 1671 (2012).<br />
*Patrick A. McLaughlin & Jerry Ellig, ''Does OIRA Review Improve the Quality of Regulatory Impact Analysis? Evidence from the Final Year of the Bush II Administration'', 63 Admin. L. Rev. 179 (special ed.) (2011).<br />
*Emily Hammond Meazell, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1539&context=dlj Presidential Control, Expertise, and the Deference Dilemma], 61 Duke L.J. 1763 (2012).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1208&context=articles Disclosing “Political” Oversight of Agency Decision Making], 108 Mich. L. Rev. 1127 (2010).<br />
*Nina Mendelson, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Mendelson_May.pdf Another Word on the President’s Statutory Authority over Agency Action], 79 Fordham L. Rev. 2455 (2011).<br />
*Nina A. Mendelson & Jonathan B. Wiener, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_447_Mendelson_Wiener.pdf Responding to Agency Avoidance of OIRA], 37 Harv. J.L. & Pub. Pol’y 447 (2014).<br />
*Gillian E. Metzger & Kevin M. Stack, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mlr Internal Administrative Law], 115 Mich. L. Rev. 1239 (2017).<br />
*James C. Miller III, ''The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future'', 63 Admin. L. Rev. 93 (special ed.) (2011).<br />
*Alan B. Morrison, ''OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation'', 99 Harv. L. Rev. 1059 (1986).<br />
*William A. Niskanen, ''Clinton Regulation Will Be “Rational”: Interview with Sally Katzen, the New OIRA Administrator'', Regulation Magazine No. 3, at 36 (1993).<br />
*Lars Noah, ''Peer Review and Regulatory Reform'', 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,606 (2000).<br />
*Paul Noe, ''Analyzing the Destruction of Human Capital by Regulations'', 63 Admin. L. Rev. 203 (special ed.) (2011).<br />
*Note, ''Regulatory Analyses and Judicial Review of Informal Rulemaking'', 91 Yale L. J. 739 (1982).<br />
*Note, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol124_%20OIRA%20_avoidance.pdf OIRA Avoidance], 124 Harv. L. Rev. 994 (2011).<br />
*Note, ''The Inflation Impact Statement Program: An Assessment of the First Two Years'', 26 Am. U. L. Rev. 1138 (1977).<br />
*Jennifer Nou, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_nou.pdf Agency Self-Insulation Under Presidential Review], 126 Harv. L. Rev. 1755 (2013).<br />
*Jennifer Nou & Edward H. Stiglitz, [https://southerncalifornialawreview.com/wp-content/uploads/2018/01/89_733.pdf Strategic Rulemaking Disclosure], 89 S. Cal. L. Rev. 733 (2016).<br />
*Anne Joseph O’Connell, [http://www.virginialawreview.org/sites/virginialawreview.org/files/889.pdf Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State], 94 Va. L. Rev. 889 (2008).<br />
*Erik D. Olson, ''The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291'', 4 Va. J. Nat. Resources L. 1 (1984).<br />
*Eloise Pasachoff, [https://www.yalelawjournal.org/pdf/a.2182.Pasachoff.2290_aqo1aub4.pdf The President’s Budget as a Source of Agency Policy Control], 125 Yale L.J. 2182 (2016).<br />
*Robert V. Percival, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1148&context=dlj Presidential Management of the Administrative State: The Not-So-Unitary Executive], 51 Duke L. J. 963 (2001).<br />
*Robert V. Percival, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Percival_May.pdf Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?], 79 Fordham L. Rev. 2487 (2011).<br />
*Richard J. Pierce, Jr., [http://www.nyujlpp.org/wp-content/uploads/2016/06/Pierce-Regulatory-Budget-Debate-19nyujlpp249.pdf The Regulatory Budget Debate], 19 N.Y.U. J. Legis. & Pub. Pol’y 249 (2016).<br />
*Eric A. Posner & E. Glen Weyl, [https://www.yalelawjournal.org/pdf/Posner-WeylPDF_ijby4z9e.pdf Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms], 124 Yale L.J. Forum 246 (2015).<br />
*Robert L. Rabin, ''Federal Regulation in Historical Perspective'', 38 Stan L. Rev. 1189 (1986).<br />
*Richard L. Revesz, [http://yalejreg.com/articlepdfs/34-JREG-545.pdf Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation], 34 Yale J. On Reg. 545 (2017).<br />
*Richard L. Revesz, [http://www.californialawreview.org/wp-content/uploads/2014/12/02-Revesz.pdf Quantifying Regulatory Benefits], 102 Cal. L. Rev. 1423 (2014).<br />
*Richard L. Revesz & Michael A. Livermore, ''Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health'' (Oxford Univ. Press 2008).<br />
*Delissa Ridgway et al., ''The Council on Competitiveness and Regulatory Review: A “Kinder, Gentler” Approach to Regulation?'', 6 Admin. L. J. Am. U. 691 (1993).<br />
*David B. Rivkin, ''The Unitary Executive and Presidential Control of Executive Branch Rulemaking'', 7 Admin. L. J. Am. U. 309 (1993).<br />
*Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291'', 80 Mich. L. Rev. 193 (1981).<br />
*Arden Rowell, [https://www.law.uci.edu/lawreview/vol4/no4/Rowell.pdf Time in Cost-Benefit Analysis], 4 UC Irvine L. Rev. 1215 (2014).<br />
*Susan Rose-Ackerman, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1153&context=umlr Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review], 65 U. Miami L. Rev. 335 (2011).<br />
*Andrew Rudalevige, [http://lawreview.syr.edu/wp-content/uploads/2015/09/G-Rudalevige-For-Website.pdf Old Laws, New Meanings: Obama’s Brand of Presidential “Imperialism”], 66 Syracuse L. Rev. 1 (2016).<br />
*J.B. Ruhl & James Salzman, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1170&context=law_lawreview In Defense of Regulatory Peer Review], 84 Wash. U. L. Rev. 1 (2006).<br />
*Thomas O. Sargentich, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/The-Emphasis-on-the-Presidency-in-U.S.-Public-Law-An-Essay-Critiquing-Presidential-Administration.pdf The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration], 59 Admin. L. Rev. 1 (2007).<br />
*Peter M. Shane, ''Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking'', 48 Ark. L. Rev. 161 (1995).<br />
*David R. Sheaffer, [https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1178&context=lr The Price of Regulation: Rethinking Executive Review of Agency Rulemaking], 2016 Mich. St. L. Rev. 1091 (2016).<br />
*Sidney Shapiro, [https://www.acus.gov/sites/default/files/documents/gov.acus_.1995.rec_.95-3.pdf Agency Review of Existing Regulations] (Jan. 15, 1995) (report to ACUS).<br />
*Sidney A. Shapiro, ''OMB’s Dubious Peer Review Procedures'', 34 Envtl. L. Rep. (Envtl. L. Inst.) 10,064 (2004).<br />
*Sidney A. Shapiro, ''OMB’s Revised Peer Review Bulletin'', 29 Admin. L. & Reg. News 10 (Summer 2004).<br />
*Sidney A. Shapiro & Richard Murphy, [https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Shapiro-Murphy.pdf Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation], 48 U.C. Davis L. Rev. 1457 (2015).<br />
*Sidney A. Shapiro & Ronald F. Wright, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1160&context=umlr The Future of the Administrative Presidency: Turning Administrative Law Inside-Out], 65 U. Miami L. Rev. 577 (2011).<br />
*Stuart Shapiro, ''OIRA Inside and Out'', 63 Admin. L. Rev. 135 (special ed.) (2011).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Stuart Shapiro & Debra Borie-Holtz, ''The Politics of Regulatory Reform'' (Routledge 2013).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS).<br />
*Peter L. Strauss, ''Overseer or “The Decider”? The President in Administrative Law'', 75 Geo. Wash. L. Rev. 696 (2007).<br />
*Peter L. Strauss, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=caselrev The President and the Constitution], 65 Case W. Res. L. Rev. 1151 (2015).<br />
*Peter L. Strauss & Cass R. Sunstein, ''The Role of the President and OMB in Informal Rulemaking'', 38 Admin. L. Rev. 181 (1986).<br />
*Cass R. Sunstein, Simpler: ''The Future of Government'' (Simon & Schuster, 2013).<br />
*Cass R. Sunstein, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_sunstein.pdf The Office of Information and Regulatory Affairs: Myths and Realities], 126 Harv. L. Rev. 1838 (2013).<br />
*Cass R. Sunstein, [http://www.bu.edu/bulawreview/files/2014/08/SUNSTEINDYSFUNCTION.pdf The Regulatory Lookback], 94 B.U. L. Rev. 579 (2014).<br />
*Jim Tozzi, ''OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding'', 63 Admin. L. Rev. 37 (special ed.) (2011).<br />
*Paul R. Verkuil, ''Jawboning Administrative Agencies: Ex Parte Contacts by the White House'', 80 Colum. L. Rev. 943 (1980).<br />
*Christopher J. Walker, ''Modernizing the Administrative Procedure Act'', 69 Admin. L. Rev. 629 (2017).<br />
*Adam L. Warber, ''Executive Orders and the Modern Presidency: Legislating from the Oval Office'' (Lynne Reiner Publishers 2006).<br />
*Kathryn A. Watts, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1240&context=mlr Controlling Presidential Control], 114 Mich. L. Rev. 683 (2016).<br />
*Christopher E. Wilson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Not-Good-Enough-for-Government-Work-How-OMBs-Good-Guidance-Practices-May-Unintentionally-Complicate-Administrative-Law.pdf Comment: Not Good Enough for Government Work: How OMB’s Good Guidance Practices May Unintentionally Complicate Administrative Law], 59 Admin. L. Rev. 177 (2007).<br />
</div><br />
<br />
===Miscellaneous===<br />
<br />
*National Academy of Public Administration, ''Presidential Management of Rulemaking in Regulatory Agencies'' (1987).<br />
*[http://www.thecre.com/ombpapers/featuredarticles.html Center for Regulatory Effectiveness].<br />
*Competitive Enterprise Institute, [https://cei.org/10KC Ten Thousand Commands].</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Rulemaking_Requirements_from_the_Executive_Office_of_the_President&diff=1689Rulemaking Requirements from the Executive Office of the President2023-08-15T21:36:30Z<p>MGluth: </p>
<hr />
<div>This section discusses the most significant presidential Executive Orders, Bulletins, and Memoranda, which pertain to the rulemaking process or federal regulation. Other executive orders and memoranda may be found in other sections, e.g., those relating to the [[Federal Advisory Committee Act]].<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)], [https://www.whitehouse.gov/omb/ Office of Management and Budget (OMB)]<br />
<br />
==Executive Orders==<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Executive Order 12372, [https://www.archives.gov/federal-register/codification/executive-order/12372.html Intergovernmental Review of Federal Programs], 47 Fed. Reg. 30959 (July 16, 1982).<br />
*Executive Order 12630, [https://www.archives.gov/federal-register/codification/executive-order/12630.html Governmental Actions and Interference with Constitutionally Protected Property Rights], 53 Fed. Reg. 8859 (Mar. 18, 1988).<br />
*Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 ( Oct. 4, 1993).<br />
*Executive Order 12889, [https://www.govinfo.gov/content/pkg/WCPD-1994-01-03/pdf/WCPD-1994-01-03-Pg2639.pdf Implementation of the North American Free Trade Agreement], 58 Fed. Reg. 69681 (Dec. 30, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations], 59 Fed. Reg. 7629 (Feb. 16, 1994).<br />
*Executive Order 12988, [https://www.govinfo.gov/content/pkg/WCPD-1996-02-12/pdf/WCPD-1996-02-12-Pg189.pdf Civil Justice Reform], 61 Fed. Reg. 4729 (Feb. 7, 1996).<br />
*Executive Order 13045, [https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Protection of Children from Environmental Health Risks and Safety Risks], 62 Fed. Reg. 19885 (Apr. 23, 1997).<br />
*Executive Order 13132, [https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Federalism], 64 Fed. Reg. 43255 (Aug. 10, 1999).<br />
*Executive Order 13175, [https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
*Executive Order 13211, [https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use], 66 Fed. Reg. 28355 (May 22, 2001).<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 16, 2002).<br />
*Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review], 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming Executive Order 12866).<br />
*Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], 76 Fed. Reg. 41587 (July 14, 2011).<br />
*Executive Order 13609, [https://www.govinfo.gov/content/pkg/FR-2012-05-04/pdf/2012-10968.pdf Promoting International Regulatory Cooperation], 77 Fed. Reg. 26413 (May 4, 2012).<br />
*Executive Order 13610, [https://www.govinfo.gov/content/pkg/FR-2012-05-14/pdf/2012-11798.pdf Identifying and Reducing Regulatory Burdens], 77 Fed. Reg. 28469 (May 14, 2012).<br />
*Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People], 80 Fed. Reg. 56356 (Sept. 18, 2015).<br />
*Executive Order 13725, [https://www.govinfo.gov/content/pkg/FR-2016-04-20/pdf/2016-09346.pdf Steps to Increase Competition and Better Inform Consumers and Works to Support Continued Growth of the American Economy], 81 Fed. Reg. 23417 (Apr. 20, 2016).<br />
*Executive Order 14094, [https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf Modernizing Regulatory Review], 88 Fed. Reg. 21,879 (Apr. 11, 2023).<br />
</div><br />
<br />
==Table of Executive Order Requirements==<br />
{| class="wikitable"<br />
|+<br />
!Executive Order (EO)<br />
!Date and Administration of Issue<br />
!Action Items<br />
!Does the EO Contain a Statement Regarding Applicability to Independent Agencies?<br />
|-<br />
|[https://www.archives.gov/federal-register/codification/executive-order/12630.html EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights]<br />
|1988 - Reagan<br />
|''General Principles''. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” <br />
<br />
<br />
''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.”<br />
<br />
''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.<br />
<br />
<br />
''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).<br />
<br />
<br />
''Ensuring Compliance.'' OMB and the Department of Justice are responsible for ensuring compliance with the EO.<br />
|No<br />
|-<br />
|[https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf EO 12866 - Regulatory Planning and Review]<br />
|1993 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12889.pdf EO 12889 - Implementation of the North American Free Trade Agreement]<br />
|1993 - Clinton<br />
|''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.”<br />
<br />
<br />
''Exceptions''<br />
<br />
#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)).<br />
#Perishable Goods. Technical regulations relating to perishable goods.<br />
#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.<br />
#Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection.<br />
<br />
''Definitions''<br />
<br />
#Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7).<br />
#Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7).<br />
|No<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf EO 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations]<br />
|1994 - Clinton<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1996-02-07/pdf/96-2755.pdf EO 12988 - Civil Justice Reform]<br />
|1996- Clinton<br />
|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.<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks]<br />
|1997 - Clinton<br />
|''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.”<br />
''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:<br />
<br />
#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.”<br />
#Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/pdf/99-20729.pdf EO 13132 - Federalism]<br />
|1999 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf EO 13175 - Consultation and Coordination with Indian Tribal Governments]<br />
|2000 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2001-05-22/pdf/01-13116.pdf EO 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use]<br />
|2001 - Bush<br />
|''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.<br />
<br />
<br />
''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. <br />
<br />
<br />
''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. <br />
<br />
<br />
''Publication.'' Agencies must publish the Statement or a summary in the related NPRM and final rule.<br />
|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 . . . ."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2002-08-16/pdf/02-21056.pdf EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking]<br />
|2002 - Bush<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf EO 13563 - Improving Regulation and Regulatory Review]<br />
|2011 - Obama<br />
|''General Principles.'' This EO supplements and reaffirms [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 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.<br />
<br />
<br />
''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.”<br />
<br />
<br />
''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.”<br />
<br />
<br />
''Flexible Approaches.'' Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.”<br />
<br />
<br />
''Objectivity with regard to scientific information.'' Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking.<br />
<br />
<br />
''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.”<br />
|Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review <nowiki>[EO] 12866</nowiki>]."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf EO 13579 - Regulation and Independent Regulatory Agencies]<br />
|2011 - Obama<br />
|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 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.”<br />
|Yes. The EO is entirely geared toward independent agencies.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-04/pdf/2012-10968.pdf EO 13609 - Promoting International Regulatory Cooperation]<br />
|2012 - Obama<br />
|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.<br />
|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.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf EO 13610 - Identifying and Reducing Regulatory Burdens]<br />
|2012 - Obama<br />
|Agencies are instructed to institutionalize regular reviews of their previously 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.<br />
|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)."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2016-04-20/pdf/2016-09346.pdf EO 13725 - Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy]<br />
|2016 - Obama<br />
|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. <br />
|Yes. See § 3(b) for relevant text: "Independent agencies are strongly encouraged to comply with the requirements of this order."<br />
|-<br />
|[https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ EO 14094 - Modernizing Regulatory Review]<br />
|2023 - Biden<br />
|Agencies should affirmatively promote public participation in rulemaking and proactively engage interested parties. Regulatory analysis should recognize distributive impacts and equity.<br />
|No.<br />
|}<br />
<br />
==Other White House Bulletins and Memoranda==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-119-1.pdf Federal Participation in the Development and Use of Voluntary Standards and in Conformity Assessment Activities] (1998).<br />
*[https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf Plain Language in Government Writing] (1998).<br />
*[https://obamawhitehouse.archives.gov/omb/inforeg_oira_review_process/ Presidential Review of Agency Rulemaking by OIRA] (2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf Circular No. A-4, New Guidelines for the Conduct of Regulatory Analysis] (2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf Circular A-4, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/CircularA94.pdf Circular A-94, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf Implementation of Modernizing Regulatory Review Executive Order] (Apr. 6, 2023).<br />
*M-05-03, [https://obamawhitehouse.archives.gov/omb/memoranda_fy2005_m05-03 Final Information Quality Bulletin for Peer Review] (2004).<br />
*[https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf Final Bulletin for Agency Good Guidance Practices] (2007).<br />
*M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf Updated Principles for Risk Analysis](2007).<br />
*M-19-14, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf Guidance on Compliance with the Congressional Review Act] (2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01866.pdf Modernizing Regulatory Review] (2021)<br />
</div><br />
<br />
==Overview==<br />
===History of Presidential Oversight of Rulemaking and Regulation===<br />
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. <br />
<br />
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.<br />
<br />
In 1974, President Ford issued an executive order requiring executive branch agencies to prepare an “inflation impact statement” for each “major” federal action. 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” rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to COWPS upon publication of the NPRM. COWPS would review the IIS and, in its discretion, offer informal criticism of the proposal or participate in the public proceedings on the rule. <br />
<br />
President Carter continued presidential review of agency rules by means of Executive Order 12044, ''Improving Government Regulations'', issued in 1978. Under the order, executive agencies were required to: (1) publish semi-annual agendas, describing and giving the legal bases for, any “significant” regulations under development by the agency; (2) establish procedures to identify “significant” rules, to evaluate their need, and to have the agency head assure that the “least burdensome of the acceptable alternatives” was proposed; and (3) prepare a “regulatory analysis” that examined the cost-effectiveness of alternative regulatory approaches for “major rules.”<br />
<br />
President Carter also established a Regulatory Analysis Review Group to review the regulatory analyses prepared for a limited number of proposed “major” rules and to submit comments on the proposed rules during the public comment period. He created another rulemaking review body, the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. These efforts to coordinate agency rulemaking were challenged unsuccessfully in several lawsuits.<br />
<br />
President Reagan acted quickly after taking office to increase control over executive branch rulemaking. On February 17, 1981, the President issued an executive order on federal regulations designed “to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” The new Executive Order 12291, [https://www.archives.gov/federal-register/codification/executive-order/12291.html Federal Regulation], replaced Executive Order 12044, which President Reagan said had “proven ineffective.” <br />
<br />
Executive Order 12291 contained both substantive requirements and procedural steps to be followed in the development and promulgation of new rules. The [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)] in OMB was given responsibility for implementing Executive Order 12291. OMB’s rulemaking review function is supplemented by the powers it was given in the [[Paperwork Reduction Act]] of 1980, by which Congress statutorily established OIRA to, among other things, review and approve or disapprove agency “information collection requests.”<br />
<br />
The Office of Legal Counsel in the U.S. Department of Justice issued an [https://www.justice.gov/file/22586/download opinion] supporting the validity of Executive Order 12291. The opinion stated that the President’s authority to issue the order was based on his constitutional power to “take care that the laws be faithfully executed.” While concluding that any inquiry into Congressional intent in enacting specific rulemaking statutes “will usually support the legality of presidential supervision of rulemaking by Executive Branch agencies,” the opinion stated that presidential supervision of agency rulemaking “is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official.”<br />
<br />
Despite criticism of this new form of presidential review, President Reagan began his second term by expanding the program through Executive Order 12498, [https://www.archives.gov/federal-register/codification/executive-order/12498.html Regulatory Planning Process], which established a “regulatory planning process” with the purpose of helping to “ensure that each major step in the process of rule development is consistent with Administration policy.” <br />
<br />
According to OMB, the problem with regulatory review under Executive Order 12291 was that such review “often came late in the regulatory process, after huge investments of agency time and resources, and often after agency staff commitments to constituents had made it extremely difficult to consider any legally acceptable, but previously ignored, regulatory alternative.” This resulted, OMB said, in the “bureaucracy often present[ing] agency heads with faits accompli.” <br />
<br />
Executive Order 12498’s regulatory planning process was designed to avoid this problem. Under this procedure, the head of each agency was required to determine at the beginning of the regulatory process whether a proposed regulatory venture was “consistent with the goals of the Administration.” At the beginning of the year, Agency heads were to develop a plan for managing the agency’s most significant regulatory actions. OMB then reviewed the plan for consistency with the administration’s program and published the coordinated agency plans in a government-wide document. This document, entitled “Regulatory Program of the United States Government,” governed more than 20 major rulemaking agencies and was published each year during the second Reagan term and the Bush administration to inform Congress and the public of the government’s regulatory plans.<br />
<br />
President Reagan, in 1987 and 1988, issued three additional executive orders, dealing with federalism, interference with property rights (which is still in effect), and the family. OMB was given a role in ensuring coordination of regulatory policy in these areas. President Bush basically continued the program of presidential review of agency rulemaking established by President Reagan, although due to congressional opposition to OIRA actions, President Bush’s nominee to head OIRA was not confirmed. To counter this weakening of OIRA’s authority, President Bush created the Council on Competitiveness, headed by Vice President Quayle, and gave it authority to intervene in major agency rulemakings. Several of the Council’s interventions provoked intense criticisms leading up to the 1992 elections.<br />
<br />
===The Clinton Executive Order—Executive Order 12866===<br />
With the election of President Clinton, one of his first actions was an attempt to reestablish some bipartisan consensus on rulemaking review. His nominee as OIRA Administrator was the first subcabinet nominee to be appointed. Following the example of the Reagan Administration, President Clinton then set out to redraft the extant Executive Order and produced Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], on September 30, 1993. This Executive Order, which remains operative, carries over many of the principles of Executive Order 12291 and Executive Order 12498 and made some significant modifications that simplified the process, made it more selective, and introduced more transparency into the OMB/agency consultations. In drafting this Executive Order, the Clinton Administration followed many of the suggestions in ACUS [https://www.acus.gov/sites/default/files/documents/88-9.pdf Recommendation 88-9]. <br />
<br />
The Executive Order begins with a lengthy “Statement of Regulatory Philosophy and Principles,” which are quite similar to those in Executive Order 12291 except that it specifies that measurement of costs and benefits should include both quantifiable and qualitative measures. As with previous Orders, Executive Order 12866 retains the traditional (since 1978) level of $100 million annual effect on the economy for those major rules (now referred to as “economically significant” rules) that must be accompanied by cost-benefit assessments when forwarded to OIRA as proposed and final rules.<br />
<br />
Executive Order 12866 also retains the OIRA review process for other rules, although it only requires that “significant regulatory actions” be subject to review. This includes those $100 million rules plus others that have material adverse effects on “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” It also includes rules that may materially alter the budgetary impact of benefit programs or the rights of recipients, that raise “novel legal or policy issues,” or are inconsistent or interfere with actions taken by another agency. The process established for identifying such “significant regulatory actions” relies on agency identification of them in the first instance, vetted by OIRA. Rules that are not so identified may be issued without OIRA review. This selectivity streamlined the review process considerably and made it possible to include, for the first time, a deadline (of 90 days, with one 30-day extension allowed) for completion of OIRA review. In the event of an unresolved dispute between OIRA and the agency, the Vice President is directed to make the decision (or recommend one to the President).<br />
<br />
The review process set forth in the Executive Order made significant improvements in transparency. Following an ACUS recommendation closely, it provides that after the agency has concluded its rulemaking it should make available to the public all submissions to OIRA and identify all changes made in the rule, noting those made at the behest of OIRA. In addition, OIRA, for its part, must regularize the way it receives any outside communications concerning an agency rule that is subject to review. Only the Administrator or her designee may receive such communications. OIRA must forward any such communications to the agency within ten days, invite agency officials to any meetings held with outsiders, and maintain a public log of all such contacts. At the end of the proceeding OIRA must also make available all documents exchanged with the agency.<br />
<br />
In place of the Reagan Executive Order 12498 on regulatory planning, the Clinton Order establishes its own yearly planning mechanism. It continues the semiannual publication of the [https://www.reginfo.gov/public/do/eAgendaMain Unified Agenda of Regulatory and Deregulatory Actions], which lists all proposed, pending, and completed regulatory and deregulatory actions. And it requires that the October Agenda contain each agency’s annual Regulatory Plans, which must be approved personally by the agency head. These plans must be forwarded to OIRA (and then on to affected agencies, the Vice President and a group of named high-level White House Advisors) by June 1 of each year. The plans are supposed to also include agency determinations on which existing rules are to be reviewed and reconsidered during the ensuing year and “preliminary estimates of the anticipated costs and benefits” of each rule planned for that calendar year. These actions do not represent any sharp break from the practices of previous administrations. However, Executive Order 12866 is a departure in one regard—for the first time the independent regulatory agencies are specifically directed to comply with the planning and agenda provisions (though not with the rule-review process).<br />
<br />
The Clinton Executive Order was generally well received by most observers of the regulatory scene. Its basic approach has remained fundamentally unchanged since its issuance, and OIRA has worked out a stable and workable relationship with the agencies in administering it. The once rather vibrant legal and policy debate over the pros and cons of presidential review has gradually evolved into a fairly broad agreement that it is legal and, if properly administered, is essential to effective executive branch management. Nevertheless, there has been some serious criticism of OIRA’s failure to meet the deadlines set in the Order. <br />
<br />
President Clinton also issued a [https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf presidential directive on plain language] and number of other executive orders that remain in effect concerning: environmental justice in minority populations and low-income populations ([https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO12898envjustice.pdf Executive Order 12898]), civil justice reform ([https://www.govinfo.gov/content/pkg/FR-1996-02-07/pdf/96-2755.pdf Executive Order 12988]), protection of children from environmental risks ([https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Executive Order 13045]), federalism ([https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Executive Order 13132]), and consultation with Indian Tribal Governments ([https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Executive Order 13175]).<br />
<br />
President Bush continued the use of Executive Order 12866, although he did make several significant changes. In 2002, he made some small changes in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review], basically removing the Vice President from the process. In January 2007, in Executive Order 13422, [https://www.govinfo.gov/content/pkg/FR-2007-01-23/pdf/07-293.pdf Further Amendment to Executive Order 12866 on Regulatory Planning and Review], he made more fundamental changes. Most significantly he added a requirement that “significant guidance documents” also be reviewed by OIRA in a way similar to significant regulatory actions. He also required that agencies identify in writing specific “market failures” that necessitate a rulemaking, that agency Regulatory Policy Officers be presidential appointees, that these officers must approve the Regulatory Plan, that aggregate costs and benefits for all rules must be included in the Regulatory Plan, and that agencies consider whether to use “formal” (“on the record”) rulemaking for “complex determinations.” However, as mentioned below, President Obama, upon assuming office, revoked the Bush changes and reinstated the original Clinton order. However, by later memorandum, the requirement that significant guidance documents be reviewed by OIRA was reinstated.<br />
<br />
OIRA did issue a [https://georgewbush-whitehouse.archives.gov/omb/inforeg/oira_review-process.html memorandum] in September 2001 putting its own stamp on the Executive Order 12866 process. The memorandum describes the “general principles and procedures that will be applied by OMB in the implementation of Executive Order 12866 and related statutory and executive authority.”<br />
<br />
Significantly, during the Bush Administration, OIRA also announced several new initiatives in its review process. First, it made extensive use of its website to publish its guidelines and other information pertaining to its review process and specific rule reviews. This continues today. Second, it began the practice of issuing public “return letters” that send rules back to the agency for reconsideration, “review letters” that comment on aspects of a particular rule review, and “prompt letters,” which are sent on OMB’s initiative and contain suggestions for new or stronger regulations. While these letters are still posted on [https://www.reginfo.gov/public/do/eoReturnLetters reginfo.gov], the Obama and the Trump Administrations have made little use of this practice. <br />
<br />
More importantly, during the Bush Administration, OMB issued four far-reaching documents affecting the regulatory process that remain in effect today. In 2003 it issued a revised [https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/ OMB Circular A-4], which provides guidance on the development of regulatory analyses. OMB also issued a more far-reaching and controversial [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf Peer Review Bulletin] in December 2004, which requires administrative agencies to conduct a peer review on all “influential regulatory information that the agency intends to disseminate.” Finally, in 2007, OMB issued an important new government-wide [https://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/E7-1066.pdf Bulletin on Good Guidance Practices.] OMB also (along with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy]) issued a set of [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf#:~:text=In%201995%2C%20an%20interagency%20working%20group%2C%20co-chaired%20by,Information%20and%20Regulatory%20Affairs%20%28OIRA%29%2C%20remain%20valid%20today.f Updated Principles for Risk Analysis]. In so doing it declined to finalize a Proposed Risk Assessment Bulletin that the two agencies had issued in January 2006, in favor of updating the Clinton Administration’s Principles issued in 1995. Finally, President Bush issued two other executive orders concerning regulations that remain in effect today: (1) analysis of adverse effects on energy supply, distribution, or use ([https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Executive Order 13211]) and (2) proper consideration of small entities in agency rulemaking ([https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Executive Order 13272]). <br />
<br />
===Developments in the Obama Administration===<br />
Shortly after taking office, President Obama revoked the Bush Amendments to Executive Order 12866 and directed the Director of OMB, in consultation with regulatory agencies, to produce a set of recommendations for a new executive order on federal regulatory review within 100 days, followed by an unusual request for public comments on the same subject. Almost 200 public comments were received. <br />
<br />
After about a year of internal consideration, the White House finally settled on its approach to OMB review—basically to reaffirm Executive Order 12866—with Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review] on January 18, 2011. In Section 1(b), the Order stated: “This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.”<br />
<br />
It did contain a few new mandates and points of emphasis. Most notably, agencies were urged (as appropriate and within legal constraints) to (1) consider “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts”; (2) “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”; (3) “provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded”; (4) for proposed rules, provide “an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings”; (5) seek public input from affected persons “[b]efore issuing a notice of proposed rulemaking”; (6) “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice”; (7) “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned”; and (8) “[w]ithin 120 days of the date of this order, . . . develop and submit to [OIRA] a preliminary plan” for periodically reviewing “its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” <br />
<br />
The one action mandate in the new Executive Order was for agencies to develop plans for retrospective review of their existing regulations. On May 26, 2011, the OIRA Administrator announced the results of this effort. On July 11, 2011, President Obama issued Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], which extended the terms of Executive Order 13563 to independent regulatory agencies. On September 15, 2015, President Obama issued Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People]. Noting the value of insights from behavioral science to improve the “effectiveness and efficiency of Government.”<br />
<br />
===Developments in the Trump Administration===<br />
Shortly after taking office, President Trump issued Executive Order 13771, [https://www.govinfo.gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf Reducing Regulation and Controlling Regulatory Costs,] which requires agencies to identify at least two regulations to be repealed for every proposed or promulgated regulation. 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. The order directed the Director of OMB to provide agency heads with guidance addressing the processes for measuring regulatory costs, the costs of existing regulations, what qualifies as new and offsetting regulations, and situations that would require waivers of the order’s requirements. OIRA issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2017/M-17-21-OMB.pdf#:~:text=This%20guidance%2C%20in%20the%20form%20of%20Questions%20and,Regulatio%20ns.%20go%20v%20in%20docket%20ID%20OMB-2017-0002. Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs”] to assist agencies in carrying out these requirements.<br />
<br />
President Trump also issued Executive Order 13777, [https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf Enforcing the Regulatory Reform Agenda]. This order requires the head of each agency to designate an official as its Regulatory Reform Officer (RRO) who would implement initiatives and policies including Executive Order 13771, Executive Order 12866, and Section 6 of Executive Order 13563 regarding retrospective review. All agencies must also form a Regulatory Reform Task Force made up of the RRO, the Regulatory Policy Officer, a representative from the central policy office, and three senior agency officials if the agency is listed in 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 901(b)(1)] (the executive departments, EPA, and NASA), which “shall evaluate existing regulations . . . and make recommendations to the agency head regarding their repeal, replacement, or modification.” In making these determinations, the task forces should focus on regulations that (1) “eliminate jobs, or inhibit job creation;” (2) “are outdated, unnecessary, or ineffective;” (3) “impose costs that exceed benefits;” (4) “create serious inconsistency or otherwise interfere with regulatory initiatives and policies;” (5) “are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001, . . . in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or” (6) “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” The Executive Order also requires agency heads to prioritize regulations that the Regulatory Reform Task Force identifies as outdated, unnecessary, or ineffective when implementing regulatory offsets under Executive Order 13771.<br />
<br />
Finally, President Trump issued Executive Order 13783, [https://www.govinfo.gov/content/pkg/FR-2017-03-31/pdf/2017-06576.pdf Promoting Energy Independence and Economic Growth,] which directs agencies to review regulations that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” This order also revoked Executive Order 13653, [https://www.govinfo.gov/content/pkg/FR-2013-11-06/pdf/2013-26785.pdf Preparing the United States for the Impact of Climate Change], and memoranda under the Obama Administration related to climate change.<br />
<br />
===Developments in the Biden Administration===<br />
Within his first two months in office, President Biden rescinded several of President Trump’s executive orders related to the rulemaking process. In addition, President Biden issued a memorandum titled Modernizing Regulatory Review. This memorandum explicitly reaffirms Executive Orders 12,866 and 13,563. Additionally, it directs the OMB Director to work with agencies to produce a set of recommendations that improves and modernizes regulatory review. The memorandum specifies that these recommendations should include concrete suggestions on how the regulatory review process can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Furthermore, the memorandum specifies that the recommendations should, among other actions, include proposed reforms to Circular A-4 to promote these goals; suggest procedures that take into account distributional impacts in regulatory analyses; propose how OIRA can partner with agencies to “explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits”; and determine an appropriate approach to the review of guidance documents.<br />
<br />
On April 6, 2023, President Biden issued Executive Order 14094, [https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ Modernizing Regulatory Review], which reaffirmed and amended Executive Order 12,866 § 3(f)’s definition of “significant regulatory action” to require OIRA review for rulemakings having an annual effect on the economy of $200 million or more. It also reaffirmed the Biden Administration’s commitment to distributive analysis and equity, as well as proactive public engagement in rulemaking. In addition to the Executive Order, the Biden Administration also issued revisions to Circulars [https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf A-4] and [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A94/a094.pdf A-94] for public comment, as well as a [https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf memorandum] regarding implementation of the Executive Order.<br />
<br />
==Bibliography==<br />
===Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg33312/pdf/CHRG-110hhrg33312.pdf Amending Executive Order 12866: Good Governance or Regulatory Usurpation?], Hearing Before Subcomm. on Commercial and Admin. Law, H. Comm. of the Judiciary, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg86439/pdf/CHRG-108hhrg86439.pdf How to Improve Regulatory Accounting: Costs, Benefits and Impacts of Federal Regulations], Hearing Before Subcomm. on Energy Policy, Nat. Res. and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004) (statement of John D. Graham, Administrator of OIRA).<br />
*OIRA Insight, Reform, and Accountability Act, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt19/pdf/CRPT-115hrpt19-pt1.pdf H.R. Rep. No. 115-19] (2017).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg20632/pdf/CHRG-114hhrg20632.pdf Assessing the Obama Years: OIRA and Regulatory Impacts on Jobs, Wages and Economic Recovery], Hearing Before Subcomm. On Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2016) ([https://judiciary.house.gov/hearing/assessing-obama-years-oira-regulatory-impacts-jobs-wages-economic-recovery/ video]).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26026/pdf/CHRG-114hhrg26026.pdf Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking], Hearing Before Subcomm. on Health Care, Benefits and Admin. Rules & Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/challenges-facing-oira-ensuring-transparency-effective-rulemaking/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82203/pdf/CHRG-113hhrg82203.pdf Reducing Red Tape: The New OIRA Administrator’s Perspective], Hearing Before H. Comm. on Small Bus., 113th Cong. (2013).<br />
<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on the Costs and Benefits of Regulations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Report to Congress on the Costs and Benefits of Federal Regulations (Sept. 30, 1997). Notice of availability of draft report and request for comments, 62 Fed. Reg. 39352 (July 22, 1997).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport1998.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (January 1999). Notice of availability of draft report and request for comments, 63 Fed. Reg. 44034 (Aug. 17, 1998), extended 63 Fed. Reg. 49935 (Sept. 18, 1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2000fedreg-charts.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (June 2000). Notice of availability of draft report and request for comments, 65 Fed. Reg. 1296 (Jan. 7, 2000); extended 65 Fed. Reg. 4447 (Jan. 27, 2000) and 65 Fed. Reg. 7198 (Feb. 7, 2000).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2001). Notice of availability of draft report and request for comments, 66 Fed. Reg. 22041 (May 2, 2001); extended 66 Fed. Reg. 34963 (July 2, 2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2002). Notice of availability of draft report and request for comments, 67 Fed. Reg. 15014 (Mar. 28, 2002).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (September 2003). Notice of availability of draft report and request for comments, 68 Fed. Reg. 15772 (Apr. 1, 2003).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2004). Notice of availability of draft report and request for comments, 69 Fed. Reg. 7987 (Feb. 20, 2004).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2005). Notice of availability of draft report and request for comments, 70 Fed. Reg. 14735 (Mar. 23, 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2007). Notice of availability of draft report and request for comments, 71 Fed. Reg. 19213 (Apr. 13, 2006).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2008). Notice of availability of draft report and request for comments, 72 Fed. Reg. 11061 (Mar. 12, 2007).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2009). Notice of availability of draft report and request for comments, 73 Fed. Reg. 55169 (Sept. 24, 2008).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Jan. 27, 2010). Notice of availability of draft report and request for comments, 74 Fed. Reg. 48101 (Sept. 21, 2009).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (July 2010). Notice of availability of draft report and request for comments, 75 Fed. Reg. 22630 (Apr. 29, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2011). Notice of availability of draft report and request for comments, 76 Fed. Reg. 18260 (Apr. 1, 2011).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (April 2013). Notice of availability of draft report and request for comments, 77 Fed. Reg. 22003 (Apr. 12, 2012).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (May 2014). Notice of availability of draft report and request for comments, 78 Fed. Reg. 29780 (May. 21, 2013).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 15, 2015). Notice of availability of draft report and request for comments, 72 Fed. Reg. 37776 (July 2, 2014).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Mar. 10, 2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/12/draft_2017_cost_benefit_report.pdf 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Feb. 23, 2018).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Program of the United States Government'' (1987-1988) (and through 1990-91).<br />
*''Report on Executive Order No. 12866'', 59 Fed. Reg. 24276 (May 10, 1994).<br />
*''More Benefits Fewer Burdens—Creating a Regulatory System that Works For the American People'', A Report to the President on the Third Anniversary of Executive Order 12866 (1996).<br />
</div><br />
<br />
===ACUS Documents===<br />
====Recommendations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*88-9 [https://www.acus.gov/sites/default/files/documents/88-9.pdf Presidential Review of Agency Rulemaking]<br />
*93-4 [https://www.acus.gov/sites/default/files/documents/93-4.pdf Improving the Environment for Agency Rulemaking]<br />
*95-3 [https://www.acus.gov/sites/default/files/documents/95-3.pdf Review of Existing Agency Regulations]<br />
*2011-6 [https://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf International Regulatory Cooperation]<br />
*2012-5 [https://www.acus.gov/sites/default/files/Final-Recommendation-2012-5-Improving-Agency-Coordination.pdf Improving Coordination of Related Agency Responsibilities]<br />
*2013-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202013-2%20%28Benefit-Cost%20Analysis%29_0.pdf Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%25202014-5%2520%2528Retrospective%2520Review%2529_1.pdf Retrospective Review of Agency Rules]<br />
*2015-1 [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Recommendation%20FINAL_0.pdf Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2017-3 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-3%20%28Plain%20Language%20in%20Regulatory%20Drafting%29.pdf Plain Language in Regulatory Drafting]<br />
*2017-6 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-6%20%28Learning%20from%20Regulatory%20Experience%29_0.pdf Learning from Regulatory Experience]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
</div><br />
===CRS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Maeve P. Carey, RL32240, ''The Federal Rulemaking Process: An Overview'' (June 17, 2013).<br />
*Maeve P. Carey, R41974, ''Cost-Benefit and Other Analysis Requirements in the Rulemaking Process'' (Dec. 9, 2014).<br />
*Vivian S. Chu & Daniel T. Shedd, R42720, ''Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues'' (Sept. 10, 2012).<br />
*Vivian S. Chu & Daniel T. Shedd, RS20846, ''Executive Orders: Issuance, Modification, and Revocation'' (Apr. 6, 2014).<br />
*Curtis Copeland, RL33862, ''Changes to the OMB Regulatory Review Process by Executive Order 13422'' (Jan. 3, 2008).<br />
*Curtis Copeland, RL32397, ''Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs'' (June 9, 2009).<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/RCED84-62, [https://www.gao.gov/assets/150/141408.pdf Cost-Benefit Analysis Can Be Useful in Assessing Environmental Regulations, Despite Limitations] (1984).<br />
*T-GGD-99-93, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-99-93/pdf/GAOREPORTS-T-GGD-99-93.pdf Federalism: Implementation of Executive Order 12612 in the Rulemaking Process] (1999).<br />
*GAO/T-GGD-99-131, [https://www.gao.gov/assets/110/108000.pdf Federalism: Previous Initiatives Have Had Little Effect on Agency Rulemaking] (1999).<br />
*GAO/ GGD-99-59, [https://www.gao.gov/assets/160/156562.pdf Regulatory Accounting: Analysis of OMB’s Reports on the Costs and Benefits of Federal Regulation] (1999).<br />
*GAO/GGD-94-28, [https://www.gao.gov/assets/220/218925.pdf Regulatory Burden: Recent Studies, Industry Issues, and Agency Initiatives] (1993).<br />
*GAO/GGD-97-2, [https://www.gao.gov/assets/160/155661.pdf Regulatory Burden: Measurement Challenges and Concerns Raised by Selected Companies] (1996).<br />
*GAO/RCED-98-142, [https://www.gao.gov/assets/160/156173.pdf Regulatory Reform: Agencies Could Improve Development, Documentation, and Clarity of Regulatory Economic Analysis] (1998).<br />
*GAO/GGD-98-31, [https://www.gao.gov/assets/230/225071.pdf Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always Clearly Documented] (1998).<br />
*GAO/ PEMD-95-18BR, [https://www.gao.gov/assets/80/78970.pdf Regulatory Reform: Information on Costs, Cost-Effectiveness, and Mandated Deadlines for Regulations] (1995).<br />
*GAO-03-1015, [https://www.gao.gov/assets/240/239832.pdf Regulatory Takings: Implementation of Executive Order on Government Actions Affecting Private Property Use] (2003).<br />
*GAO-03-929, [https://www.gao.gov/assets/160/157476.pdf Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews] (2003).<br />
*GAO-05-289, [https://www.gao.gov/assets/250/247171.pdf Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules] (2005).<br />
*GAO-09-205, [https://www.gao.gov/assets/290/288538.pdf Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews] (2009).<br />
*GAO-13-588, [https://www.gao.gov/assets/660/656488.pdf International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency Guidance] (2013).<br />
*GAO-14-423T, [https://www.gao.gov/assets/670/661540.pdf Federal Rulemaking: Regulatory Review Processes Could Be Enhanced] (2014).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-14-519, [https://www.gao.gov/assets/670/664872.pdf Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses] (2014).<br />
*GAO-14-714, [https://www.gao.gov/assets/670/665745.pdf Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent] (2014).<br />
*GAO-15-368, [https://www.gao.gov/assets/670/669688.pdf Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices] (2015).<br />
*GAO-15-718, [https://www.gao.gov/assets/680/672572.pdf Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees] (2015).<br />
*GAO-16-720, [https://www.gao.gov/assets/680/679518.pdf Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance] (2016).<br />
*GAO-18-22, [https://www.gao.gov/assets/690/687875.pdf Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions] (2017).<br />
*GAO-18-183, [https://www.gao.gov/assets/700/690624.pdf Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance During and at the End of Presidents’ Terms] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Office of Legal Counsel, ''Op. on Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498''.<br />
*Office of Legal Counsel, Memorandum from Larry L. Simms, Acting Assistant Attorney General, [https://www.justice.gov/file/22586/download Proposed Executive Order Entitled “Federal Regulation,”] 5 Op. O.L.C. 59 (1981).<br />
*Council on Envtl. Quality, [https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).<br />
*Envtl. Protection Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/contsetc.pdf The Benefits and Costs of the Clean Air Act, 1970-1990]—Draft Report for Congress (April 1997).<br />
*Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, [https://ws680.nist.gov/publication/get_pdf.cfm?pub_id=200118 Tenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment] (2007).<br />
*Office of the Vice President, ''Creating a Government That Works Better and Costs Less, Improving Regulatory Systems'', National Performance Review (1993).<br />
*Statement #18, [https://www.acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf Improving the Timeliness of OIRA Regulatory Review], 78 Fed. Reg. 76275 (Dec. 17, 2013).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''OIRA Thirtieth Anniversary Conference'', 63 Admin. L. Rev. (special ed.) (2011).<br />
*ABA Section of Admin. Law & Regulatory Practice, [https://www.americanbar.org/content/dam/aba/administrative/administrative_law/Final%20POTUS%20Report%2010-26-16.authcheckdam.pdf Report: Improving the Administrative Process: A Report to the President-Elect of the United] (2016), 69 Admin. L. Rev. 205 (2017).<br />
*Rebecca Adams, ''Regulating the Rule-Makers: John Graham at OIRA'', CQ Weekly 520 (Feb. 23, 2002).<br />
*Joseph E. Aldy, [https://www.acus.gov/sites/default/files/documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy] (Nov. 17, 2014) (report to ACUS).<br />
*Robert A. Anthony, ''Executive Order, OMB Bulletin Focus on Guidances'', 32 Admin. L. & Reg. News 10, Spring 2007.<br />
*William D. Araiza, ''Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking'', 54 Admin. L. Rev. 611 (2002).<br />
*Donald R. Arbuckle, ''Obscure But Powerful: Who Are Those Guys?'', 63 Admin. L. Rev. 131 (special ed.) (2011).<br />
*Nicholas Bagley & Richard L. Revesz, ''Centralized Oversight of the Regulatory State'', 106 Colum. L. Rev. 1260 (2006).<br />
*Stephen J. Balla, Jennifer M. Deets, & Forrest Maltzman, ''Outside Communications and OIRA Review of Agency Regulations'', 63 Admin. L. Rev. 149 (special ed.) (2011).<br />
*Rachel Bayefsky, Note, [https://www.yalelawjournal.org/pdf/1732.Bayefsky.1782_u52fptmb.pdf Dignity as a Value in Agency Cost-Benefit Analysis], 123 Yale L.J. 1732 (2014).<br />
*Josh Blackman, [https://illinoislawreview.org/wp-content/uploads/2018/03/Blackman.pdf Presidential Maladministration], 2018 U. Ill. L. Rev. 397 (2018).<br />
*James F. Blumstein, ''Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues'', 51 Duke L. J. 851 (2001).<br />
*Alexander Bolton, Rachel Augustine Potter, & Sharece Thrower, ''Organizational Capacity, Regulatory Review, and the Limits of Political Control'', 32 J. L. Econ. & Org. 242 (2016).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1490&context=mlr Inside the Administrative State: A Critical Look at the Practice of Presidential Control], 105 Mich. L. Rev. 47 (2006).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1445&context=mlr Legitimacy, Selectivity, and the Disunitary Executive: A Reply to Sally Katzen], 105 Mich. L. Rev. 1511 (2007).<br />
*Harold H. Bruff, ''Presidential Management of Agency Rulemaking'', 57 Geo. Wash. L. Rev. 533 (1989).<br />
*Reeve T. Bull, ''Building a Framework for Governance: Retrospective Review and Rulemaking Petitions'', 67 Admin. L. Rev. 265 (2015).<br />
*Ming H. Chen, ''Administrator-in-Chief: The President and Executive Action in Immigration Law'', 69 Admin. L. Rev. 347 (2017).<br />
*John C. Coates IV, [https://www.yalelawjournal.org/pdf/a.882.Coates.1011_owe353wf.pdf Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications], 124 Yale L.J. 882 (2015).<br />
*Cary Coglianese, [http://yalejreg.com/moving-forward-with-regulatory-lookback/ Moving Forward with Regulatory Lookback], 30 Yale J. on Reg. Online 57 (2013).<br />
*Cary Coglianese, ''The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State'', 69 Admin. L. Rev. 43 (2017).<br />
*Cary Coglianese, [http://www.aulawreview.org/au_law_review/wp-content/uploads/2018/02/02-Coglianese_67AMULREV733.pdf Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel Cole, [https://www.law.ua.edu/pubs/lrarticles/Volume%2064/Issue%201/2%20Cole%2055%20-%2089.pdf Law, Politics, and Cost-Benefit Analysis], 64 Ala. L. Rev. 55 (2012).<br />
*John Conyers, Jr., Henry C. Johnson, Jr., & David N. Cicilline, [http://harvardjol.com/wp-content/uploads/2017/05/HLL201-1.pdf The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration], 54 Harv. J. on Legis. 365 (2017).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Final%20BCA%20Report%204-30-13.pdf Economic Analysis and Independent Regulatory Agencies] (Apr. 30, 2013) (report to ACUS).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Report%20CIRCULATED%20to%20Committees%20on%2010-21-13.pdf Length of Rule Reviews by the Office of Information and Regulatory Affairs] (Oct. 7, 2013) (report to ACUS).<br />
*Curtis Copeland, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2208&context=ulj The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking], 33 Fordham Urb. L.J. 1257 (2006).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Draft%20Report%20041315%20FINAL_0.pdf The Unified Agenda: Proposals for Reform] (Apr. 13, 2015) (report to ACUS).<br />
*Robin Kundis Craig, ''The Bush Administration’s Use and Abuse of Rulemaking. Part I: The Rise of OIRA'', 28 Admin. & Reg. L. News 8 (Summer 2003).<br />
*Stephen Croley, ''White House Review of Agency Rulemaking: An Empirical Investigation'', 70 U. Chi. L. Rev. 821 (2003).<br />
*Nestor M. Davidson &. Ethan J. Lieb, [https://georgetownlawjournal.org/articles/64/regleprudence/pdf Regleprudence—At OIRA and Beyond], 103 Geo. L.J. 259 (2015).<br />
*Christopher C. DeMuth & Douglas H. Ginsburg, ''White House Review of Agency Rulemaking'', 99 Harv. L. Rev. 1075 (1986).<br />
*Christopher DeMuth, ''OIRA at Thirty'', 63 Admin. L. Rev. 15 (special ed.) (2011).<br />
*Caroline DeWitt, Comment, ''The Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review'', 6 Admin. L. J. Am. U. 759 (1993).<br />
*Susan E. Dudley, ''Observations on OIRA’s Thirtieth Anniversary'', 63 Admin. L. Rev. 113 (special ed.) (2011).<br />
*Susan E. Dudley, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1006&context=caselrev Improving Regulatory Accountability: Lessons From the Past and Prospects for the Future], 65 Case W. Res. L. Rev. 1027 (2015).<br />
*E. Donald Elliott, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4231&context=lcp TQM’ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It], 57 Law & Contemp. Probs. 167 (1994).<br />
*Blake Emerson & Cheryl Blake, [https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20Drafting_Final%20Report.pdf Plain Language in Regulatory Drafting] (Dec. 8, 2017) (report to ACUS).<br />
*Jaclyn L. Falk, Comment, [https://cpb-us-w2.wpmucdn.com/usfblogs.usfca.edu/dist/7/272/files/2014/09/The-Behind-Closed-Door-Policy-Executive-Influence-in-the-Environmental-Protection-Agencys-Informal-Rulemaking.pdf The Behind Closed Door Policy: Executive Influence in the Environmental Protection Agency’s Informal Rulemaking], 47 U.S.F. L. Rev. 593 (2013).<br />
*Cynthia R. Farina, ''Undoing the New Deal Through the New Presidentialism'', 22 Harv. J. L. & Pub. Pol’y 227 (1998).<br />
*Scott Farrow, ''Improving Regulatory Performance: Does Executive Office Oversight Matter?'' (2001).<br />
*Arthur Fraas, ''Observations on OIRA’s Policies and Procedures'', 63 Admin. L. Rev. (special ed.) 79 (2011).<br />
*Arthur Fraas & Randall Lutter, ''On the Economic Analysis of Regulations at Independent Regulatory Commissions'', 63 Admin. L. Rev. 213 (special ed.) (2011).<br />
*Jody Freeman & Jim Rossi, [https://www.acus.gov/sites/default/files/documents/Freeman-Rossi-ACUS-Report-5-30-12-PDF.pdf Improving Coordination of Related Agency Responsibilities] (May 30, 2012) (report to ACUS).<br />
*William Funk “Agency Oversight by the Political Branches,” ch. 11 in Section on Administrative Law and Regulatory Practice, ''A Guide to Judicial and Political Review of Federal Agencies'' 259-304 (2d ed. Michael E. Herz, Richard Murphy & Kathryn Watts eds., 2015).<br />
*Margaret Gilhooley, [https://journals.iupui.edu/index.php/inlawrev/article/view/2956/2879 Executive Oversight of Administrative Rulemaking: Disclosing the Impact], 25 Ind. L. Rev. 299 (1991).<br />
*John D. Graham & Cory R. Liu, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_425_Graham_Liu-1.pdf Regulatory and Quasi-Regulatory Activity Without OMB and Cost-Benefit Review], 37 Harv. J.L. & Pub. Pol’y 425 (2014).<br />
*John D. Graham, Paul R. Noe & Elizabeth L. Branch, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2198&context=ulj Managing the Regulatory State: The Experience of the Bush Administration], 33 Fordham Urb. L. J. 953 (2006).<br />
*Wendy L. Gramm, ''Regulatory Review Issues, October 1985–February 1988'', 63 Admin. L. Rev. 27 (special ed.) (2011).<br />
*Abner S. Greene, ''Checks and Balances in an Era of Presidential Lawmaking'', 61 U. Chi. L. Rev. 123 (1994).<br />
*Robert W. Greene, [https://rutgerspolicyjournal.org/sites/jlpp/files/Greene.pdf Improving U.S. Financial Regulation Through OIRA Review & Robust Regulatory Analysis Standards], 14 Rutgers J.L. & Pub. Pol’y 89 (2016).<br />
*Sarah Grimmer, Note, ''Public Controversy Over Peer Review'', 57 Admin. L. Rev. 275 (2005).<br />
*Zachary J. Gubler, [https://www.acus.gov/sites/default/files/documents/ZGubler%20ACUS%20Final%20Report%2811-17%29.pdf Regulatory Experimentation] (Nov. 17, 2017) (report to ACUS).<br />
*Hiba Hafiz, [http://wisconsinlawreview.org/wp-content/uploads/2018/01/Hafiz-Final.pdf Economic Analysis of Labor Regulation], 2017 Wis. L. Rev. 1115 (2017).<br />
*Robert W. Hahn, Risks, ''Costs, and Lives Saved: Getting Better Results From Regulation'', (Oxford Univ. Press & AEI Press, 1996).<br />
*Robert W. Hahn & John A. Hird, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1177&context=yjreg The Costs and Benefits of Regulation: Review and Synthesis], 8 Yale J. on Reg. 233 (1991).<br />
*Lisa Heinzerling, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2202&context=ulj Statutory Interpretation in the Era of OIRA], 33 Fordham Urb. L. J. 1097 (2006).<br />
*Lisa Heinzerling, [https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1741&context=pelr Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House], 31 Pace Envtl. L. Rev. 325 (2014).<br />
*Thomas D. Hopkins, ''The Evolution of OIRA Oversight—CWPS to OIRA'', 63 Admin. L. Rev. 71 (special ed.) (2011).<br />
*Elena Kagan, ''Presidential Administration'', 114 Harv. L. Rev. 2245 (2001).<br />
*Sally Katzen, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1444&context=mlr A Reality Check on an Empirical Study: Comments on “Inside the Administrative State,”] 105 Mich. L. Rev. 1497 (2007).<br />
*Sally Katzen, ''OIRA at Thirty: Reflections and Recommendations'', 63 Admin. L. Rev. 103 (special ed.) (2011).<br />
*Cornelius M. Kerwin & Scott R. Furlong, ''Rulemaking: How Government Agencies Write Law and Make Policy'' (CQ Press, 4th ed. 2011).<br />
*Peter Ketcham-Colwill, [https://www.gwlr.org/wp-content/uploads/2018/02/82-Geo.-Wash.-L.-Rev.-1622.pdf Presidential Influence Over Agency Rulemaking Through Regulatory Review], 82 Geo. Wash. L. Rev. 1622 (2014).<br />
*Robert E. Litan & William D. Nordhaus, ''Reforming Federal Regulation'' (Yale Univ. Press, 1983).<br />
*Michael A. Livermore, [http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/Livermore_Art.pdf Cost-Benefit Analysis and Agency Independence], 81 U. Chi. L. Rev. 609 (2014).<br />
*Michael A. Livermore & Richard L. Revesz, [https://georgetownlawjournal.org/articles/119/regulatory-review-capture-agency/pdf Regulatory Review, Capture, and Agency Inaction], 101 Geo. L.J. 1337 (2013)<br />
*Jeffrey S. Lubbers, ''A Guide to Federal Agency Rulemaking'' (ABA Section of Admin. Law & Regulatory Practice, 5th ed. 2012).<br />
*Jeffrey S. Lubbers, ''OMB to Require Peer Review for Regulatory Science Documents'', 29 Admin. L. & Reg. News 3, Fall 2003.<br />
*Maureen Mahon, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1179&context=law_lawreview Proceed With Caution: The Implications of the OMB Peer Review Guidelines on Precautionary Legislation], 84 Wash. U. L. Rev. 461 (2006).<br />
*Jonathan S. Masur & Eric A. Posner, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4712&context=clr Unquantified Benefits and the Problem of Regulation Under Uncertainty], 102 Cornell L. Rev. 87 (2016).<br />
*Randolph J. May, ''OMB’s Peer Review Proposal—Swamped by Science?'', 29 Admin. & Reg. L. News 4, Spring 2004.<br />
*Michael McCarthy, [https://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91-1] (Oct. 19, 2011) (report to ACUS).<br />
*Thomas O. McGarity, ''Presidential Control of Regulatory Agency Decisionmaking'', 36 Am. U. L. Rev. 443 (1987).<br />
*Thomas O. McGarity, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1538&context=dlj Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age], 61 Duke L.J. 1671 (2012).<br />
*Patrick A. McLaughlin & Jerry Ellig, ''Does OIRA Review Improve the Quality of Regulatory Impact Analysis? Evidence from the Final Year of the Bush II Administration'', 63 Admin. L. Rev. 179 (special ed.) (2011).<br />
*Emily Hammond Meazell, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1539&context=dlj Presidential Control, Expertise, and the Deference Dilemma], 61 Duke L.J. 1763 (2012).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1208&context=articles Disclosing “Political” Oversight of Agency Decision Making], 108 Mich. L. Rev. 1127 (2010).<br />
*Nina Mendelson, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Mendelson_May.pdf Another Word on the President’s Statutory Authority over Agency Action], 79 Fordham L. Rev. 2455 (2011).<br />
*Nina A. Mendelson & Jonathan B. Wiener, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_447_Mendelson_Wiener.pdf Responding to Agency Avoidance of OIRA], 37 Harv. J.L. & Pub. Pol’y 447 (2014).<br />
*Gillian E. Metzger & Kevin M. Stack, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mlr Internal Administrative Law], 115 Mich. L. Rev. 1239 (2017).<br />
*James C. Miller III, ''The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future'', 63 Admin. L. Rev. 93 (special ed.) (2011).<br />
*Alan B. Morrison, ''OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation'', 99 Harv. L. Rev. 1059 (1986).<br />
*William A. Niskanen, ''Clinton Regulation Will Be “Rational”: Interview with Sally Katzen, the New OIRA Administrator'', Regulation Magazine No. 3, at 36 (1993).<br />
*Lars Noah, ''Peer Review and Regulatory Reform'', 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,606 (2000).<br />
*Paul Noe, ''Analyzing the Destruction of Human Capital by Regulations'', 63 Admin. L. Rev. 203 (special ed.) (2011).<br />
*Note, ''Regulatory Analyses and Judicial Review of Informal Rulemaking'', 91 Yale L. J. 739 (1982).<br />
*Note, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol124_%20OIRA%20_avoidance.pdf OIRA Avoidance], 124 Harv. L. Rev. 994 (2011).<br />
*Note, ''The Inflation Impact Statement Program: An Assessment of the First Two Years'', 26 Am. U. L. Rev. 1138 (1977).<br />
*Jennifer Nou, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_nou.pdf Agency Self-Insulation Under Presidential Review], 126 Harv. L. Rev. 1755 (2013).<br />
*Jennifer Nou & Edward H. Stiglitz, [https://southerncalifornialawreview.com/wp-content/uploads/2018/01/89_733.pdf Strategic Rulemaking Disclosure], 89 S. Cal. L. Rev. 733 (2016).<br />
*Anne Joseph O’Connell, [http://www.virginialawreview.org/sites/virginialawreview.org/files/889.pdf Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State], 94 Va. L. Rev. 889 (2008).<br />
*Erik D. Olson, ''The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291'', 4 Va. J. Nat. Resources L. 1 (1984).<br />
*Eloise Pasachoff, [https://www.yalelawjournal.org/pdf/a.2182.Pasachoff.2290_aqo1aub4.pdf The President’s Budget as a Source of Agency Policy Control], 125 Yale L.J. 2182 (2016).<br />
*Robert V. Percival, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1148&context=dlj Presidential Management of the Administrative State: The Not-So-Unitary Executive], 51 Duke L. J. 963 (2001).<br />
*Robert V. Percival, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Percival_May.pdf Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?], 79 Fordham L. Rev. 2487 (2011).<br />
*Richard J. Pierce, Jr., [http://www.nyujlpp.org/wp-content/uploads/2016/06/Pierce-Regulatory-Budget-Debate-19nyujlpp249.pdf The Regulatory Budget Debate], 19 N.Y.U. J. Legis. & Pub. Pol’y 249 (2016).<br />
*Eric A. Posner & E. Glen Weyl, [https://www.yalelawjournal.org/pdf/Posner-WeylPDF_ijby4z9e.pdf Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms], 124 Yale L.J. Forum 246 (2015).<br />
*Robert L. Rabin, ''Federal Regulation in Historical Perspective'', 38 Stan L. Rev. 1189 (1986).<br />
*Richard L. Revesz, [http://yalejreg.com/articlepdfs/34-JREG-545.pdf Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation], 34 Yale J. On Reg. 545 (2017).<br />
*Richard L. Revesz, [http://www.californialawreview.org/wp-content/uploads/2014/12/02-Revesz.pdf Quantifying Regulatory Benefits], 102 Cal. L. Rev. 1423 (2014).<br />
*Richard L. Revesz & Michael A. Livermore, ''Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health'' (Oxford Univ. Press 2008).<br />
*Delissa Ridgway et al., ''The Council on Competitiveness and Regulatory Review: A “Kinder, Gentler” Approach to Regulation?'', 6 Admin. L. J. Am. U. 691 (1993).<br />
*David B. Rivkin, ''The Unitary Executive and Presidential Control of Executive Branch Rulemaking'', 7 Admin. L. J. Am. U. 309 (1993).<br />
*Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291'', 80 Mich. L. Rev. 193 (1981).<br />
*Arden Rowell, [https://www.law.uci.edu/lawreview/vol4/no4/Rowell.pdf Time in Cost-Benefit Analysis], 4 UC Irvine L. Rev. 1215 (2014).<br />
*Susan Rose-Ackerman, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1153&context=umlr Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review], 65 U. Miami L. Rev. 335 (2011).<br />
*Andrew Rudalevige, [http://lawreview.syr.edu/wp-content/uploads/2015/09/G-Rudalevige-For-Website.pdf Old Laws, New Meanings: Obama’s Brand of Presidential “Imperialism”], 66 Syracuse L. Rev. 1 (2016).<br />
*J.B. Ruhl & James Salzman, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1170&context=law_lawreview In Defense of Regulatory Peer Review], 84 Wash. U. L. Rev. 1 (2006).<br />
*Thomas O. Sargentich, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/The-Emphasis-on-the-Presidency-in-U.S.-Public-Law-An-Essay-Critiquing-Presidential-Administration.pdf The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration], 59 Admin. L. Rev. 1 (2007).<br />
*Peter M. Shane, ''Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking'', 48 Ark. L. Rev. 161 (1995).<br />
*David R. Sheaffer, [https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1178&context=lr The Price of Regulation: Rethinking Executive Review of Agency Rulemaking], 2016 Mich. St. L. Rev. 1091 (2016).<br />
*Sidney Shapiro, [https://www.acus.gov/sites/default/files/documents/gov.acus_.1995.rec_.95-3.pdf Agency Review of Existing Regulations] (Jan. 15, 1995) (report to ACUS).<br />
*Sidney A. Shapiro, ''OMB’s Dubious Peer Review Procedures'', 34 Envtl. L. Rep. (Envtl. L. Inst.) 10,064 (2004).<br />
*Sidney A. Shapiro, ''OMB’s Revised Peer Review Bulletin'', 29 Admin. L. & Reg. News 10 (Summer 2004).<br />
*Sidney A. Shapiro & Richard Murphy, [https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Shapiro-Murphy.pdf Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation], 48 U.C. Davis L. Rev. 1457 (2015).<br />
*Sidney A. Shapiro & Ronald F. Wright, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1160&context=umlr The Future of the Administrative Presidency: Turning Administrative Law Inside-Out], 65 U. Miami L. Rev. 577 (2011).<br />
*Stuart Shapiro, ''OIRA Inside and Out'', 63 Admin. L. Rev. 135 (special ed.) (2011).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Stuart Shapiro & Debra Borie-Holtz, ''The Politics of Regulatory Reform'' (Routledge 2013).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS).<br />
*Peter L. Strauss, ''Overseer or “The Decider”? The President in Administrative Law'', 75 Geo. Wash. L. Rev. 696 (2007).<br />
*Peter L. Strauss, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=caselrev The President and the Constitution], 65 Case W. Res. L. Rev. 1151 (2015).<br />
*Peter L. Strauss & Cass R. Sunstein, ''The Role of the President and OMB in Informal Rulemaking'', 38 Admin. L. Rev. 181 (1986).<br />
*Cass R. Sunstein, Simpler: ''The Future of Government'' (Simon & Schuster, 2013).<br />
*Cass R. Sunstein, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_sunstein.pdf The Office of Information and Regulatory Affairs: Myths and Realities], 126 Harv. L. Rev. 1838 (2013).<br />
*Cass R. Sunstein, [http://www.bu.edu/bulawreview/files/2014/08/SUNSTEINDYSFUNCTION.pdf The Regulatory Lookback], 94 B.U. L. Rev. 579 (2014).<br />
*Jim Tozzi, ''OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding'', 63 Admin. L. Rev. 37 (special ed.) (2011).<br />
*Paul R. Verkuil, ''Jawboning Administrative Agencies: Ex Parte Contacts by the White House'', 80 Colum. L. Rev. 943 (1980).<br />
*Christopher J. Walker, ''Modernizing the Administrative Procedure Act'', 69 Admin. L. Rev. 629 (2017).<br />
*Adam L. Warber, ''Executive Orders and the Modern Presidency: Legislating from the Oval Office'' (Lynne Reiner Publishers 2006).<br />
*Kathryn A. Watts, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1240&context=mlr Controlling Presidential Control], 114 Mich. L. Rev. 683 (2016).<br />
*Christopher E. Wilson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Not-Good-Enough-for-Government-Work-How-OMBs-Good-Guidance-Practices-May-Unintentionally-Complicate-Administrative-Law.pdf Comment: Not Good Enough for Government Work: How OMB’s Good Guidance Practices May Unintentionally Complicate Administrative Law], 59 Admin. L. Rev. 177 (2007).<br />
</div><br />
<br />
===Miscellaneous===<br />
<br />
*National Academy of Public Administration, ''Presidential Management of Rulemaking in Regulatory Agencies'' (1987).<br />
*[http://www.thecre.com/ombpapers/featuredarticles.html Center for Regulatory Effectiveness].<br />
*Competitive Enterprise Institute, [https://cei.org/10KC Ten Thousand Commands].</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Rulemaking_Requirements_from_the_Executive_Office_of_the_President&diff=1688Rulemaking Requirements from the Executive Office of the President2023-08-15T21:33:15Z<p>MGluth: </p>
<hr />
<div>This section discusses the most significant presidential Executive Orders, Bulletins, and Memoranda, which pertain to the rulemaking process or federal regulation. Other executive orders and memoranda may be found in other sections, e.g., those relating to the [[Federal Advisory Committee Act]].<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)], [https://www.whitehouse.gov/omb/ Office of Management and Budget (OMB)]<br />
<br />
==Executive Orders==<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Executive Order 12372, [https://www.archives.gov/federal-register/codification/executive-order/12372.html Intergovernmental Review of Federal Programs], 47 Fed. Reg. 30959 (July 16, 1982).<br />
*Executive Order 12630, [https://www.archives.gov/federal-register/codification/executive-order/12630.html Governmental Actions and Interference with Constitutionally Protected Property Rights], 53 Fed. Reg. 8859 (Mar. 18, 1988).<br />
*Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 ( Oct. 4, 1993).<br />
*Executive Order 12889, [https://www.govinfo.gov/content/pkg/WCPD-1994-01-03/pdf/WCPD-1994-01-03-Pg2639.pdf Implementation of the North American Free Trade Agreement], 58 Fed. Reg. 69681 (Dec. 30, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations], 59 Fed. Reg. 7629 (Feb. 16, 1994).<br />
*Executive Order 12988, [https://www.govinfo.gov/content/pkg/WCPD-1996-02-12/pdf/WCPD-1996-02-12-Pg189.pdf Civil Justice Reform], 61 Fed. Reg. 4729 (Feb. 7, 1996).<br />
*Executive Order 13045, [https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Protection of Children from Environmental Health Risks and Safety Risks], 62 Fed. Reg. 19885 (Apr. 23, 1997).<br />
*Executive Order 13132, [https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Federalism], 64 Fed. Reg. 43255 (Aug. 10, 1999).<br />
*Executive Order 13175, [https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
*Executive Order 13211, [https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use], 66 Fed. Reg. 28355 (May 22, 2001).<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 16, 2002).<br />
*Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review], 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming Executive Order 12866).<br />
*Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], 76 Fed. Reg. 41587 (July 14, 2011).<br />
*Executive Order 13609, [https://www.govinfo.gov/content/pkg/FR-2012-05-04/pdf/2012-10968.pdf Promoting International Regulatory Cooperation], 77 Fed. Reg. 26413 (May 4, 2012).<br />
*Executive Order 13610, [https://www.govinfo.gov/content/pkg/FR-2012-05-14/pdf/2012-11798.pdf Identifying and Reducing Regulatory Burdens], 77 Fed. Reg. 28469 (May 14, 2012).<br />
*Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People], 80 Fed. Reg. 56356 (Sept. 18, 2015).<br />
*Executive Order 13725, [https://www.govinfo.gov/content/pkg/FR-2016-04-20/pdf/2016-09346.pdf Steps to Increase Competition and Better Inform Consumers and Works to Support Continued Growth of the American Economy], 81 Fed. Reg. 23417 (Apr. 20, 2016).<br />
*Executive Order 14094, [https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf Modernizing Regulatory Review], 88 Fed. Reg. 21,879 (Apr. 11, 2023).<br />
</div><br />
<br />
==Table of Executive Order Requirements==<br />
{| class="wikitable"<br />
|+<br />
!Executive Order (EO)<br />
!Date and Administration of Issue<br />
!Action Items<br />
!Does the EO Contain a Statement Regarding Applicability to Independent Agencies?<br />
|-<br />
|[https://www.archives.gov/federal-register/codification/executive-order/12630.html EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights]<br />
|1988 - Reagan<br />
|''General Principles''. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” <br />
<br />
<br />
''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.”<br />
<br />
''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.<br />
<br />
<br />
''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).<br />
<br />
<br />
''Ensuring Compliance.'' OMB and the Department of Justice are responsible for ensuring compliance with the EO.<br />
|No<br />
|-<br />
|[https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf EO 12866 - Regulatory Planning and Review]<br />
|1993 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12889.pdf EO 12889 - Implementation of the North American Free Trade Agreement]<br />
|1993 - Clinton<br />
|''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.”<br />
<br />
<br />
''Exceptions''<br />
<br />
#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)).<br />
#Perishable Goods. Technical regulations relating to perishable goods.<br />
#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.<br />
#Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection.<br />
<br />
''Definitions''<br />
<br />
#Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7).<br />
#Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7).<br />
|No<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf EO 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations]<br />
|1994 - Clinton<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1996-02-07/pdf/96-2755.pdf EO 12988 - Civil Justice Reform]<br />
|1996- Clinton<br />
|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.<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks]<br />
|1997 - Clinton<br />
|''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.”<br />
''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:<br />
<br />
#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.”<br />
#Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/pdf/99-20729.pdf EO 13132 - Federalism]<br />
|1999 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf EO 13175 - Consultation and Coordination with Indian Tribal Governments]<br />
|2000 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2001-05-22/pdf/01-13116.pdf EO 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use]<br />
|2001 - Bush<br />
|''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.<br />
<br />
<br />
''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. <br />
<br />
<br />
''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. <br />
<br />
<br />
''Publication.'' Agencies must publish the Statement or a summary in the related NPRM and final rule.<br />
|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 . . . ."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2002-08-16/pdf/02-21056.pdf EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking]<br />
|2002 - Bush<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf EO 13563 - Improving Regulation and Regulatory Review]<br />
|2011 - Obama<br />
|''General Principles.'' This EO supplements and reaffirms [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 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.<br />
<br />
<br />
''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.”<br />
<br />
<br />
''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.”<br />
<br />
<br />
''Flexible Approaches.'' Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.”<br />
<br />
<br />
''Objectivity with regard to scientific information.'' Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking.<br />
<br />
<br />
''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.”<br />
|Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review <nowiki>[EO] 12866</nowiki>]."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf EO 13579 - Regulation and Independent Regulatory Agencies]<br />
|2011 - Obama<br />
|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 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.”<br />
|Yes. The EO is entirely geared toward independent agencies.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-04/pdf/2012-10968.pdf EO 13609 - Promoting International Regulatory Cooperation]<br />
|2012 - Obama<br />
|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.<br />
|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.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf EO 13610 - Identifying and Reducing Regulatory Burdens]<br />
|2012 - Obama<br />
|Agencies are instructed to institutionalize regular reviews of their previously 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.<br />
|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)."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2016-04-20/pdf/2016-09346.pdf EO 13725 - Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy]<br />
|2016 - Obama<br />
|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. <br />
|Yes. See § 3(b) for relevant text: "Independent agencies are strongly encouraged to comply with the requirements of this order."<br />
|-<br />
|[https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ EO 14094 - Modernizing Regulatory Review]<br />
|2023 - Biden<br />
|Agencies should affirmatively promote public participation in rulemaking and proactively engage interested parties. Regulatory analysis should recognize distributive impacts and equity.<br />
|No.<br />
|}<br />
<br />
==Other White House Bulletins and Memoranda==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-119-1.pdf Federal Participation in the Development and Use of Voluntary Standards and in Conformity Assessment Activities] (1998).<br />
*[https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf Plain Language in Government Writing] (1998).<br />
*[https://obamawhitehouse.archives.gov/omb/inforeg_oira_review_process/ Presidential Review of Agency Rulemaking by OIRA] (2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf Circular No. A-4, New Guidelines for the Conduct of Regulatory Analysis] (2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf Circular A-4, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/CircularA94.pdf Circular A-94, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf Implementation of Modernizing Regulatory Review Executive Order] (Apr. 6, 2023).<br />
*M-05-03, [https://obamawhitehouse.archives.gov/omb/memoranda_fy2005_m05-03 Final Information Quality Bulletin for Peer Review] (2004).<br />
*[https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf Final Bulletin for Agency Good Guidance Practices] (2007).<br />
*M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf Updated Principles for Risk Analysis](2007).<br />
*M-19-14, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf Guidance on Compliance with the Congressional Review Act] (2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01866.pdf Modernizing Regulatory Review] (2021)<br />
</div><br />
<br />
==Overview==<br />
===History of Presidential Oversight of Rulemaking and Regulation===<br />
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. <br />
<br />
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.<br />
<br />
In 1974, President Ford issued an executive order requiring executive branch agencies to prepare an “inflation impact statement” for each “major” federal action. 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” rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to COWPS upon publication of the NPRM. COWPS would review the IIS and, in its discretion, offer informal criticism of the proposal or participate in the public proceedings on the rule. <br />
<br />
President Carter continued presidential review of agency rules by means of Executive Order 12044, ''Improving Government Regulations'', issued in 1978. Under the order, executive agencies were required to: (1) publish semi-annual agendas, describing and giving the legal bases for, any “significant” regulations under development by the agency; (2) establish procedures to identify “significant” rules, to evaluate their need, and to have the agency head assure that the “least burdensome of the acceptable alternatives” was proposed; and (3) prepare a “regulatory analysis” that examined the cost-effectiveness of alternative regulatory approaches for “major rules.”<br />
<br />
President Carter also established a Regulatory Analysis Review Group to review the regulatory analyses prepared for a limited number of proposed “major” rules and to submit comments on the proposed rules during the public comment period. He created another rulemaking review body, the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. These efforts to coordinate agency rulemaking were challenged unsuccessfully in several lawsuits.<br />
<br />
President Reagan acted quickly after taking office to increase control over executive branch rulemaking. On February 17, 1981, the President issued an executive order on federal regulations designed “to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” The new Executive Order 12291, [https://www.archives.gov/federal-register/codification/executive-order/12291.html Federal Regulation], replaced Executive Order 12044, which President Reagan said had “proven ineffective.” <br />
<br />
Executive Order 12291 contained both substantive requirements and procedural steps to be followed in the development and promulgation of new rules. The [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)] in OMB was given responsibility for implementing Executive Order 12291. OMB’s rulemaking review function is supplemented by the powers it was given in the [[Paperwork Reduction Act]] of 1980, by which Congress statutorily established OIRA to, among other things, review and approve or disapprove agency “information collection requests.”<br />
<br />
The Office of Legal Counsel in the U.S. Department of Justice issued an [https://www.justice.gov/file/22586/download opinion] supporting the validity of Executive Order 12291. The opinion stated that the President’s authority to issue the order was based on his constitutional power to “take care that the laws be faithfully executed.” While concluding that any inquiry into Congressional intent in enacting specific rulemaking statutes “will usually support the legality of presidential supervision of rulemaking by Executive Branch agencies,” the opinion stated that presidential supervision of agency rulemaking “is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official.”<br />
<br />
Despite criticism of this new form of presidential review, President Reagan began his second term by expanding the program through Executive Order 12498, [https://www.archives.gov/federal-register/codification/executive-order/12498.html Regulatory Planning Process], which established a “regulatory planning process” with the purpose of helping to “ensure that each major step in the process of rule development is consistent with Administration policy.” <br />
<br />
According to OMB, the problem with regulatory review under Executive Order 12291 was that such review “often came late in the regulatory process, after huge investments of agency time and resources, and often after agency staff commitments to constituents had made it extremely difficult to consider any legally acceptable, but previously ignored, regulatory alternative.” This resulted, OMB said, in the “bureaucracy often present[ing] agency heads with faits accompli.” <br />
<br />
Executive Order 12498’s regulatory planning process was designed to avoid this problem. Under this procedure, the head of each agency was required to determine at the beginning of the regulatory process whether a proposed regulatory venture was “consistent with the goals of the Administration.” At the beginning of the year, Agency heads were to develop a plan for managing the agency’s most significant regulatory actions. OMB then reviewed the plan for consistency with the administration’s program and published the coordinated agency plans in a government-wide document. This document, entitled “Regulatory Program of the United States Government,” governed more than 20 major rulemaking agencies and was published each year during the second Reagan term and the Bush administration to inform Congress and the public of the government’s regulatory plans.<br />
<br />
President Reagan, in 1987 and 1988, issued three additional executive orders, dealing with federalism, interference with property rights (which is still in effect), and the family. OMB was given a role in ensuring coordination of regulatory policy in these areas. President Bush basically continued the program of presidential review of agency rulemaking established by President Reagan, although due to congressional opposition to OIRA actions, President Bush’s nominee to head OIRA was not confirmed. To counter this weakening of OIRA’s authority, President Bush created the Council on Competitiveness, headed by Vice President Quayle, and gave it authority to intervene in major agency rulemakings. Several of the Council’s interventions provoked intense criticisms leading up to the 1992 elections.<br />
<br />
===The Clinton Executive Order—Executive Order 12866===<br />
With the election of President Clinton, one of his first actions was an attempt to reestablish some bipartisan consensus on rulemaking review. His nominee as OIRA Administrator was the first subcabinet nominee to be appointed. Following the example of the Reagan Administration, President Clinton then set out to redraft the extant Executive Order and produced Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], on September 30, 1993. This Executive Order, which remains operative, carries over many of the principles of Executive Order 12291 and Executive Order 12498 and made some significant modifications that simplified the process, made it more selective, and introduced more transparency into the OMB/agency consultations. In drafting this Executive Order, the Clinton Administration followed many of the suggestions in ACUS [https://www.acus.gov/sites/default/files/documents/88-9.pdf Recommendation 88-9]. <br />
<br />
The Executive Order begins with a lengthy “Statement of Regulatory Philosophy and Principles,” which are quite similar to those in Executive Order 12291 except that it specifies that measurement of costs and benefits should include both quantifiable and qualitative measures. As with previous Orders, Executive Order 12866 retains the traditional (since 1978) level of $100 million annual effect on the economy for those major rules (now referred to as “economically significant” rules) that must be accompanied by cost-benefit assessments when forwarded to OIRA as proposed and final rules.<br />
<br />
Executive Order 12866 also retains the OIRA review process for other rules, although it only requires that “significant regulatory actions” be subject to review. This includes those $100 million rules plus others that have material adverse effects on “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” It also includes rules that may materially alter the budgetary impact of benefit programs or the rights of recipients, that raise “novel legal or policy issues,” or are inconsistent or interfere with actions taken by another agency. The process established for identifying such “significant regulatory actions” relies on agency identification of them in the first instance, vetted by OIRA. Rules that are not so identified may be issued without OIRA review. This selectivity streamlined the review process considerably and made it possible to include, for the first time, a deadline (of 90 days, with one 30-day extension allowed) for completion of OIRA review. In the event of an unresolved dispute between OIRA and the agency, the Vice President is directed to make the decision (or recommend one to the President).<br />
<br />
The review process set forth in the Executive Order made significant improvements in transparency. Following an ACUS recommendation closely, it provides that after the agency has concluded its rulemaking it should make available to the public all submissions to OIRA and identify all changes made in the rule, noting those made at the behest of OIRA. In addition, OIRA, for its part, must regularize the way it receives any outside communications concerning an agency rule that is subject to review. Only the Administrator or her designee may receive such communications. OIRA must forward any such communications to the agency within ten days, invite agency officials to any meetings held with outsiders, and maintain a public log of all such contacts. At the end of the proceeding OIRA must also make available all documents exchanged with the agency.<br />
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In place of the Reagan Executive Order 12498 on regulatory planning, the Clinton Order establishes its own yearly planning mechanism. It continues the semiannual publication of the [https://www.reginfo.gov/public/do/eAgendaMain Unified Agenda of Regulatory and Deregulatory Actions], which lists all proposed, pending, and completed regulatory and deregulatory actions. And it requires that the October Agenda contain each agency’s annual Regulatory Plans, which must be approved personally by the agency head. These plans must be forwarded to OIRA (and then on to affected agencies, the Vice President and a group of named high-level White House Advisors) by June 1 of each year. The plans are supposed to also include agency determinations on which existing rules are to be reviewed and reconsidered during the ensuing year and “preliminary estimates of the anticipated costs and benefits” of each rule planned for that calendar year. These actions do not represent any sharp break from the practices of previous administrations. However, Executive Order 12866 is a departure in one regard—for the first time the independent regulatory agencies are specifically directed to comply with the planning and agenda provisions (though not with the rule-review process).<br />
<br />
The Clinton Executive Order was generally well received by most observers of the regulatory scene. Its basic approach has remained fundamentally unchanged since its issuance, and OIRA has worked out a stable and workable relationship with the agencies in administering it. The once rather vibrant legal and policy debate over the pros and cons of presidential review has gradually evolved into a fairly broad agreement that it is legal and, if properly administered, is essential to effective executive branch management. Nevertheless, there has been some serious criticism of OIRA’s failure to meet the deadlines set in the Order. <br />
<br />
President Clinton also issued a [https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf presidential directive on plain language] and number of other executive orders that remain in effect concerning: environmental justice in minority populations and low-income populations ([https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO12898envjustice.pdf Executive Order 12898]), civil justice reform ([https://www.govinfo.gov/content/pkg/FR-1996-02-07/pdf/96-2755.pdf Executive Order 12988]), protection of children from environmental risks ([https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Executive Order 13045]), federalism ([https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Executive Order 13132]), and consultation with Indian Tribal Governments ([https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Executive Order 13175]).<br />
<br />
President Bush continued the use of Executive Order 12866, although he did make several significant changes. In 2002, he made some small changes in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review], basically removing the Vice President from the process. In January 2007, in Executive Order 13422, [https://www.govinfo.gov/content/pkg/FR-2007-01-23/pdf/07-293.pdf Further Amendment to Executive Order 12866 on Regulatory Planning and Review], he made more fundamental changes. Most significantly he added a requirement that “significant guidance documents” also be reviewed by OIRA in a way similar to significant regulatory actions. He also required that agencies identify in writing specific “market failures” that necessitate a rulemaking, that agency Regulatory Policy Officers be presidential appointees, that these officers must approve the Regulatory Plan, that aggregate costs and benefits for all rules must be included in the Regulatory Plan, and that agencies consider whether to use “formal” (“on the record”) rulemaking for “complex determinations.” However, as mentioned below, President Obama, upon assuming office, revoked the Bush changes and reinstated the original Clinton order. However, by later memorandum, the requirement that significant guidance documents be reviewed by OIRA was reinstated.<br />
<br />
OIRA did issue a [https://georgewbush-whitehouse.archives.gov/omb/inforeg/oira_review-process.html memorandum] in September 2001 putting its own stamp on the Executive Order 12866 process. The memorandum describes the “general principles and procedures that will be applied by OMB in the implementation of Executive Order 12866 and related statutory and executive authority.”<br />
<br />
Significantly, during the Bush Administration, OIRA also announced several new initiatives in its review process. First, it made extensive use of its website to publish its guidelines and other information pertaining to its review process and specific rule reviews. This continues today. Second, it began the practice of issuing public “return letters” that send rules back to the agency for reconsideration, “review letters” that comment on aspects of a particular rule review, and “prompt letters,” which are sent on OMB’s initiative and contain suggestions for new or stronger regulations. While these letters are still posted on [https://www.reginfo.gov/public/do/eoReturnLetters reginfo.gov], the Obama and the Trump Administrations have made little use of this practice. <br />
<br />
More importantly, during the Bush Administration, OMB issued four far-reaching documents affecting the regulatory process that remain in effect today. In 2003 it issued a revised [https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/ OMB Circular A-4], which provides guidance on the development of regulatory analyses. OMB also issued a more far-reaching and controversial [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf Peer Review Bulletin] in December 2004, which requires administrative agencies to conduct a peer review on all “influential regulatory information that the agency intends to disseminate.” Finally, in 2007, OMB issued an important new government-wide [https://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/E7-1066.pdf Bulletin on Good Guidance Practices.] OMB also (along with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy]) issued a set of [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf#:~:text=In%201995%2C%20an%20interagency%20working%20group%2C%20co-chaired%20by,Information%20and%20Regulatory%20Affairs%20%28OIRA%29%2C%20remain%20valid%20today.f Updated Principles for Risk Analysis]. In so doing it declined to finalize a Proposed Risk Assessment Bulletin that the two agencies had issued in January 2006, in favor of updating the Clinton Administration’s Principles issued in 1995. Finally, President Bush issued two other executive orders concerning regulations that remain in effect today: (1) analysis of adverse effects on energy supply, distribution, or use ([https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Executive Order 13211]) and (2) proper consideration of small entities in agency rulemaking ([https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Executive Order 13272]). <br />
<br />
===Developments in the Obama Administration===<br />
Shortly after taking office, President Obama revoked the Bush Amendments to Executive Order 12866 and directed the Director of OMB, in consultation with regulatory agencies, to produce a set of recommendations for a new executive order on federal regulatory review within 100 days, followed by an unusual request for public comments on the same subject. Almost 200 public comments were received. <br />
<br />
After about a year of internal consideration, the White House finally settled on its approach to OMB review—basically to reaffirm Executive Order 12866—with Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review] on January 18, 2011. In Section 1(b), the Order stated: “This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.”<br />
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It did contain a few new mandates and points of emphasis. Most notably, agencies were urged (as appropriate and within legal constraints) to (1) consider “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts”; (2) “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”; (3) “provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded”; (4) for proposed rules, provide “an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings”; (5) seek public input from affected persons “[b]efore issuing a notice of proposed rulemaking”; (6) “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice”; (7) “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned”; and (8) “[w]ithin 120 days of the date of this order, . . . develop and submit to [OIRA] a preliminary plan” for periodically reviewing “its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” <br />
<br />
The one action mandate in the new Executive Order was for agencies to develop plans for retrospective review of their existing regulations. On May 26, 2011, the OIRA Administrator announced the results of this effort. On July 11, 2011, President Obama issued Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], which extended the terms of Executive Order 13563 to independent regulatory agencies. On September 15, 2015, President Obama issued Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People]. Noting the value of insights from behavioral science to improve the “effectiveness and efficiency of Government.”<br />
<br />
===Developments in the Trump Administration===<br />
Shortly after taking office, President Trump issued Executive Order 13771, [https://www.govinfo.gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf Reducing Regulation and Controlling Regulatory Costs,] which requires agencies to identify at least two regulations to be repealed for every proposed or promulgated regulation. 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. The order directed the Director of OMB to provide agency heads with guidance addressing the processes for measuring regulatory costs, the costs of existing regulations, what qualifies as new and offsetting regulations, and situations that would require waivers of the order’s requirements. OIRA issued [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs”] to assist agencies in carrying out these requirements.<br />
<br />
President Trump also issued Executive Order 13777, [https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf Enforcing the Regulatory Reform Agenda]. This order requires the head of each agency to designate an official as its Regulatory Reform Officer (RRO) who would implement initiatives and policies including Executive Order 13771, Executive Order 12866, and Section 6 of Executive Order 13563 regarding retrospective review. All agencies must also form a Regulatory Reform Task Force made up of the RRO, the Regulatory Policy Officer, a representative from the central policy office, and three senior agency officials if the agency is listed in 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 901(b)(1)] (the executive departments, EPA, and NASA), which “shall evaluate existing regulations . . . and make recommendations to the agency head regarding their repeal, replacement, or modification.” In making these determinations, the task forces should focus on regulations that (1) “eliminate jobs, or inhibit job creation;” (2) “are outdated, unnecessary, or ineffective;” (3) “impose costs that exceed benefits;” (4) “create serious inconsistency or otherwise interfere with regulatory initiatives and policies;” (5) “are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001, . . . in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or” (6) “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” The Executive Order also requires agency heads to prioritize regulations that the Regulatory Reform Task Force identifies as outdated, unnecessary, or ineffective when implementing regulatory offsets under Executive Order 13771.<br />
<br />
Finally, President Trump issued Executive Order 13783, [https://www.govinfo.gov/content/pkg/FR-2017-03-31/pdf/2017-06576.pdf Promoting Energy Independence and Economic Growth,] which directs agencies to review regulations that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” This order also revoked Executive Order 13653, [https://www.govinfo.gov/content/pkg/FR-2013-11-06/pdf/2013-26785.pdf Preparing the United States for the Impact of Climate Change], and memoranda under the Obama Administration related to climate change.<br />
<br />
===Developments in the Biden Administration===<br />
Within his first two months in office, President Biden rescinded several of President Trump’s executive orders related to the rulemaking process. In addition, President Biden issued a memorandum titled Modernizing Regulatory Review. This memorandum explicitly reaffirms Executive Orders 12,866 and 13,563. Additionally, it directs the OMB Director to work with agencies to produce a set of recommendations that improves and modernizes regulatory review. The memorandum specifies that these recommendations should include concrete suggestions on how the regulatory review process can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Furthermore, the memorandum specifies that the recommendations should, among other actions, include proposed reforms to Circular A-4 to promote these goals; suggest procedures that take into account distributional impacts in regulatory analyses; propose how OIRA can partner with agencies to “explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits”; and determine an appropriate approach to the review of guidance documents.<br />
<br />
==Bibliography==<br />
===Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg33312/pdf/CHRG-110hhrg33312.pdf Amending Executive Order 12866: Good Governance or Regulatory Usurpation?], Hearing Before Subcomm. on Commercial and Admin. Law, H. Comm. of the Judiciary, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg86439/pdf/CHRG-108hhrg86439.pdf How to Improve Regulatory Accounting: Costs, Benefits and Impacts of Federal Regulations], Hearing Before Subcomm. on Energy Policy, Nat. Res. and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004) (statement of John D. Graham, Administrator of OIRA).<br />
*OIRA Insight, Reform, and Accountability Act, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt19/pdf/CRPT-115hrpt19-pt1.pdf H.R. Rep. No. 115-19] (2017).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg20632/pdf/CHRG-114hhrg20632.pdf Assessing the Obama Years: OIRA and Regulatory Impacts on Jobs, Wages and Economic Recovery], Hearing Before Subcomm. On Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2016) ([https://judiciary.house.gov/hearing/assessing-obama-years-oira-regulatory-impacts-jobs-wages-economic-recovery/ video]).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26026/pdf/CHRG-114hhrg26026.pdf Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking], Hearing Before Subcomm. on Health Care, Benefits and Admin. Rules & Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/challenges-facing-oira-ensuring-transparency-effective-rulemaking/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82203/pdf/CHRG-113hhrg82203.pdf Reducing Red Tape: The New OIRA Administrator’s Perspective], Hearing Before H. Comm. on Small Bus., 113th Cong. (2013).<br />
<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on the Costs and Benefits of Regulations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Report to Congress on the Costs and Benefits of Federal Regulations (Sept. 30, 1997). Notice of availability of draft report and request for comments, 62 Fed. Reg. 39352 (July 22, 1997).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport1998.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (January 1999). Notice of availability of draft report and request for comments, 63 Fed. Reg. 44034 (Aug. 17, 1998), extended 63 Fed. Reg. 49935 (Sept. 18, 1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2000fedreg-charts.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (June 2000). Notice of availability of draft report and request for comments, 65 Fed. Reg. 1296 (Jan. 7, 2000); extended 65 Fed. Reg. 4447 (Jan. 27, 2000) and 65 Fed. Reg. 7198 (Feb. 7, 2000).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2001). Notice of availability of draft report and request for comments, 66 Fed. Reg. 22041 (May 2, 2001); extended 66 Fed. Reg. 34963 (July 2, 2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2002). Notice of availability of draft report and request for comments, 67 Fed. Reg. 15014 (Mar. 28, 2002).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (September 2003). Notice of availability of draft report and request for comments, 68 Fed. Reg. 15772 (Apr. 1, 2003).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2004). Notice of availability of draft report and request for comments, 69 Fed. Reg. 7987 (Feb. 20, 2004).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2005). Notice of availability of draft report and request for comments, 70 Fed. Reg. 14735 (Mar. 23, 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2007). Notice of availability of draft report and request for comments, 71 Fed. Reg. 19213 (Apr. 13, 2006).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2008). Notice of availability of draft report and request for comments, 72 Fed. Reg. 11061 (Mar. 12, 2007).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2009). Notice of availability of draft report and request for comments, 73 Fed. Reg. 55169 (Sept. 24, 2008).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Jan. 27, 2010). Notice of availability of draft report and request for comments, 74 Fed. Reg. 48101 (Sept. 21, 2009).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (July 2010). Notice of availability of draft report and request for comments, 75 Fed. Reg. 22630 (Apr. 29, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2011). Notice of availability of draft report and request for comments, 76 Fed. Reg. 18260 (Apr. 1, 2011).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (April 2013). Notice of availability of draft report and request for comments, 77 Fed. Reg. 22003 (Apr. 12, 2012).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (May 2014). Notice of availability of draft report and request for comments, 78 Fed. Reg. 29780 (May. 21, 2013).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 15, 2015). Notice of availability of draft report and request for comments, 72 Fed. Reg. 37776 (July 2, 2014).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Mar. 10, 2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/12/draft_2017_cost_benefit_report.pdf 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Feb. 23, 2018).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Program of the United States Government'' (1987-1988) (and through 1990-91).<br />
*''Report on Executive Order No. 12866'', 59 Fed. Reg. 24276 (May 10, 1994).<br />
*''More Benefits Fewer Burdens—Creating a Regulatory System that Works For the American People'', A Report to the President on the Third Anniversary of Executive Order 12866 (1996).<br />
</div><br />
<br />
===ACUS Documents===<br />
====Recommendations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*88-9 [https://www.acus.gov/sites/default/files/documents/88-9.pdf Presidential Review of Agency Rulemaking]<br />
*93-4 [https://www.acus.gov/sites/default/files/documents/93-4.pdf Improving the Environment for Agency Rulemaking]<br />
*95-3 [https://www.acus.gov/sites/default/files/documents/95-3.pdf Review of Existing Agency Regulations]<br />
*2011-6 [https://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf International Regulatory Cooperation]<br />
*2012-5 [https://www.acus.gov/sites/default/files/Final-Recommendation-2012-5-Improving-Agency-Coordination.pdf Improving Coordination of Related Agency Responsibilities]<br />
*2013-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202013-2%20%28Benefit-Cost%20Analysis%29_0.pdf Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%25202014-5%2520%2528Retrospective%2520Review%2529_1.pdf Retrospective Review of Agency Rules]<br />
*2015-1 [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Recommendation%20FINAL_0.pdf Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2017-3 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-3%20%28Plain%20Language%20in%20Regulatory%20Drafting%29.pdf Plain Language in Regulatory Drafting]<br />
*2017-6 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-6%20%28Learning%20from%20Regulatory%20Experience%29_0.pdf Learning from Regulatory Experience]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
</div><br />
===CRS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Maeve P. Carey, RL32240, ''The Federal Rulemaking Process: An Overview'' (June 17, 2013).<br />
*Maeve P. Carey, R41974, ''Cost-Benefit and Other Analysis Requirements in the Rulemaking Process'' (Dec. 9, 2014).<br />
*Vivian S. Chu & Daniel T. Shedd, R42720, ''Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues'' (Sept. 10, 2012).<br />
*Vivian S. Chu & Daniel T. Shedd, RS20846, ''Executive Orders: Issuance, Modification, and Revocation'' (Apr. 6, 2014).<br />
*Curtis Copeland, RL33862, ''Changes to the OMB Regulatory Review Process by Executive Order 13422'' (Jan. 3, 2008).<br />
*Curtis Copeland, RL32397, ''Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs'' (June 9, 2009).<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/RCED84-62, [https://www.gao.gov/assets/150/141408.pdf Cost-Benefit Analysis Can Be Useful in Assessing Environmental Regulations, Despite Limitations] (1984).<br />
*T-GGD-99-93, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-99-93/pdf/GAOREPORTS-T-GGD-99-93.pdf Federalism: Implementation of Executive Order 12612 in the Rulemaking Process] (1999).<br />
*GAO/T-GGD-99-131, [https://www.gao.gov/assets/110/108000.pdf Federalism: Previous Initiatives Have Had Little Effect on Agency Rulemaking] (1999).<br />
*GAO/ GGD-99-59, [https://www.gao.gov/assets/160/156562.pdf Regulatory Accounting: Analysis of OMB’s Reports on the Costs and Benefits of Federal Regulation] (1999).<br />
*GAO/GGD-94-28, [https://www.gao.gov/assets/220/218925.pdf Regulatory Burden: Recent Studies, Industry Issues, and Agency Initiatives] (1993).<br />
*GAO/GGD-97-2, [https://www.gao.gov/assets/160/155661.pdf Regulatory Burden: Measurement Challenges and Concerns Raised by Selected Companies] (1996).<br />
*GAO/RCED-98-142, [https://www.gao.gov/assets/160/156173.pdf Regulatory Reform: Agencies Could Improve Development, Documentation, and Clarity of Regulatory Economic Analysis] (1998).<br />
*GAO/GGD-98-31, [https://www.gao.gov/assets/230/225071.pdf Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always Clearly Documented] (1998).<br />
*GAO/ PEMD-95-18BR, [https://www.gao.gov/assets/80/78970.pdf Regulatory Reform: Information on Costs, Cost-Effectiveness, and Mandated Deadlines for Regulations] (1995).<br />
*GAO-03-1015, [https://www.gao.gov/assets/240/239832.pdf Regulatory Takings: Implementation of Executive Order on Government Actions Affecting Private Property Use] (2003).<br />
*GAO-03-929, [https://www.gao.gov/assets/160/157476.pdf Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews] (2003).<br />
*GAO-05-289, [https://www.gao.gov/assets/250/247171.pdf Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules] (2005).<br />
*GAO-09-205, [https://www.gao.gov/assets/290/288538.pdf Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews] (2009).<br />
*GAO-13-588, [https://www.gao.gov/assets/660/656488.pdf International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency Guidance] (2013).<br />
*GAO-14-423T, [https://www.gao.gov/assets/670/661540.pdf Federal Rulemaking: Regulatory Review Processes Could Be Enhanced] (2014).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-14-519, [https://www.gao.gov/assets/670/664872.pdf Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses] (2014).<br />
*GAO-14-714, [https://www.gao.gov/assets/670/665745.pdf Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent] (2014).<br />
*GAO-15-368, [https://www.gao.gov/assets/670/669688.pdf Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices] (2015).<br />
*GAO-15-718, [https://www.gao.gov/assets/680/672572.pdf Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees] (2015).<br />
*GAO-16-720, [https://www.gao.gov/assets/680/679518.pdf Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance] (2016).<br />
*GAO-18-22, [https://www.gao.gov/assets/690/687875.pdf Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions] (2017).<br />
*GAO-18-183, [https://www.gao.gov/assets/700/690624.pdf Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance During and at the End of Presidents’ Terms] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Office of Legal Counsel, ''Op. on Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498''.<br />
*Office of Legal Counsel, Memorandum from Larry L. Simms, Acting Assistant Attorney General, [https://www.justice.gov/file/22586/download Proposed Executive Order Entitled “Federal Regulation,”] 5 Op. O.L.C. 59 (1981).<br />
*Council on Envtl. Quality, [https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).<br />
*Envtl. Protection Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/contsetc.pdf The Benefits and Costs of the Clean Air Act, 1970-1990]—Draft Report for Congress (April 1997).<br />
*Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, [https://ws680.nist.gov/publication/get_pdf.cfm?pub_id=200118 Tenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment] (2007).<br />
*Office of the Vice President, ''Creating a Government That Works Better and Costs Less, Improving Regulatory Systems'', National Performance Review (1993).<br />
*Statement #18, [https://www.acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf Improving the Timeliness of OIRA Regulatory Review], 78 Fed. Reg. 76275 (Dec. 17, 2013).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''OIRA Thirtieth Anniversary Conference'', 63 Admin. L. Rev. (special ed.) (2011).<br />
*ABA Section of Admin. Law & Regulatory Practice, [https://www.americanbar.org/content/dam/aba/administrative/administrative_law/Final%20POTUS%20Report%2010-26-16.authcheckdam.pdf Report: Improving the Administrative Process: A Report to the President-Elect of the United] (2016), 69 Admin. L. Rev. 205 (2017).<br />
*Rebecca Adams, ''Regulating the Rule-Makers: John Graham at OIRA'', CQ Weekly 520 (Feb. 23, 2002).<br />
*Joseph E. Aldy, [https://www.acus.gov/sites/default/files/documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy] (Nov. 17, 2014) (report to ACUS).<br />
*Robert A. Anthony, ''Executive Order, OMB Bulletin Focus on Guidances'', 32 Admin. L. & Reg. News 10, Spring 2007.<br />
*William D. Araiza, ''Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking'', 54 Admin. L. Rev. 611 (2002).<br />
*Donald R. Arbuckle, ''Obscure But Powerful: Who Are Those Guys?'', 63 Admin. L. Rev. 131 (special ed.) (2011).<br />
*Nicholas Bagley & Richard L. Revesz, ''Centralized Oversight of the Regulatory State'', 106 Colum. L. Rev. 1260 (2006).<br />
*Stephen J. Balla, Jennifer M. Deets, & Forrest Maltzman, ''Outside Communications and OIRA Review of Agency Regulations'', 63 Admin. L. Rev. 149 (special ed.) (2011).<br />
*Rachel Bayefsky, Note, [https://www.yalelawjournal.org/pdf/1732.Bayefsky.1782_u52fptmb.pdf Dignity as a Value in Agency Cost-Benefit Analysis], 123 Yale L.J. 1732 (2014).<br />
*Josh Blackman, [https://illinoislawreview.org/wp-content/uploads/2018/03/Blackman.pdf Presidential Maladministration], 2018 U. Ill. L. Rev. 397 (2018).<br />
*James F. Blumstein, ''Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues'', 51 Duke L. J. 851 (2001).<br />
*Alexander Bolton, Rachel Augustine Potter, & Sharece Thrower, ''Organizational Capacity, Regulatory Review, and the Limits of Political Control'', 32 J. L. Econ. & Org. 242 (2016).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1490&context=mlr Inside the Administrative State: A Critical Look at the Practice of Presidential Control], 105 Mich. L. Rev. 47 (2006).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1445&context=mlr Legitimacy, Selectivity, and the Disunitary Executive: A Reply to Sally Katzen], 105 Mich. L. Rev. 1511 (2007).<br />
*Harold H. Bruff, ''Presidential Management of Agency Rulemaking'', 57 Geo. Wash. L. Rev. 533 (1989).<br />
*Reeve T. Bull, ''Building a Framework for Governance: Retrospective Review and Rulemaking Petitions'', 67 Admin. L. Rev. 265 (2015).<br />
*Ming H. Chen, ''Administrator-in-Chief: The President and Executive Action in Immigration Law'', 69 Admin. L. Rev. 347 (2017).<br />
*John C. Coates IV, [https://www.yalelawjournal.org/pdf/a.882.Coates.1011_owe353wf.pdf Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications], 124 Yale L.J. 882 (2015).<br />
*Cary Coglianese, [http://yalejreg.com/moving-forward-with-regulatory-lookback/ Moving Forward with Regulatory Lookback], 30 Yale J. on Reg. Online 57 (2013).<br />
*Cary Coglianese, ''The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State'', 69 Admin. L. Rev. 43 (2017).<br />
*Cary Coglianese, [http://www.aulawreview.org/au_law_review/wp-content/uploads/2018/02/02-Coglianese_67AMULREV733.pdf Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel Cole, [https://www.law.ua.edu/pubs/lrarticles/Volume%2064/Issue%201/2%20Cole%2055%20-%2089.pdf Law, Politics, and Cost-Benefit Analysis], 64 Ala. L. Rev. 55 (2012).<br />
*John Conyers, Jr., Henry C. Johnson, Jr., & David N. Cicilline, [http://harvardjol.com/wp-content/uploads/2017/05/HLL201-1.pdf The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration], 54 Harv. J. on Legis. 365 (2017).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Final%20BCA%20Report%204-30-13.pdf Economic Analysis and Independent Regulatory Agencies] (Apr. 30, 2013) (report to ACUS).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Report%20CIRCULATED%20to%20Committees%20on%2010-21-13.pdf Length of Rule Reviews by the Office of Information and Regulatory Affairs] (Oct. 7, 2013) (report to ACUS).<br />
*Curtis Copeland, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2208&context=ulj The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking], 33 Fordham Urb. L.J. 1257 (2006).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Draft%20Report%20041315%20FINAL_0.pdf The Unified Agenda: Proposals for Reform] (Apr. 13, 2015) (report to ACUS).<br />
*Robin Kundis Craig, ''The Bush Administration’s Use and Abuse of Rulemaking. Part I: The Rise of OIRA'', 28 Admin. & Reg. L. News 8 (Summer 2003).<br />
*Stephen Croley, ''White House Review of Agency Rulemaking: An Empirical Investigation'', 70 U. Chi. L. Rev. 821 (2003).<br />
*Nestor M. Davidson &. Ethan J. Lieb, [https://georgetownlawjournal.org/articles/64/regleprudence/pdf Regleprudence—At OIRA and Beyond], 103 Geo. L.J. 259 (2015).<br />
*Christopher C. DeMuth & Douglas H. Ginsburg, ''White House Review of Agency Rulemaking'', 99 Harv. L. Rev. 1075 (1986).<br />
*Christopher DeMuth, ''OIRA at Thirty'', 63 Admin. L. Rev. 15 (special ed.) (2011).<br />
*Caroline DeWitt, Comment, ''The Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review'', 6 Admin. L. J. Am. U. 759 (1993).<br />
*Susan E. Dudley, ''Observations on OIRA’s Thirtieth Anniversary'', 63 Admin. L. Rev. 113 (special ed.) (2011).<br />
*Susan E. Dudley, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1006&context=caselrev Improving Regulatory Accountability: Lessons From the Past and Prospects for the Future], 65 Case W. Res. L. Rev. 1027 (2015).<br />
*E. Donald Elliott, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4231&context=lcp TQM’ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It], 57 Law & Contemp. Probs. 167 (1994).<br />
*Blake Emerson & Cheryl Blake, [https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20Drafting_Final%20Report.pdf Plain Language in Regulatory Drafting] (Dec. 8, 2017) (report to ACUS).<br />
*Jaclyn L. Falk, Comment, [https://cpb-us-w2.wpmucdn.com/usfblogs.usfca.edu/dist/7/272/files/2014/09/The-Behind-Closed-Door-Policy-Executive-Influence-in-the-Environmental-Protection-Agencys-Informal-Rulemaking.pdf The Behind Closed Door Policy: Executive Influence in the Environmental Protection Agency’s Informal Rulemaking], 47 U.S.F. L. Rev. 593 (2013).<br />
*Cynthia R. Farina, ''Undoing the New Deal Through the New Presidentialism'', 22 Harv. J. L. & Pub. Pol’y 227 (1998).<br />
*Scott Farrow, ''Improving Regulatory Performance: Does Executive Office Oversight Matter?'' (2001).<br />
*Arthur Fraas, ''Observations on OIRA’s Policies and Procedures'', 63 Admin. L. Rev. (special ed.) 79 (2011).<br />
*Arthur Fraas & Randall Lutter, ''On the Economic Analysis of Regulations at Independent Regulatory Commissions'', 63 Admin. L. Rev. 213 (special ed.) (2011).<br />
*Jody Freeman & Jim Rossi, [https://www.acus.gov/sites/default/files/documents/Freeman-Rossi-ACUS-Report-5-30-12-PDF.pdf Improving Coordination of Related Agency Responsibilities] (May 30, 2012) (report to ACUS).<br />
*William Funk “Agency Oversight by the Political Branches,” ch. 11 in Section on Administrative Law and Regulatory Practice, ''A Guide to Judicial and Political Review of Federal Agencies'' 259-304 (2d ed. Michael E. Herz, Richard Murphy & Kathryn Watts eds., 2015).<br />
*Margaret Gilhooley, [https://journals.iupui.edu/index.php/inlawrev/article/view/2956/2879 Executive Oversight of Administrative Rulemaking: Disclosing the Impact], 25 Ind. L. Rev. 299 (1991).<br />
*John D. Graham & Cory R. Liu, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_425_Graham_Liu-1.pdf Regulatory and Quasi-Regulatory Activity Without OMB and Cost-Benefit Review], 37 Harv. J.L. & Pub. Pol’y 425 (2014).<br />
*John D. Graham, Paul R. Noe & Elizabeth L. Branch, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2198&context=ulj Managing the Regulatory State: The Experience of the Bush Administration], 33 Fordham Urb. L. J. 953 (2006).<br />
*Wendy L. Gramm, ''Regulatory Review Issues, October 1985–February 1988'', 63 Admin. L. Rev. 27 (special ed.) (2011).<br />
*Abner S. Greene, ''Checks and Balances in an Era of Presidential Lawmaking'', 61 U. Chi. L. Rev. 123 (1994).<br />
*Robert W. Greene, [https://rutgerspolicyjournal.org/sites/jlpp/files/Greene.pdf Improving U.S. Financial Regulation Through OIRA Review & Robust Regulatory Analysis Standards], 14 Rutgers J.L. & Pub. Pol’y 89 (2016).<br />
*Sarah Grimmer, Note, ''Public Controversy Over Peer Review'', 57 Admin. L. Rev. 275 (2005).<br />
*Zachary J. Gubler, [https://www.acus.gov/sites/default/files/documents/ZGubler%20ACUS%20Final%20Report%2811-17%29.pdf Regulatory Experimentation] (Nov. 17, 2017) (report to ACUS).<br />
*Hiba Hafiz, [http://wisconsinlawreview.org/wp-content/uploads/2018/01/Hafiz-Final.pdf Economic Analysis of Labor Regulation], 2017 Wis. L. Rev. 1115 (2017).<br />
*Robert W. Hahn, Risks, ''Costs, and Lives Saved: Getting Better Results From Regulation'', (Oxford Univ. Press & AEI Press, 1996).<br />
*Robert W. Hahn & John A. Hird, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1177&context=yjreg The Costs and Benefits of Regulation: Review and Synthesis], 8 Yale J. on Reg. 233 (1991).<br />
*Lisa Heinzerling, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2202&context=ulj Statutory Interpretation in the Era of OIRA], 33 Fordham Urb. L. J. 1097 (2006).<br />
*Lisa Heinzerling, [https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1741&context=pelr Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House], 31 Pace Envtl. L. Rev. 325 (2014).<br />
*Thomas D. Hopkins, ''The Evolution of OIRA Oversight—CWPS to OIRA'', 63 Admin. L. Rev. 71 (special ed.) (2011).<br />
*Elena Kagan, ''Presidential Administration'', 114 Harv. L. Rev. 2245 (2001).<br />
*Sally Katzen, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1444&context=mlr A Reality Check on an Empirical Study: Comments on “Inside the Administrative State,”] 105 Mich. L. Rev. 1497 (2007).<br />
*Sally Katzen, ''OIRA at Thirty: Reflections and Recommendations'', 63 Admin. L. Rev. 103 (special ed.) (2011).<br />
*Cornelius M. Kerwin & Scott R. Furlong, ''Rulemaking: How Government Agencies Write Law and Make Policy'' (CQ Press, 4th ed. 2011).<br />
*Peter Ketcham-Colwill, [https://www.gwlr.org/wp-content/uploads/2018/02/82-Geo.-Wash.-L.-Rev.-1622.pdf Presidential Influence Over Agency Rulemaking Through Regulatory Review], 82 Geo. Wash. L. Rev. 1622 (2014).<br />
*Robert E. Litan & William D. Nordhaus, ''Reforming Federal Regulation'' (Yale Univ. Press, 1983).<br />
*Michael A. Livermore, [http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/Livermore_Art.pdf Cost-Benefit Analysis and Agency Independence], 81 U. Chi. L. Rev. 609 (2014).<br />
*Michael A. Livermore & Richard L. Revesz, [https://georgetownlawjournal.org/articles/119/regulatory-review-capture-agency/pdf Regulatory Review, Capture, and Agency Inaction], 101 Geo. L.J. 1337 (2013)<br />
*Jeffrey S. Lubbers, ''A Guide to Federal Agency Rulemaking'' (ABA Section of Admin. Law & Regulatory Practice, 5th ed. 2012).<br />
*Jeffrey S. Lubbers, ''OMB to Require Peer Review for Regulatory Science Documents'', 29 Admin. L. & Reg. News 3, Fall 2003.<br />
*Maureen Mahon, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1179&context=law_lawreview Proceed With Caution: The Implications of the OMB Peer Review Guidelines on Precautionary Legislation], 84 Wash. U. L. Rev. 461 (2006).<br />
*Jonathan S. Masur & Eric A. Posner, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4712&context=clr Unquantified Benefits and the Problem of Regulation Under Uncertainty], 102 Cornell L. Rev. 87 (2016).<br />
*Randolph J. May, ''OMB’s Peer Review Proposal—Swamped by Science?'', 29 Admin. & Reg. L. News 4, Spring 2004.<br />
*Michael McCarthy, [https://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91-1] (Oct. 19, 2011) (report to ACUS).<br />
*Thomas O. McGarity, ''Presidential Control of Regulatory Agency Decisionmaking'', 36 Am. U. L. Rev. 443 (1987).<br />
*Thomas O. McGarity, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1538&context=dlj Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age], 61 Duke L.J. 1671 (2012).<br />
*Patrick A. McLaughlin & Jerry Ellig, ''Does OIRA Review Improve the Quality of Regulatory Impact Analysis? Evidence from the Final Year of the Bush II Administration'', 63 Admin. L. Rev. 179 (special ed.) (2011).<br />
*Emily Hammond Meazell, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1539&context=dlj Presidential Control, Expertise, and the Deference Dilemma], 61 Duke L.J. 1763 (2012).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1208&context=articles Disclosing “Political” Oversight of Agency Decision Making], 108 Mich. L. Rev. 1127 (2010).<br />
*Nina Mendelson, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Mendelson_May.pdf Another Word on the President’s Statutory Authority over Agency Action], 79 Fordham L. Rev. 2455 (2011).<br />
*Nina A. Mendelson & Jonathan B. Wiener, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_447_Mendelson_Wiener.pdf Responding to Agency Avoidance of OIRA], 37 Harv. J.L. & Pub. Pol’y 447 (2014).<br />
*Gillian E. Metzger & Kevin M. Stack, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mlr Internal Administrative Law], 115 Mich. L. Rev. 1239 (2017).<br />
*James C. Miller III, ''The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future'', 63 Admin. L. Rev. 93 (special ed.) (2011).<br />
*Alan B. Morrison, ''OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation'', 99 Harv. L. Rev. 1059 (1986).<br />
*William A. Niskanen, ''Clinton Regulation Will Be “Rational”: Interview with Sally Katzen, the New OIRA Administrator'', Regulation Magazine No. 3, at 36 (1993).<br />
*Lars Noah, ''Peer Review and Regulatory Reform'', 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,606 (2000).<br />
*Paul Noe, ''Analyzing the Destruction of Human Capital by Regulations'', 63 Admin. L. Rev. 203 (special ed.) (2011).<br />
*Note, ''Regulatory Analyses and Judicial Review of Informal Rulemaking'', 91 Yale L. J. 739 (1982).<br />
*Note, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol124_%20OIRA%20_avoidance.pdf OIRA Avoidance], 124 Harv. L. Rev. 994 (2011).<br />
*Note, ''The Inflation Impact Statement Program: An Assessment of the First Two Years'', 26 Am. U. L. Rev. 1138 (1977).<br />
*Jennifer Nou, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_nou.pdf Agency Self-Insulation Under Presidential Review], 126 Harv. L. Rev. 1755 (2013).<br />
*Jennifer Nou & Edward H. Stiglitz, [https://southerncalifornialawreview.com/wp-content/uploads/2018/01/89_733.pdf Strategic Rulemaking Disclosure], 89 S. Cal. L. Rev. 733 (2016).<br />
*Anne Joseph O’Connell, [http://www.virginialawreview.org/sites/virginialawreview.org/files/889.pdf Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State], 94 Va. L. Rev. 889 (2008).<br />
*Erik D. Olson, ''The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291'', 4 Va. J. Nat. Resources L. 1 (1984).<br />
*Eloise Pasachoff, [https://www.yalelawjournal.org/pdf/a.2182.Pasachoff.2290_aqo1aub4.pdf The President’s Budget as a Source of Agency Policy Control], 125 Yale L.J. 2182 (2016).<br />
*Robert V. Percival, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1148&context=dlj Presidential Management of the Administrative State: The Not-So-Unitary Executive], 51 Duke L. J. 963 (2001).<br />
*Robert V. Percival, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Percival_May.pdf Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?], 79 Fordham L. Rev. 2487 (2011).<br />
*Richard J. Pierce, Jr., [http://www.nyujlpp.org/wp-content/uploads/2016/06/Pierce-Regulatory-Budget-Debate-19nyujlpp249.pdf The Regulatory Budget Debate], 19 N.Y.U. J. Legis. & Pub. Pol’y 249 (2016).<br />
*Eric A. Posner & E. Glen Weyl, [https://www.yalelawjournal.org/pdf/Posner-WeylPDF_ijby4z9e.pdf Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms], 124 Yale L.J. Forum 246 (2015).<br />
*Robert L. Rabin, ''Federal Regulation in Historical Perspective'', 38 Stan L. Rev. 1189 (1986).<br />
*Richard L. Revesz, [http://yalejreg.com/articlepdfs/34-JREG-545.pdf Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation], 34 Yale J. On Reg. 545 (2017).<br />
*Richard L. Revesz, [http://www.californialawreview.org/wp-content/uploads/2014/12/02-Revesz.pdf Quantifying Regulatory Benefits], 102 Cal. L. Rev. 1423 (2014).<br />
*Richard L. Revesz & Michael A. Livermore, ''Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health'' (Oxford Univ. Press 2008).<br />
*Delissa Ridgway et al., ''The Council on Competitiveness and Regulatory Review: A “Kinder, Gentler” Approach to Regulation?'', 6 Admin. L. J. Am. U. 691 (1993).<br />
*David B. Rivkin, ''The Unitary Executive and Presidential Control of Executive Branch Rulemaking'', 7 Admin. L. J. Am. U. 309 (1993).<br />
*Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291'', 80 Mich. L. Rev. 193 (1981).<br />
*Arden Rowell, [https://www.law.uci.edu/lawreview/vol4/no4/Rowell.pdf Time in Cost-Benefit Analysis], 4 UC Irvine L. Rev. 1215 (2014).<br />
*Susan Rose-Ackerman, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1153&context=umlr Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review], 65 U. Miami L. Rev. 335 (2011).<br />
*Andrew Rudalevige, [http://lawreview.syr.edu/wp-content/uploads/2015/09/G-Rudalevige-For-Website.pdf Old Laws, New Meanings: Obama’s Brand of Presidential “Imperialism”], 66 Syracuse L. Rev. 1 (2016).<br />
*J.B. Ruhl & James Salzman, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1170&context=law_lawreview In Defense of Regulatory Peer Review], 84 Wash. U. L. Rev. 1 (2006).<br />
*Thomas O. Sargentich, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/The-Emphasis-on-the-Presidency-in-U.S.-Public-Law-An-Essay-Critiquing-Presidential-Administration.pdf The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration], 59 Admin. L. Rev. 1 (2007).<br />
*Peter M. Shane, ''Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking'', 48 Ark. L. Rev. 161 (1995).<br />
*David R. Sheaffer, [https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1178&context=lr The Price of Regulation: Rethinking Executive Review of Agency Rulemaking], 2016 Mich. St. L. Rev. 1091 (2016).<br />
*Sidney Shapiro, [https://www.acus.gov/sites/default/files/documents/gov.acus_.1995.rec_.95-3.pdf Agency Review of Existing Regulations] (Jan. 15, 1995) (report to ACUS).<br />
*Sidney A. Shapiro, ''OMB’s Dubious Peer Review Procedures'', 34 Envtl. L. Rep. (Envtl. L. Inst.) 10,064 (2004).<br />
*Sidney A. Shapiro, ''OMB’s Revised Peer Review Bulletin'', 29 Admin. L. & Reg. News 10 (Summer 2004).<br />
*Sidney A. Shapiro & Richard Murphy, [https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Shapiro-Murphy.pdf Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation], 48 U.C. Davis L. Rev. 1457 (2015).<br />
*Sidney A. Shapiro & Ronald F. Wright, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1160&context=umlr The Future of the Administrative Presidency: Turning Administrative Law Inside-Out], 65 U. Miami L. Rev. 577 (2011).<br />
*Stuart Shapiro, ''OIRA Inside and Out'', 63 Admin. L. Rev. 135 (special ed.) (2011).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Stuart Shapiro & Debra Borie-Holtz, ''The Politics of Regulatory Reform'' (Routledge 2013).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS).<br />
*Peter L. Strauss, ''Overseer or “The Decider”? The President in Administrative Law'', 75 Geo. Wash. L. Rev. 696 (2007).<br />
*Peter L. Strauss, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=caselrev The President and the Constitution], 65 Case W. Res. L. Rev. 1151 (2015).<br />
*Peter L. Strauss & Cass R. Sunstein, ''The Role of the President and OMB in Informal Rulemaking'', 38 Admin. L. Rev. 181 (1986).<br />
*Cass R. Sunstein, Simpler: ''The Future of Government'' (Simon & Schuster, 2013).<br />
*Cass R. Sunstein, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_sunstein.pdf The Office of Information and Regulatory Affairs: Myths and Realities], 126 Harv. L. Rev. 1838 (2013).<br />
*Cass R. Sunstein, [http://www.bu.edu/bulawreview/files/2014/08/SUNSTEINDYSFUNCTION.pdf The Regulatory Lookback], 94 B.U. L. Rev. 579 (2014).<br />
*Jim Tozzi, ''OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding'', 63 Admin. L. Rev. 37 (special ed.) (2011).<br />
*Paul R. Verkuil, ''Jawboning Administrative Agencies: Ex Parte Contacts by the White House'', 80 Colum. L. Rev. 943 (1980).<br />
*Christopher J. Walker, ''Modernizing the Administrative Procedure Act'', 69 Admin. L. Rev. 629 (2017).<br />
*Adam L. Warber, ''Executive Orders and the Modern Presidency: Legislating from the Oval Office'' (Lynne Reiner Publishers 2006).<br />
*Kathryn A. Watts, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1240&context=mlr Controlling Presidential Control], 114 Mich. L. Rev. 683 (2016).<br />
*Christopher E. Wilson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Not-Good-Enough-for-Government-Work-How-OMBs-Good-Guidance-Practices-May-Unintentionally-Complicate-Administrative-Law.pdf Comment: Not Good Enough for Government Work: How OMB’s Good Guidance Practices May Unintentionally Complicate Administrative Law], 59 Admin. L. Rev. 177 (2007).<br />
</div><br />
<br />
===Miscellaneous===<br />
<br />
*National Academy of Public Administration, ''Presidential Management of Rulemaking in Regulatory Agencies'' (1987).<br />
*[http://www.thecre.com/ombpapers/featuredarticles.html Center for Regulatory Effectiveness].<br />
*Competitive Enterprise Institute, [https://cei.org/10KC Ten Thousand Commands].</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Rulemaking_Requirements_from_the_Executive_Office_of_the_President&diff=1687Rulemaking Requirements from the Executive Office of the President2023-08-15T21:30:56Z<p>MGluth: </p>
<hr />
<div>This section discusses the most significant presidential Executive Orders, Bulletins, and Memoranda, which pertain to the rulemaking process or federal regulation. Other executive orders and memoranda may be found in other sections, e.g., those relating to the [[Federal Advisory Committee Act]].<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)], [https://www.whitehouse.gov/omb/ Office of Management and Budget (OMB)]<br />
<br />
==Executive Orders==<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Executive Order 12372, [https://www.archives.gov/federal-register/codification/executive-order/12372.html Intergovernmental Review of Federal Programs], 47 Fed. Reg. 30959 (July 16, 1982).<br />
*Executive Order 12630, [https://www.archives.gov/federal-register/codification/executive-order/12630.html Governmental Actions and Interference with Constitutionally Protected Property Rights], 53 Fed. Reg. 8859 (Mar. 18, 1988).<br />
*Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 ( Oct. 4, 1993).<br />
*Executive Order 12889, [https://www.govinfo.gov/content/pkg/WCPD-1994-01-03/pdf/WCPD-1994-01-03-Pg2639.pdf Implementation of the North American Free Trade Agreement], 58 Fed. Reg. 69681 (Dec. 30, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations], 59 Fed. Reg. 7629 (Feb. 16, 1994).<br />
*Executive Order 12988, [https://www.govinfo.gov/content/pkg/WCPD-1996-02-12/pdf/WCPD-1996-02-12-Pg189.pdf Civil Justice Reform], 61 Fed. Reg. 4729 (Feb. 7, 1996).<br />
*Executive Order 13045, [https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Protection of Children from Environmental Health Risks and Safety Risks], 62 Fed. Reg. 19885 (Apr. 23, 1997).<br />
*Executive Order 13132, [https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Federalism], 64 Fed. Reg. 43255 (Aug. 10, 1999).<br />
*Executive Order 13175, [https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
*Executive Order 13211, [https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use], 66 Fed. Reg. 28355 (May 22, 2001).<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 16, 2002).<br />
*Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review], 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming Executive Order 12866).<br />
*Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], 76 Fed. Reg. 41587 (July 14, 2011).<br />
*Executive Order 13609, [https://www.govinfo.gov/content/pkg/FR-2012-05-04/pdf/2012-10968.pdf Promoting International Regulatory Cooperation], 77 Fed. Reg. 26413 (May 4, 2012).<br />
*Executive Order 13610, [https://www.govinfo.gov/content/pkg/FR-2012-05-14/pdf/2012-11798.pdf Identifying and Reducing Regulatory Burdens], 77 Fed. Reg. 28469 (May 14, 2012).<br />
*Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People], 80 Fed. Reg. 56356 (Sept. 18, 2015).<br />
*Executive Order 13725, [https://www.govinfo.gov/content/pkg/FR-2016-04-20/pdf/2016-09346.pdf Steps to Increase Competition and Better Inform Consumers and Works to Support Continued Growth of the American Economy], 81 Fed. Reg. 23417 (Apr. 20, 2016).<br />
*Executive Order 14094, [https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf Modernizing Regulatory Review], 88 Fed. Reg. 21,879 (Apr. 11, 2023).<br />
</div><br />
<br />
==Table of Executive Order Requirements==<br />
{| class="wikitable"<br />
|+<br />
!Executive Order (EO)<br />
!Date and Administration of Issue<br />
!Action Items<br />
!Does the EO Contain a Statement Regarding Applicability to Independent Agencies?<br />
|-<br />
|[https://www.archives.gov/federal-register/codification/executive-order/12630.html EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights]<br />
|1988 - Reagan<br />
|''General Principles''. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” <br />
<br />
<br />
''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.”<br />
<br />
''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.<br />
<br />
<br />
''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).<br />
<br />
<br />
''Ensuring Compliance.'' OMB and the Department of Justice are responsible for ensuring compliance with the EO.<br />
|No<br />
|-<br />
|[https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf EO 12866 - Regulatory Planning and Review]<br />
|1993 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12889.pdf EO 12889 - Implementation of the North American Free Trade Agreement]<br />
|1993 - Clinton<br />
|''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.”<br />
<br />
<br />
''Exceptions''<br />
<br />
#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)).<br />
#Perishable Goods. Technical regulations relating to perishable goods.<br />
#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.<br />
#Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection.<br />
<br />
''Definitions''<br />
<br />
#Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7).<br />
#Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7).<br />
|No<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf EO 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations]<br />
|1994 - Clinton<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1996-02-07/pdf/96-2755.pdf EO 12988 - Civil Justice Reform]<br />
|1996- Clinton<br />
|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.<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks]<br />
|1997 - Clinton<br />
|''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.”<br />
''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:<br />
<br />
#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.”<br />
#Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/pdf/99-20729.pdf EO 13132 - Federalism]<br />
|1999 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf EO 13175 - Consultation and Coordination with Indian Tribal Governments]<br />
|2000 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2001-05-22/pdf/01-13116.pdf EO 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use]<br />
|2001 - Bush<br />
|''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.<br />
<br />
<br />
''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. <br />
<br />
<br />
''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. <br />
<br />
<br />
''Publication.'' Agencies must publish the Statement or a summary in the related NPRM and final rule.<br />
|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 . . . ."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2002-08-16/pdf/02-21056.pdf EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking]<br />
|2002 - Bush<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf EO 13563 - Improving Regulation and Regulatory Review]<br />
|2011 - Obama<br />
|''General Principles.'' This EO supplements and reaffirms [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 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.<br />
<br />
<br />
''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.”<br />
<br />
<br />
''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.”<br />
<br />
<br />
''Flexible Approaches.'' Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.”<br />
<br />
<br />
''Objectivity with regard to scientific information.'' Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking.<br />
<br />
<br />
''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.”<br />
|Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review <nowiki>[EO] 12866</nowiki>]."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf EO 13579 - Regulation and Independent Regulatory Agencies]<br />
|2011 - Obama<br />
|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 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.”<br />
|Yes. The EO is entirely geared toward independent agencies.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-04/pdf/2012-10968.pdf EO 13609 - Promoting International Regulatory Cooperation]<br />
|2012 - Obama<br />
|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.<br />
|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.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf EO 13610 - Identifying and Reducing Regulatory Burdens]<br />
|2012 - Obama<br />
|Agencies are instructed to institutionalize regular reviews of their previously 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.<br />
|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)."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2016-04-20/pdf/2016-09346.pdf EO 13725 - Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy]<br />
|2016 - Obama<br />
|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. <br />
|Yes. See § 3(b) for relevant text: "Independent agencies are strongly encouraged to comply with the requirements of this order."<br />
|-<br />
|[https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ EO 14094 - Modernizing Regulatory Review]<br />
|2023 - Biden<br />
|Agencies should affirmatively promote public participation in rulemaking and proactively engage interested parties. Regulatory analysis should recognize distributive impacts and equity.<br />
|No.<br />
|}<br />
<br />
==Other White House Bulletins and Memoranda==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-119-1.pdf Federal Participation in the Development and Use of Voluntary Standards and in Conformity Assessment Activities] (1998).<br />
*[https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf Plain Language in Government Writing] (1998).<br />
*[https://obamawhitehouse.archives.gov/omb/inforeg_oira_review_process/ Presidential Review of Agency Rulemaking by OIRA] (2001).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf Circular No. A-4, New Guidelines for the Conduct of Regulatory Analysis] (2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/DraftCircularA-4.pdf Circular A-4, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/CircularA94.pdf Circular A-94, Draft Revisions] (Apr. 6, 2023).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2023/04/ModernizingEOImplementation.pdf Implementation of Modernizing Regulatory Review Executive Order] (Apr. 6, 2023).<br />
*M-05-03, [https://obamawhitehouse.archives.gov/omb/memoranda_fy2005_m05-03 Final Information Quality Bulletin for Peer Review] (2004).<br />
*[https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf Final Bulletin for Agency Good Guidance Practices] (2007).<br />
*M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/regulatory_matters_pdf/m07-24.pdf Updated Principles for Risk Analysis](2007).<br />
*M-19-14, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf Guidance on Compliance with the Congressional Review Act] (2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01866.pdf Modernizing Regulatory Review] (2021)<br />
</div><br />
<br />
==Overview==<br />
===History of Presidential Oversight of Rulemaking and Regulation===<br />
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. <br />
<br />
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.<br />
<br />
In 1974, President Ford issued an executive order requiring executive branch agencies to prepare an “inflation impact statement” for each “major” federal action. 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” rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to COWPS upon publication of the NPRM. COWPS would review the IIS and, in its discretion, offer informal criticism of the proposal or participate in the public proceedings on the rule. <br />
<br />
President Carter continued presidential review of agency rules by means of Executive Order 12044, ''Improving Government Regulations'', issued in 1978. Under the order, executive agencies were required to: (1) publish semi-annual agendas, describing and giving the legal bases for, any “significant” regulations under development by the agency; (2) establish procedures to identify “significant” rules, to evaluate their need, and to have the agency head assure that the “least burdensome of the acceptable alternatives” was proposed; and (3) prepare a “regulatory analysis” that examined the cost-effectiveness of alternative regulatory approaches for “major rules.”<br />
<br />
President Carter also established a Regulatory Analysis Review Group to review the regulatory analyses prepared for a limited number of proposed “major” rules and to submit comments on the proposed rules during the public comment period. He created another rulemaking review body, the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. These efforts to coordinate agency rulemaking were challenged unsuccessfully in several lawsuits.<br />
<br />
President Reagan acted quickly after taking office to increase control over executive branch rulemaking. On February 17, 1981, the President issued an executive order on federal regulations designed “to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” The new Executive Order 12291, [https://www.archives.gov/federal-register/codification/executive-order/12291.html Federal Regulation], replaced Executive Order 12044, which President Reagan said had “proven ineffective.” <br />
<br />
Executive Order 12291 contained both substantive requirements and procedural steps to be followed in the development and promulgation of new rules. The [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)] in OMB was given responsibility for implementing Executive Order 12291. OMB’s rulemaking review function is supplemented by the powers it was given in the [[Paperwork Reduction Act]] of 1980, by which Congress statutorily established OIRA to, among other things, review and approve or disapprove agency “information collection requests.”<br />
<br />
The Office of Legal Counsel in the U.S. Department of Justice issued an [https://www.justice.gov/file/22586/download opinion] supporting the validity of Executive Order 12291. The opinion stated that the President’s authority to issue the order was based on his constitutional power to “take care that the laws be faithfully executed.” While concluding that any inquiry into Congressional intent in enacting specific rulemaking statutes “will usually support the legality of presidential supervision of rulemaking by Executive Branch agencies,” the opinion stated that presidential supervision of agency rulemaking “is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official.”<br />
<br />
Despite criticism of this new form of presidential review, President Reagan began his second term by expanding the program through Executive Order 12498, [https://www.archives.gov/federal-register/codification/executive-order/12498.html Regulatory Planning Process], which established a “regulatory planning process” with the purpose of helping to “ensure that each major step in the process of rule development is consistent with Administration policy.” <br />
<br />
According to OMB, the problem with regulatory review under Executive Order 12291 was that such review “often came late in the regulatory process, after huge investments of agency time and resources, and often after agency staff commitments to constituents had made it extremely difficult to consider any legally acceptable, but previously ignored, regulatory alternative.” This resulted, OMB said, in the “bureaucracy often present[ing] agency heads with faits accompli.” <br />
<br />
Executive Order 12498’s regulatory planning process was designed to avoid this problem. Under this procedure, the head of each agency was required to determine at the beginning of the regulatory process whether a proposed regulatory venture was “consistent with the goals of the Administration.” At the beginning of the year, Agency heads were to develop a plan for managing the agency’s most significant regulatory actions. OMB then reviewed the plan for consistency with the administration’s program and published the coordinated agency plans in a government-wide document. This document, entitled “Regulatory Program of the United States Government,” governed more than 20 major rulemaking agencies and was published each year during the second Reagan term and the Bush administration to inform Congress and the public of the government’s regulatory plans.<br />
<br />
President Reagan, in 1987 and 1988, issued three additional executive orders, dealing with federalism, interference with property rights (which is still in effect), and the family. OMB was given a role in ensuring coordination of regulatory policy in these areas. President Bush basically continued the program of presidential review of agency rulemaking established by President Reagan, although due to congressional opposition to OIRA actions, President Bush’s nominee to head OIRA was not confirmed. To counter this weakening of OIRA’s authority, President Bush created the Council on Competitiveness, headed by Vice President Quayle, and gave it authority to intervene in major agency rulemakings. Several of the Council’s interventions provoked intense criticisms leading up to the 1992 elections.<br />
<br />
===The Clinton Executive Order—Executive Order 12866===<br />
With the election of President Clinton, one of his first actions was an attempt to reestablish some bipartisan consensus on rulemaking review. His nominee as OIRA Administrator was the first subcabinet nominee to be appointed. Following the example of the Reagan Administration, President Clinton then set out to redraft the extant Executive Order and produced Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], on September 30, 1993. This Executive Order, which remains operative, carries over many of the principles of Executive Order 12291 and Executive Order 12498 and made some significant modifications that simplified the process, made it more selective, and introduced more transparency into the OMB/agency consultations. In drafting this Executive Order, the Clinton Administration followed many of the suggestions in ACUS [https://www.acus.gov/sites/default/files/documents/88-9.pdf Recommendation 88-9]. <br />
<br />
The Executive Order begins with a lengthy “Statement of Regulatory Philosophy and Principles,” which are quite similar to those in Executive Order 12291 except that it specifies that measurement of costs and benefits should include both quantifiable and qualitative measures. As with previous Orders, Executive Order 12866 retains the traditional (since 1978) level of $100 million annual effect on the economy for those major rules (now referred to as “economically significant” rules) that must be accompanied by cost-benefit assessments when forwarded to OIRA as proposed and final rules.<br />
<br />
Executive Order 12866 also retains the OIRA review process for other rules, although it only requires that “significant regulatory actions” be subject to review. This includes those $100 million rules plus others that have material adverse effects on “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” It also includes rules that may materially alter the budgetary impact of benefit programs or the rights of recipients, that raise “novel legal or policy issues,” or are inconsistent or interfere with actions taken by another agency. The process established for identifying such “significant regulatory actions” relies on agency identification of them in the first instance, vetted by OIRA. Rules that are not so identified may be issued without OIRA review. This selectivity streamlined the review process considerably and made it possible to include, for the first time, a deadline (of 90 days, with one 30-day extension allowed) for completion of OIRA review. In the event of an unresolved dispute between OIRA and the agency, the Vice President is directed to make the decision (or recommend one to the President).<br />
<br />
The review process set forth in the Executive Order made significant improvements in transparency. Following an ACUS recommendation closely, it provides that after the agency has concluded its rulemaking it should make available to the public all submissions to OIRA and identify all changes made in the rule, noting those made at the behest of OIRA. In addition, OIRA, for its part, must regularize the way it receives any outside communications concerning an agency rule that is subject to review. Only the Administrator or her designee may receive such communications. OIRA must forward any such communications to the agency within ten days, invite agency officials to any meetings held with outsiders, and maintain a public log of all such contacts. At the end of the proceeding OIRA must also make available all documents exchanged with the agency.<br />
<br />
In place of the Reagan Executive Order 12498 on regulatory planning, the Clinton Order establishes its own yearly planning mechanism. It continues the semiannual publication of the [https://www.reginfo.gov/public/do/eAgendaMain Unified Regulatory Agenda], which lists all proposed, pending, and completed regulatory and deregulatory actions. And it requires that the October Agenda contain each agency’s annual Regulatory Plans, which must be approved personally by the agency head. These plans must be forwarded to OIRA (and then on to affected agencies, the Vice President and a group of named high-level White House Advisors) by June 1 of each year. The plans are supposed to also include agency determinations on which existing rules are to be reviewed and reconsidered during the ensuing year and “preliminary estimates of the anticipated costs and benefits” of each rule planned for that calendar year. These actions do not represent any sharp break from the practices of previous administrations. However, Executive Order 12866 is a departure in one regard—for the first time the independent regulatory agencies are specifically directed to comply with the planning and agenda provisions (though not with the rule-review process).<br />
<br />
The Clinton Executive Order was generally well received by most observers of the regulatory scene. Its basic approach has remained fundamentally unchanged since its issuance, and OIRA has worked out a stable and workable relationship with the agencies in administering it. The once rather vibrant legal and policy debate over the pros and cons of presidential review has gradually evolved into a fairly broad agreement that it is legal and, if properly administered, is essential to effective executive branch management. Nevertheless, there has been some serious criticism of OIRA’s failure to meet the deadlines set in the Order. <br />
<br />
President Clinton also issued a [https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf presidential directive on plain language] and number of other executive orders that remain in effect concerning: environmental justice in minority populations and low-income populations ([https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO12898envjustice.pdf Executive Order 12898]), civil justice reform ([https://www.govinfo.gov/content/pkg/FR-1996-02-07/pdf/96-2755.pdf Executive Order 12988]), protection of children from environmental risks ([https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Executive Order 13045]), federalism ([https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Executive Order 13132]), and consultation with Indian Tribal Governments ([https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Executive Order 13175]).<br />
<br />
President Bush continued the use of Executive Order 12866, although he did make several significant changes. In 2002, he made some small changes in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review], basically removing the Vice President from the process. In January 2007, in Executive Order 13422, [https://www.govinfo.gov/content/pkg/FR-2007-01-23/pdf/07-293.pdf Further Amendment to Executive Order 12866 on Regulatory Planning and Review], he made more fundamental changes. Most significantly he added a requirement that “significant guidance documents” also be reviewed by OIRA in a way similar to significant regulatory actions. He also required that agencies identify in writing specific “market failures” that necessitate a rulemaking, that agency Regulatory Policy Officers be presidential appointees, that these officers must approve the Regulatory Plan, that aggregate costs and benefits for all rules must be included in the Regulatory Plan, and that agencies consider whether to use “formal” (“on the record”) rulemaking for “complex determinations.” However, as mentioned below, President Obama, upon assuming office, revoked the Bush changes and reinstated the original Clinton order. However, by later memorandum, the requirement that significant guidance documents be reviewed by OIRA was reinstated.<br />
<br />
OIRA did issue a [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/pubpress/2001-38-attach.pdf memorandum] in September 2001 putting its own stamp on the Executive Order 12866 process. The memorandum describes the “general principles and procedures that will be applied by OMB in the implementation of Executive Order 12866 and related statutory and executive authority.”<br />
<br />
Significantly, during the Bush Administration, OIRA also announced several new initiatives in its review process. First, it made extensive use of its website to publish its guidelines and other information pertaining to its review process and specific rule reviews. This continues today. Second, it began the practice of issuing public “return letters” that send rules back to the agency for reconsideration, “review letters” that comment on aspects of a particular rule review, and “prompt letters,” which are sent on OMB’s initiative and contain suggestions for new or stronger regulations. While these letters are still posted on [https://www.reginfo.gov/public/do/eoReturnLetters reginfo.gov], the Obama and the Trump Administrations have made little use of this practice. <br />
<br />
More importantly, during the Bush Administration, OMB issued four far-reaching documents affecting the regulatory process that remain in effect today. In 2003 it issued a revised [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf OMB Circular A-4], which provides guidance on the development of regulatory analyses. OMB also issued a more far-reaching and controversial [https://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05-03.pdf Peer Review Bulletin] in December 2004, which requires administrative agencies to conduct a peer review on all “influential regulatory information that the agency intends to disseminate.” Finally, in 2007, OMB issued an important new government-wide [https://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/E7-1066.pdf Bulletin on Good Guidance Practices.] It also (along with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy]) issued a set of [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. In so doing it declined to finalize a Proposed Risk Assessment Bulletin that the two agencies had issued in January 2006, in favor of updating the Clinton Administration’s Principles issued in 1995. Finally, President Bush issued two other executive orders concerning regulations that remain in effect today: (1) analysis of adverse effects on energy supply, distribution, or use ([https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Executive Order 13211]) and (2) proper consideration of small entities in agency rulemaking ([https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Executive Order 13272]). <br />
<br />
===Developments in the Obama Administration===<br />
Shortly after taking office, President Obama revoked the Bush Amendments to Executive Order 12866 and directed the Director of OMB, in consultation with regulatory agencies, to produce a set of recommendations for a new executive order on federal regulatory review within 100 days, followed by an unusual request for public comments on the same subject. Almost 200 public comments were received. <br />
<br />
After about a year of internal consideration, the White House finally settled on its approach to OMB review—basically to reaffirm Executive Order 12866—with Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review] on January 18, 2011. In Section 1(b), the Order stated: “This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.”<br />
<br />
It did contain a few new mandates and points of emphasis. Most notably, agencies were urged (as appropriate and within legal constraints) to (1) consider “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts”; (2) “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”; (3) “provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded”; (4) for proposed rules, provide “an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings”; (5) seek public input from affected persons “[b]efore issuing a notice of proposed rulemaking”; (6) “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice”; (7) “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned”; and (8) “[w]ithin 120 days of the date of this order, . . . develop and submit to [OIRA] a preliminary plan” for periodically reviewing “its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” <br />
<br />
The one action mandate in the new Executive Order was for agencies to develop plans for retrospective review of their existing regulations. On May 26, 2011, the OIRA Administrator announced the results of this effort. On July 11, 2011, President Obama issued Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], which extended the terms of Executive Order 13563 to independent regulatory agencies. On September 15, 2015, President Obama issued Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People]. Noting the value of insights from behavioral science to improve the “effectiveness and efficiency of Government.”<br />
<br />
===Developments in the Trump Administration===<br />
Shortly after taking office, President Trump issued Executive Order 13771, [https://www.govinfo.gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf Reducing Regulation and Controlling Regulatory Costs,] which requires agencies to identify at least two regulations to be repealed for every proposed or promulgated regulation. 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. The order directed the Director of OMB to provide agency heads with guidance addressing the processes for measuring regulatory costs, the costs of existing regulations, what qualifies as new and offsetting regulations, and situations that would require waivers of the order’s requirements. OIRA issued [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs”] to assist agencies in carrying out these requirements.<br />
<br />
President Trump also issued Executive Order 13777, [https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf Enforcing the Regulatory Reform Agenda]. This order requires the head of each agency to designate an official as its Regulatory Reform Officer (RRO) who would implement initiatives and policies including Executive Order 13771, Executive Order 12866, and Section 6 of Executive Order 13563 regarding retrospective review. All agencies must also form a Regulatory Reform Task Force made up of the RRO, the Regulatory Policy Officer, a representative from the central policy office, and three senior agency officials if the agency is listed in 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 901(b)(1)] (the executive departments, EPA, and NASA), which “shall evaluate existing regulations . . . and make recommendations to the agency head regarding their repeal, replacement, or modification.” In making these determinations, the task forces should focus on regulations that (1) “eliminate jobs, or inhibit job creation;” (2) “are outdated, unnecessary, or ineffective;” (3) “impose costs that exceed benefits;” (4) “create serious inconsistency or otherwise interfere with regulatory initiatives and policies;” (5) “are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001, . . . in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or” (6) “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” The Executive Order also requires agency heads to prioritize regulations that the Regulatory Reform Task Force identifies as outdated, unnecessary, or ineffective when implementing regulatory offsets under Executive Order 13771.<br />
<br />
Finally, President Trump issued Executive Order 13783, [https://www.govinfo.gov/content/pkg/FR-2017-03-31/pdf/2017-06576.pdf Promoting Energy Independence and Economic Growth,] which directs agencies to review regulations that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” This order also revoked Executive Order 13653, [https://www.govinfo.gov/content/pkg/FR-2013-11-06/pdf/2013-26785.pdf Preparing the United States for the Impact of Climate Change], and memoranda under the Obama Administration related to climate change.<br />
<br />
===Developments in the Biden Administration===<br />
Within his first two months in office, President Biden rescinded several of President Trump’s executive orders related to the rulemaking process. In addition, President Biden issued a memorandum titled Modernizing Regulatory Review. This memorandum explicitly reaffirms Executive Orders 12,866 and 13,563. Additionally, it directs the OMB Director to work with agencies to produce a set of recommendations that improves and modernizes regulatory review. The memorandum specifies that these recommendations should include concrete suggestions on how the regulatory review process can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Furthermore, the memorandum specifies that the recommendations should, among other actions, include proposed reforms to Circular A-4 to promote these goals; suggest procedures that take into account distributional impacts in regulatory analyses; propose how OIRA can partner with agencies to “explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits”; and determine an appropriate approach to the review of guidance documents.<br />
<br />
==Bibliography==<br />
===Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg33312/pdf/CHRG-110hhrg33312.pdf Amending Executive Order 12866: Good Governance or Regulatory Usurpation?], Hearing Before Subcomm. on Commercial and Admin. Law, H. Comm. of the Judiciary, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg86439/pdf/CHRG-108hhrg86439.pdf How to Improve Regulatory Accounting: Costs, Benefits and Impacts of Federal Regulations], Hearing Before Subcomm. on Energy Policy, Nat. Res. and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004) (statement of John D. Graham, Administrator of OIRA).<br />
*OIRA Insight, Reform, and Accountability Act, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt19/pdf/CRPT-115hrpt19-pt1.pdf H.R. Rep. No. 115-19] (2017).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg20632/pdf/CHRG-114hhrg20632.pdf Assessing the Obama Years: OIRA and Regulatory Impacts on Jobs, Wages and Economic Recovery], Hearing Before Subcomm. On Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2016) ([https://judiciary.house.gov/hearing/assessing-obama-years-oira-regulatory-impacts-jobs-wages-economic-recovery/ video]).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26026/pdf/CHRG-114hhrg26026.pdf Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking], Hearing Before Subcomm. on Health Care, Benefits and Admin. Rules & Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/challenges-facing-oira-ensuring-transparency-effective-rulemaking/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82203/pdf/CHRG-113hhrg82203.pdf Reducing Red Tape: The New OIRA Administrator’s Perspective], Hearing Before H. Comm. on Small Bus., 113th Cong. (2013).<br />
<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on the Costs and Benefits of Regulations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Report to Congress on the Costs and Benefits of Federal Regulations (Sept. 30, 1997). Notice of availability of draft report and request for comments, 62 Fed. Reg. 39352 (July 22, 1997).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport1998.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (January 1999). Notice of availability of draft report and request for comments, 63 Fed. Reg. 44034 (Aug. 17, 1998), extended 63 Fed. Reg. 49935 (Sept. 18, 1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2000fedreg-charts.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (June 2000). Notice of availability of draft report and request for comments, 65 Fed. Reg. 1296 (Jan. 7, 2000); extended 65 Fed. Reg. 4447 (Jan. 27, 2000) and 65 Fed. Reg. 7198 (Feb. 7, 2000).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2001). Notice of availability of draft report and request for comments, 66 Fed. Reg. 22041 (May 2, 2001); extended 66 Fed. Reg. 34963 (July 2, 2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2002). Notice of availability of draft report and request for comments, 67 Fed. Reg. 15014 (Mar. 28, 2002).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (September 2003). Notice of availability of draft report and request for comments, 68 Fed. Reg. 15772 (Apr. 1, 2003).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2004). Notice of availability of draft report and request for comments, 69 Fed. Reg. 7987 (Feb. 20, 2004).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2005). Notice of availability of draft report and request for comments, 70 Fed. Reg. 14735 (Mar. 23, 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2007). Notice of availability of draft report and request for comments, 71 Fed. Reg. 19213 (Apr. 13, 2006).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2008). Notice of availability of draft report and request for comments, 72 Fed. Reg. 11061 (Mar. 12, 2007).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2009). Notice of availability of draft report and request for comments, 73 Fed. Reg. 55169 (Sept. 24, 2008).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Jan. 27, 2010). Notice of availability of draft report and request for comments, 74 Fed. Reg. 48101 (Sept. 21, 2009).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (July 2010). Notice of availability of draft report and request for comments, 75 Fed. Reg. 22630 (Apr. 29, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2011). Notice of availability of draft report and request for comments, 76 Fed. Reg. 18260 (Apr. 1, 2011).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (April 2013). Notice of availability of draft report and request for comments, 77 Fed. Reg. 22003 (Apr. 12, 2012).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (May 2014). Notice of availability of draft report and request for comments, 78 Fed. Reg. 29780 (May. 21, 2013).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 15, 2015). Notice of availability of draft report and request for comments, 72 Fed. Reg. 37776 (July 2, 2014).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Mar. 10, 2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/12/draft_2017_cost_benefit_report.pdf 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Feb. 23, 2018).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Program of the United States Government'' (1987-1988) (and through 1990-91).<br />
*''Report on Executive Order No. 12866'', 59 Fed. Reg. 24276 (May 10, 1994).<br />
*''More Benefits Fewer Burdens—Creating a Regulatory System that Works For the American People'', A Report to the President on the Third Anniversary of Executive Order 12866 (1996).<br />
</div><br />
<br />
===ACUS Documents===<br />
====Recommendations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*88-9 [https://www.acus.gov/sites/default/files/documents/88-9.pdf Presidential Review of Agency Rulemaking]<br />
*93-4 [https://www.acus.gov/sites/default/files/documents/93-4.pdf Improving the Environment for Agency Rulemaking]<br />
*95-3 [https://www.acus.gov/sites/default/files/documents/95-3.pdf Review of Existing Agency Regulations]<br />
*2011-6 [https://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf International Regulatory Cooperation]<br />
*2012-5 [https://www.acus.gov/sites/default/files/Final-Recommendation-2012-5-Improving-Agency-Coordination.pdf Improving Coordination of Related Agency Responsibilities]<br />
*2013-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202013-2%20%28Benefit-Cost%20Analysis%29_0.pdf Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%25202014-5%2520%2528Retrospective%2520Review%2529_1.pdf Retrospective Review of Agency Rules]<br />
*2015-1 [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Recommendation%20FINAL_0.pdf Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2017-3 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-3%20%28Plain%20Language%20in%20Regulatory%20Drafting%29.pdf Plain Language in Regulatory Drafting]<br />
*2017-6 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-6%20%28Learning%20from%20Regulatory%20Experience%29_0.pdf Learning from Regulatory Experience]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
</div><br />
===CRS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Maeve P. Carey, RL32240, ''The Federal Rulemaking Process: An Overview'' (June 17, 2013).<br />
*Maeve P. Carey, R41974, ''Cost-Benefit and Other Analysis Requirements in the Rulemaking Process'' (Dec. 9, 2014).<br />
*Vivian S. Chu & Daniel T. Shedd, R42720, ''Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues'' (Sept. 10, 2012).<br />
*Vivian S. Chu & Daniel T. Shedd, RS20846, ''Executive Orders: Issuance, Modification, and Revocation'' (Apr. 6, 2014).<br />
*Curtis Copeland, RL33862, ''Changes to the OMB Regulatory Review Process by Executive Order 13422'' (Jan. 3, 2008).<br />
*Curtis Copeland, RL32397, ''Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs'' (June 9, 2009).<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/RCED84-62, [https://www.gao.gov/assets/150/141408.pdf Cost-Benefit Analysis Can Be Useful in Assessing Environmental Regulations, Despite Limitations] (1984).<br />
*T-GGD-99-93, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-99-93/pdf/GAOREPORTS-T-GGD-99-93.pdf Federalism: Implementation of Executive Order 12612 in the Rulemaking Process] (1999).<br />
*GAO/T-GGD-99-131, [https://www.gao.gov/assets/110/108000.pdf Federalism: Previous Initiatives Have Had Little Effect on Agency Rulemaking] (1999).<br />
*GAO/ GGD-99-59, [https://www.gao.gov/assets/160/156562.pdf Regulatory Accounting: Analysis of OMB’s Reports on the Costs and Benefits of Federal Regulation] (1999).<br />
*GAO/GGD-94-28, [https://www.gao.gov/assets/220/218925.pdf Regulatory Burden: Recent Studies, Industry Issues, and Agency Initiatives] (1993).<br />
*GAO/GGD-97-2, [https://www.gao.gov/assets/160/155661.pdf Regulatory Burden: Measurement Challenges and Concerns Raised by Selected Companies] (1996).<br />
*GAO/RCED-98-142, [https://www.gao.gov/assets/160/156173.pdf Regulatory Reform: Agencies Could Improve Development, Documentation, and Clarity of Regulatory Economic Analysis] (1998).<br />
*GAO/GGD-98-31, [https://www.gao.gov/assets/230/225071.pdf Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always Clearly Documented] (1998).<br />
*GAO/ PEMD-95-18BR, [https://www.gao.gov/assets/80/78970.pdf Regulatory Reform: Information on Costs, Cost-Effectiveness, and Mandated Deadlines for Regulations] (1995).<br />
*GAO-03-1015, [https://www.gao.gov/assets/240/239832.pdf Regulatory Takings: Implementation of Executive Order on Government Actions Affecting Private Property Use] (2003).<br />
*GAO-03-929, [https://www.gao.gov/assets/160/157476.pdf Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews] (2003).<br />
*GAO-05-289, [https://www.gao.gov/assets/250/247171.pdf Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules] (2005).<br />
*GAO-09-205, [https://www.gao.gov/assets/290/288538.pdf Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews] (2009).<br />
*GAO-13-588, [https://www.gao.gov/assets/660/656488.pdf International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency Guidance] (2013).<br />
*GAO-14-423T, [https://www.gao.gov/assets/670/661540.pdf Federal Rulemaking: Regulatory Review Processes Could Be Enhanced] (2014).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-14-519, [https://www.gao.gov/assets/670/664872.pdf Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses] (2014).<br />
*GAO-14-714, [https://www.gao.gov/assets/670/665745.pdf Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent] (2014).<br />
*GAO-15-368, [https://www.gao.gov/assets/670/669688.pdf Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices] (2015).<br />
*GAO-15-718, [https://www.gao.gov/assets/680/672572.pdf Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees] (2015).<br />
*GAO-16-720, [https://www.gao.gov/assets/680/679518.pdf Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance] (2016).<br />
*GAO-18-22, [https://www.gao.gov/assets/690/687875.pdf Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions] (2017).<br />
*GAO-18-183, [https://www.gao.gov/assets/700/690624.pdf Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance During and at the End of Presidents’ Terms] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Office of Legal Counsel, ''Op. on Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498''.<br />
*Office of Legal Counsel, Memorandum from Larry L. Simms, Acting Assistant Attorney General, [https://www.justice.gov/file/22586/download Proposed Executive Order Entitled “Federal Regulation,”] 5 Op. O.L.C. 59 (1981).<br />
*Council on Envtl. Quality, [https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).<br />
*Envtl. Protection Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/contsetc.pdf The Benefits and Costs of the Clean Air Act, 1970-1990]—Draft Report for Congress (April 1997).<br />
*Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, [https://ws680.nist.gov/publication/get_pdf.cfm?pub_id=200118 Tenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment] (2007).<br />
*Office of the Vice President, ''Creating a Government That Works Better and Costs Less, Improving Regulatory Systems'', National Performance Review (1993).<br />
*Statement #18, [https://www.acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf Improving the Timeliness of OIRA Regulatory Review], 78 Fed. Reg. 76275 (Dec. 17, 2013).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''OIRA Thirtieth Anniversary Conference'', 63 Admin. L. Rev. (special ed.) (2011).<br />
*ABA Section of Admin. Law & Regulatory Practice, [https://www.americanbar.org/content/dam/aba/administrative/administrative_law/Final%20POTUS%20Report%2010-26-16.authcheckdam.pdf Report: Improving the Administrative Process: A Report to the President-Elect of the United] (2016), 69 Admin. L. Rev. 205 (2017).<br />
*Rebecca Adams, ''Regulating the Rule-Makers: John Graham at OIRA'', CQ Weekly 520 (Feb. 23, 2002).<br />
*Joseph E. Aldy, [https://www.acus.gov/sites/default/files/documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy] (Nov. 17, 2014) (report to ACUS).<br />
*Robert A. Anthony, ''Executive Order, OMB Bulletin Focus on Guidances'', 32 Admin. L. & Reg. News 10, Spring 2007.<br />
*William D. Araiza, ''Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking'', 54 Admin. L. Rev. 611 (2002).<br />
*Donald R. Arbuckle, ''Obscure But Powerful: Who Are Those Guys?'', 63 Admin. L. Rev. 131 (special ed.) (2011).<br />
*Nicholas Bagley & Richard L. Revesz, ''Centralized Oversight of the Regulatory State'', 106 Colum. L. Rev. 1260 (2006).<br />
*Stephen J. Balla, Jennifer M. Deets, & Forrest Maltzman, ''Outside Communications and OIRA Review of Agency Regulations'', 63 Admin. L. Rev. 149 (special ed.) (2011).<br />
*Rachel Bayefsky, Note, [https://www.yalelawjournal.org/pdf/1732.Bayefsky.1782_u52fptmb.pdf Dignity as a Value in Agency Cost-Benefit Analysis], 123 Yale L.J. 1732 (2014).<br />
*Josh Blackman, [https://illinoislawreview.org/wp-content/uploads/2018/03/Blackman.pdf Presidential Maladministration], 2018 U. Ill. L. Rev. 397 (2018).<br />
*James F. Blumstein, ''Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues'', 51 Duke L. J. 851 (2001).<br />
*Alexander Bolton, Rachel Augustine Potter, & Sharece Thrower, ''Organizational Capacity, Regulatory Review, and the Limits of Political Control'', 32 J. L. Econ. & Org. 242 (2016).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1490&context=mlr Inside the Administrative State: A Critical Look at the Practice of Presidential Control], 105 Mich. L. Rev. 47 (2006).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1445&context=mlr Legitimacy, Selectivity, and the Disunitary Executive: A Reply to Sally Katzen], 105 Mich. L. Rev. 1511 (2007).<br />
*Harold H. Bruff, ''Presidential Management of Agency Rulemaking'', 57 Geo. Wash. L. Rev. 533 (1989).<br />
*Reeve T. Bull, ''Building a Framework for Governance: Retrospective Review and Rulemaking Petitions'', 67 Admin. L. Rev. 265 (2015).<br />
*Ming H. Chen, ''Administrator-in-Chief: The President and Executive Action in Immigration Law'', 69 Admin. L. Rev. 347 (2017).<br />
*John C. Coates IV, [https://www.yalelawjournal.org/pdf/a.882.Coates.1011_owe353wf.pdf Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications], 124 Yale L.J. 882 (2015).<br />
*Cary Coglianese, [http://yalejreg.com/moving-forward-with-regulatory-lookback/ Moving Forward with Regulatory Lookback], 30 Yale J. on Reg. Online 57 (2013).<br />
*Cary Coglianese, ''The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State'', 69 Admin. L. Rev. 43 (2017).<br />
*Cary Coglianese, [http://www.aulawreview.org/au_law_review/wp-content/uploads/2018/02/02-Coglianese_67AMULREV733.pdf Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel Cole, [https://www.law.ua.edu/pubs/lrarticles/Volume%2064/Issue%201/2%20Cole%2055%20-%2089.pdf Law, Politics, and Cost-Benefit Analysis], 64 Ala. L. Rev. 55 (2012).<br />
*John Conyers, Jr., Henry C. Johnson, Jr., & David N. Cicilline, [http://harvardjol.com/wp-content/uploads/2017/05/HLL201-1.pdf The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration], 54 Harv. J. on Legis. 365 (2017).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Final%20BCA%20Report%204-30-13.pdf Economic Analysis and Independent Regulatory Agencies] (Apr. 30, 2013) (report to ACUS).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Report%20CIRCULATED%20to%20Committees%20on%2010-21-13.pdf Length of Rule Reviews by the Office of Information and Regulatory Affairs] (Oct. 7, 2013) (report to ACUS).<br />
*Curtis Copeland, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2208&context=ulj The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking], 33 Fordham Urb. L.J. 1257 (2006).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Draft%20Report%20041315%20FINAL_0.pdf The Unified Agenda: Proposals for Reform] (Apr. 13, 2015) (report to ACUS).<br />
*Robin Kundis Craig, ''The Bush Administration’s Use and Abuse of Rulemaking. Part I: The Rise of OIRA'', 28 Admin. & Reg. L. News 8 (Summer 2003).<br />
*Stephen Croley, ''White House Review of Agency Rulemaking: An Empirical Investigation'', 70 U. Chi. L. Rev. 821 (2003).<br />
*Nestor M. Davidson &. Ethan J. Lieb, [https://georgetownlawjournal.org/articles/64/regleprudence/pdf Regleprudence—At OIRA and Beyond], 103 Geo. L.J. 259 (2015).<br />
*Christopher C. DeMuth & Douglas H. Ginsburg, ''White House Review of Agency Rulemaking'', 99 Harv. L. Rev. 1075 (1986).<br />
*Christopher DeMuth, ''OIRA at Thirty'', 63 Admin. L. Rev. 15 (special ed.) (2011).<br />
*Caroline DeWitt, Comment, ''The Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review'', 6 Admin. L. J. Am. U. 759 (1993).<br />
*Susan E. Dudley, ''Observations on OIRA’s Thirtieth Anniversary'', 63 Admin. L. Rev. 113 (special ed.) (2011).<br />
*Susan E. Dudley, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1006&context=caselrev Improving Regulatory Accountability: Lessons From the Past and Prospects for the Future], 65 Case W. Res. L. Rev. 1027 (2015).<br />
*E. Donald Elliott, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4231&context=lcp TQM’ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It], 57 Law & Contemp. Probs. 167 (1994).<br />
*Blake Emerson & Cheryl Blake, [https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20Drafting_Final%20Report.pdf Plain Language in Regulatory Drafting] (Dec. 8, 2017) (report to ACUS).<br />
*Jaclyn L. Falk, Comment, [https://cpb-us-w2.wpmucdn.com/usfblogs.usfca.edu/dist/7/272/files/2014/09/The-Behind-Closed-Door-Policy-Executive-Influence-in-the-Environmental-Protection-Agencys-Informal-Rulemaking.pdf The Behind Closed Door Policy: Executive Influence in the Environmental Protection Agency’s Informal Rulemaking], 47 U.S.F. L. Rev. 593 (2013).<br />
*Cynthia R. Farina, ''Undoing the New Deal Through the New Presidentialism'', 22 Harv. J. L. & Pub. Pol’y 227 (1998).<br />
*Scott Farrow, ''Improving Regulatory Performance: Does Executive Office Oversight Matter?'' (2001).<br />
*Arthur Fraas, ''Observations on OIRA’s Policies and Procedures'', 63 Admin. L. Rev. (special ed.) 79 (2011).<br />
*Arthur Fraas & Randall Lutter, ''On the Economic Analysis of Regulations at Independent Regulatory Commissions'', 63 Admin. L. Rev. 213 (special ed.) (2011).<br />
*Jody Freeman & Jim Rossi, [https://www.acus.gov/sites/default/files/documents/Freeman-Rossi-ACUS-Report-5-30-12-PDF.pdf Improving Coordination of Related Agency Responsibilities] (May 30, 2012) (report to ACUS).<br />
*William Funk “Agency Oversight by the Political Branches,” ch. 11 in Section on Administrative Law and Regulatory Practice, ''A Guide to Judicial and Political Review of Federal Agencies'' 259-304 (2d ed. Michael E. Herz, Richard Murphy & Kathryn Watts eds., 2015).<br />
*Margaret Gilhooley, [https://journals.iupui.edu/index.php/inlawrev/article/view/2956/2879 Executive Oversight of Administrative Rulemaking: Disclosing the Impact], 25 Ind. L. Rev. 299 (1991).<br />
*John D. Graham & Cory R. Liu, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_425_Graham_Liu-1.pdf Regulatory and Quasi-Regulatory Activity Without OMB and Cost-Benefit Review], 37 Harv. J.L. & Pub. Pol’y 425 (2014).<br />
*John D. Graham, Paul R. Noe & Elizabeth L. Branch, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2198&context=ulj Managing the Regulatory State: The Experience of the Bush Administration], 33 Fordham Urb. L. J. 953 (2006).<br />
*Wendy L. Gramm, ''Regulatory Review Issues, October 1985–February 1988'', 63 Admin. L. Rev. 27 (special ed.) (2011).<br />
*Abner S. Greene, ''Checks and Balances in an Era of Presidential Lawmaking'', 61 U. Chi. L. Rev. 123 (1994).<br />
*Robert W. Greene, [https://rutgerspolicyjournal.org/sites/jlpp/files/Greene.pdf Improving U.S. Financial Regulation Through OIRA Review & Robust Regulatory Analysis Standards], 14 Rutgers J.L. & Pub. Pol’y 89 (2016).<br />
*Sarah Grimmer, Note, ''Public Controversy Over Peer Review'', 57 Admin. L. Rev. 275 (2005).<br />
*Zachary J. Gubler, [https://www.acus.gov/sites/default/files/documents/ZGubler%20ACUS%20Final%20Report%2811-17%29.pdf Regulatory Experimentation] (Nov. 17, 2017) (report to ACUS).<br />
*Hiba Hafiz, [http://wisconsinlawreview.org/wp-content/uploads/2018/01/Hafiz-Final.pdf Economic Analysis of Labor Regulation], 2017 Wis. L. Rev. 1115 (2017).<br />
*Robert W. Hahn, Risks, ''Costs, and Lives Saved: Getting Better Results From Regulation'', (Oxford Univ. Press & AEI Press, 1996).<br />
*Robert W. Hahn & John A. Hird, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1177&context=yjreg The Costs and Benefits of Regulation: Review and Synthesis], 8 Yale J. on Reg. 233 (1991).<br />
*Lisa Heinzerling, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2202&context=ulj Statutory Interpretation in the Era of OIRA], 33 Fordham Urb. L. J. 1097 (2006).<br />
*Lisa Heinzerling, [https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1741&context=pelr Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House], 31 Pace Envtl. L. Rev. 325 (2014).<br />
*Thomas D. Hopkins, ''The Evolution of OIRA Oversight—CWPS to OIRA'', 63 Admin. L. Rev. 71 (special ed.) (2011).<br />
*Elena Kagan, ''Presidential Administration'', 114 Harv. L. Rev. 2245 (2001).<br />
*Sally Katzen, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1444&context=mlr A Reality Check on an Empirical Study: Comments on “Inside the Administrative State,”] 105 Mich. L. Rev. 1497 (2007).<br />
*Sally Katzen, ''OIRA at Thirty: Reflections and Recommendations'', 63 Admin. L. Rev. 103 (special ed.) (2011).<br />
*Cornelius M. Kerwin & Scott R. Furlong, ''Rulemaking: How Government Agencies Write Law and Make Policy'' (CQ Press, 4th ed. 2011).<br />
*Peter Ketcham-Colwill, [https://www.gwlr.org/wp-content/uploads/2018/02/82-Geo.-Wash.-L.-Rev.-1622.pdf Presidential Influence Over Agency Rulemaking Through Regulatory Review], 82 Geo. Wash. L. Rev. 1622 (2014).<br />
*Robert E. Litan & William D. Nordhaus, ''Reforming Federal Regulation'' (Yale Univ. Press, 1983).<br />
*Michael A. Livermore, [http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/Livermore_Art.pdf Cost-Benefit Analysis and Agency Independence], 81 U. Chi. L. Rev. 609 (2014).<br />
*Michael A. Livermore & Richard L. Revesz, [https://georgetownlawjournal.org/articles/119/regulatory-review-capture-agency/pdf Regulatory Review, Capture, and Agency Inaction], 101 Geo. L.J. 1337 (2013)<br />
*Jeffrey S. Lubbers, ''A Guide to Federal Agency Rulemaking'' (ABA Section of Admin. Law & Regulatory Practice, 5th ed. 2012).<br />
*Jeffrey S. Lubbers, ''OMB to Require Peer Review for Regulatory Science Documents'', 29 Admin. L. & Reg. News 3, Fall 2003.<br />
*Maureen Mahon, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1179&context=law_lawreview Proceed With Caution: The Implications of the OMB Peer Review Guidelines on Precautionary Legislation], 84 Wash. U. L. Rev. 461 (2006).<br />
*Jonathan S. Masur & Eric A. Posner, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4712&context=clr Unquantified Benefits and the Problem of Regulation Under Uncertainty], 102 Cornell L. Rev. 87 (2016).<br />
*Randolph J. May, ''OMB’s Peer Review Proposal—Swamped by Science?'', 29 Admin. & Reg. L. News 4, Spring 2004.<br />
*Michael McCarthy, [https://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91-1] (Oct. 19, 2011) (report to ACUS).<br />
*Thomas O. McGarity, ''Presidential Control of Regulatory Agency Decisionmaking'', 36 Am. U. L. Rev. 443 (1987).<br />
*Thomas O. McGarity, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1538&context=dlj Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age], 61 Duke L.J. 1671 (2012).<br />
*Patrick A. McLaughlin & Jerry Ellig, ''Does OIRA Review Improve the Quality of Regulatory Impact Analysis? Evidence from the Final Year of the Bush II Administration'', 63 Admin. L. Rev. 179 (special ed.) (2011).<br />
*Emily Hammond Meazell, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1539&context=dlj Presidential Control, Expertise, and the Deference Dilemma], 61 Duke L.J. 1763 (2012).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1208&context=articles Disclosing “Political” Oversight of Agency Decision Making], 108 Mich. L. Rev. 1127 (2010).<br />
*Nina Mendelson, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Mendelson_May.pdf Another Word on the President’s Statutory Authority over Agency Action], 79 Fordham L. Rev. 2455 (2011).<br />
*Nina A. Mendelson & Jonathan B. Wiener, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_447_Mendelson_Wiener.pdf Responding to Agency Avoidance of OIRA], 37 Harv. J.L. & Pub. Pol’y 447 (2014).<br />
*Gillian E. Metzger & Kevin M. Stack, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mlr Internal Administrative Law], 115 Mich. L. Rev. 1239 (2017).<br />
*James C. Miller III, ''The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future'', 63 Admin. L. Rev. 93 (special ed.) (2011).<br />
*Alan B. Morrison, ''OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation'', 99 Harv. L. Rev. 1059 (1986).<br />
*William A. Niskanen, ''Clinton Regulation Will Be “Rational”: Interview with Sally Katzen, the New OIRA Administrator'', Regulation Magazine No. 3, at 36 (1993).<br />
*Lars Noah, ''Peer Review and Regulatory Reform'', 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,606 (2000).<br />
*Paul Noe, ''Analyzing the Destruction of Human Capital by Regulations'', 63 Admin. L. Rev. 203 (special ed.) (2011).<br />
*Note, ''Regulatory Analyses and Judicial Review of Informal Rulemaking'', 91 Yale L. J. 739 (1982).<br />
*Note, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol124_%20OIRA%20_avoidance.pdf OIRA Avoidance], 124 Harv. L. Rev. 994 (2011).<br />
*Note, ''The Inflation Impact Statement Program: An Assessment of the First Two Years'', 26 Am. U. L. Rev. 1138 (1977).<br />
*Jennifer Nou, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_nou.pdf Agency Self-Insulation Under Presidential Review], 126 Harv. L. Rev. 1755 (2013).<br />
*Jennifer Nou & Edward H. Stiglitz, [https://southerncalifornialawreview.com/wp-content/uploads/2018/01/89_733.pdf Strategic Rulemaking Disclosure], 89 S. Cal. L. Rev. 733 (2016).<br />
*Anne Joseph O’Connell, [http://www.virginialawreview.org/sites/virginialawreview.org/files/889.pdf Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State], 94 Va. L. Rev. 889 (2008).<br />
*Erik D. Olson, ''The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291'', 4 Va. J. Nat. Resources L. 1 (1984).<br />
*Eloise Pasachoff, [https://www.yalelawjournal.org/pdf/a.2182.Pasachoff.2290_aqo1aub4.pdf The President’s Budget as a Source of Agency Policy Control], 125 Yale L.J. 2182 (2016).<br />
*Robert V. Percival, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1148&context=dlj Presidential Management of the Administrative State: The Not-So-Unitary Executive], 51 Duke L. J. 963 (2001).<br />
*Robert V. Percival, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Percival_May.pdf Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?], 79 Fordham L. Rev. 2487 (2011).<br />
*Richard J. Pierce, Jr., [http://www.nyujlpp.org/wp-content/uploads/2016/06/Pierce-Regulatory-Budget-Debate-19nyujlpp249.pdf The Regulatory Budget Debate], 19 N.Y.U. J. Legis. & Pub. Pol’y 249 (2016).<br />
*Eric A. Posner & E. Glen Weyl, [https://www.yalelawjournal.org/pdf/Posner-WeylPDF_ijby4z9e.pdf Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms], 124 Yale L.J. Forum 246 (2015).<br />
*Robert L. Rabin, ''Federal Regulation in Historical Perspective'', 38 Stan L. Rev. 1189 (1986).<br />
*Richard L. Revesz, [http://yalejreg.com/articlepdfs/34-JREG-545.pdf Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation], 34 Yale J. On Reg. 545 (2017).<br />
*Richard L. Revesz, [http://www.californialawreview.org/wp-content/uploads/2014/12/02-Revesz.pdf Quantifying Regulatory Benefits], 102 Cal. L. Rev. 1423 (2014).<br />
*Richard L. Revesz & Michael A. Livermore, ''Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health'' (Oxford Univ. Press 2008).<br />
*Delissa Ridgway et al., ''The Council on Competitiveness and Regulatory Review: A “Kinder, Gentler” Approach to Regulation?'', 6 Admin. L. J. Am. U. 691 (1993).<br />
*David B. Rivkin, ''The Unitary Executive and Presidential Control of Executive Branch Rulemaking'', 7 Admin. L. J. Am. U. 309 (1993).<br />
*Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291'', 80 Mich. L. Rev. 193 (1981).<br />
*Arden Rowell, [https://www.law.uci.edu/lawreview/vol4/no4/Rowell.pdf Time in Cost-Benefit Analysis], 4 UC Irvine L. Rev. 1215 (2014).<br />
*Susan Rose-Ackerman, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1153&context=umlr Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review], 65 U. Miami L. Rev. 335 (2011).<br />
*Andrew Rudalevige, [http://lawreview.syr.edu/wp-content/uploads/2015/09/G-Rudalevige-For-Website.pdf Old Laws, New Meanings: Obama’s Brand of Presidential “Imperialism”], 66 Syracuse L. Rev. 1 (2016).<br />
*J.B. Ruhl & James Salzman, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1170&context=law_lawreview In Defense of Regulatory Peer Review], 84 Wash. U. L. Rev. 1 (2006).<br />
*Thomas O. Sargentich, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/The-Emphasis-on-the-Presidency-in-U.S.-Public-Law-An-Essay-Critiquing-Presidential-Administration.pdf The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration], 59 Admin. L. Rev. 1 (2007).<br />
*Peter M. Shane, ''Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking'', 48 Ark. L. Rev. 161 (1995).<br />
*David R. Sheaffer, [https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1178&context=lr The Price of Regulation: Rethinking Executive Review of Agency Rulemaking], 2016 Mich. St. L. Rev. 1091 (2016).<br />
*Sidney Shapiro, [https://www.acus.gov/sites/default/files/documents/gov.acus_.1995.rec_.95-3.pdf Agency Review of Existing Regulations] (Jan. 15, 1995) (report to ACUS).<br />
*Sidney A. Shapiro, ''OMB’s Dubious Peer Review Procedures'', 34 Envtl. L. Rep. (Envtl. L. Inst.) 10,064 (2004).<br />
*Sidney A. Shapiro, ''OMB’s Revised Peer Review Bulletin'', 29 Admin. L. & Reg. News 10 (Summer 2004).<br />
*Sidney A. Shapiro & Richard Murphy, [https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Shapiro-Murphy.pdf Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation], 48 U.C. Davis L. Rev. 1457 (2015).<br />
*Sidney A. Shapiro & Ronald F. Wright, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1160&context=umlr The Future of the Administrative Presidency: Turning Administrative Law Inside-Out], 65 U. Miami L. Rev. 577 (2011).<br />
*Stuart Shapiro, ''OIRA Inside and Out'', 63 Admin. L. Rev. 135 (special ed.) (2011).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Stuart Shapiro & Debra Borie-Holtz, ''The Politics of Regulatory Reform'' (Routledge 2013).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS).<br />
*Peter L. Strauss, ''Overseer or “The Decider”? The President in Administrative Law'', 75 Geo. Wash. L. Rev. 696 (2007).<br />
*Peter L. Strauss, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=caselrev The President and the Constitution], 65 Case W. Res. L. Rev. 1151 (2015).<br />
*Peter L. Strauss & Cass R. Sunstein, ''The Role of the President and OMB in Informal Rulemaking'', 38 Admin. L. Rev. 181 (1986).<br />
*Cass R. Sunstein, Simpler: ''The Future of Government'' (Simon & Schuster, 2013).<br />
*Cass R. Sunstein, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_sunstein.pdf The Office of Information and Regulatory Affairs: Myths and Realities], 126 Harv. L. Rev. 1838 (2013).<br />
*Cass R. Sunstein, [http://www.bu.edu/bulawreview/files/2014/08/SUNSTEINDYSFUNCTION.pdf The Regulatory Lookback], 94 B.U. L. Rev. 579 (2014).<br />
*Jim Tozzi, ''OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding'', 63 Admin. L. Rev. 37 (special ed.) (2011).<br />
*Paul R. Verkuil, ''Jawboning Administrative Agencies: Ex Parte Contacts by the White House'', 80 Colum. L. Rev. 943 (1980).<br />
*Christopher J. Walker, ''Modernizing the Administrative Procedure Act'', 69 Admin. L. Rev. 629 (2017).<br />
*Adam L. Warber, ''Executive Orders and the Modern Presidency: Legislating from the Oval Office'' (Lynne Reiner Publishers 2006).<br />
*Kathryn A. Watts, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1240&context=mlr Controlling Presidential Control], 114 Mich. L. Rev. 683 (2016).<br />
*Christopher E. Wilson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Not-Good-Enough-for-Government-Work-How-OMBs-Good-Guidance-Practices-May-Unintentionally-Complicate-Administrative-Law.pdf Comment: Not Good Enough for Government Work: How OMB’s Good Guidance Practices May Unintentionally Complicate Administrative Law], 59 Admin. L. Rev. 177 (2007).<br />
</div><br />
<br />
===Miscellaneous===<br />
<br />
*National Academy of Public Administration, ''Presidential Management of Rulemaking in Regulatory Agencies'' (1987).<br />
*[http://www.thecre.com/ombpapers/featuredarticles.html Center for Regulatory Effectiveness].<br />
*Competitive Enterprise Institute, [https://cei.org/10KC Ten Thousand Commands].</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Rulemaking_Requirements_from_the_Executive_Office_of_the_President&diff=1686Rulemaking Requirements from the Executive Office of the President2023-08-15T21:27:48Z<p>MGluth: </p>
<hr />
<div>This section discusses the most significant presidential Executive Orders, Bulletins, and Memoranda, which pertain to the rulemaking process or federal regulation. Other executive orders and memoranda may be found in other sections, e.g., those relating to the [[Federal Advisory Committee Act]].<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)], [https://www.whitehouse.gov/omb/ Office of Management and Budget (OMB)]<br />
<br />
==Executive Orders==<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Executive Order 12372, [https://www.archives.gov/federal-register/codification/executive-order/12372.html Intergovernmental Review of Federal Programs], 47 Fed. Reg. 30959 (July 16, 1982).<br />
*Executive Order 12630, [https://www.archives.gov/federal-register/codification/executive-order/12630.html Governmental Actions and Interference with Constitutionally Protected Property Rights], 53 Fed. Reg. 8859 (Mar. 18, 1988).<br />
*Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 ( Oct. 4, 1993).<br />
*Executive Order 12889, [https://www.govinfo.gov/content/pkg/WCPD-1994-01-03/pdf/WCPD-1994-01-03-Pg2639.pdf Implementation of the North American Free Trade Agreement], 58 Fed. Reg. 69681 (Dec. 30, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations], 59 Fed. Reg. 7629 (Feb. 16, 1994).<br />
*Executive Order 12988, [https://www.govinfo.gov/content/pkg/WCPD-1996-02-12/pdf/WCPD-1996-02-12-Pg189.pdf Civil Justice Reform], 61 Fed. Reg. 4729 (Feb. 7, 1996).<br />
*Executive Order 13045, [https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Protection of Children from Environmental Health Risks and Safety Risks], 62 Fed. Reg. 19885 (Apr. 23, 1997).<br />
*Executive Order 13132, [https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Federalism], 64 Fed. Reg. 43255 (Aug. 10, 1999).<br />
*Executive Order 13175, [https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
*Executive Order 13211, [https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use], 66 Fed. Reg. 28355 (May 22, 2001).<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 16, 2002).<br />
*Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review], 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming Executive Order 12866).<br />
*Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], 76 Fed. Reg. 41587 (July 14, 2011).<br />
*Executive Order 13609, [https://www.govinfo.gov/content/pkg/FR-2012-05-04/pdf/2012-10968.pdf Promoting International Regulatory Cooperation], 77 Fed. Reg. 26413 (May 4, 2012).<br />
*Executive Order 13610, [https://www.govinfo.gov/content/pkg/FR-2012-05-14/pdf/2012-11798.pdf Identifying and Reducing Regulatory Burdens], 77 Fed. Reg. 28469 (May 14, 2012).<br />
*Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People], 80 Fed. Reg. 56356 (Sept. 18, 2015).<br />
*Executive Order 13725, [https://www.govinfo.gov/content/pkg/FR-2016-04-20/pdf/2016-09346.pdf Steps to Increase Competition and Better Inform Consumers and Works to Support Continued Growth of the American Economy], 81 Fed. Reg. 23417 (Apr. 20, 2016).<br />
*Executive Order 14094, [https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf Modernizing Regulatory Review], 88 Fed. Reg. 21,879 (Apr. 11, 2023).<br />
</div><br />
<br />
==Table of Executive Order Requirements==<br />
{| class="wikitable"<br />
|+<br />
!Executive Order (EO)<br />
!Date and Administration of Issue<br />
!Action Items<br />
!Does the EO Contain a Statement Regarding Applicability to Independent Agencies?<br />
|-<br />
|[https://www.archives.gov/federal-register/codification/executive-order/12630.html EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights]<br />
|1988 - Reagan<br />
|''General Principles''. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” <br />
<br />
<br />
''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.”<br />
<br />
''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.<br />
<br />
<br />
''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).<br />
<br />
<br />
''Ensuring Compliance.'' OMB and the Department of Justice are responsible for ensuring compliance with the EO.<br />
|No<br />
|-<br />
|[https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf EO 12866 - Regulatory Planning and Review]<br />
|1993 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12889.pdf EO 12889 - Implementation of the North American Free Trade Agreement]<br />
|1993 - Clinton<br />
|''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.”<br />
<br />
<br />
''Exceptions''<br />
<br />
#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)).<br />
#Perishable Goods. Technical regulations relating to perishable goods.<br />
#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.<br />
#Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection.<br />
<br />
''Definitions''<br />
<br />
#Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7).<br />
#Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7).<br />
|No<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf EO 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations]<br />
|1994 - Clinton<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1996-02-07/pdf/96-2755.pdf EO 12988 - Civil Justice Reform]<br />
|1996- Clinton<br />
|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.<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks]<br />
|1997 - Clinton<br />
|''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.”<br />
''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:<br />
<br />
#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.”<br />
#Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/pdf/99-20729.pdf EO 13132 - Federalism]<br />
|1999 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf EO 13175 - Consultation and Coordination with Indian Tribal Governments]<br />
|2000 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2001-05-22/pdf/01-13116.pdf EO 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use]<br />
|2001 - Bush<br />
|''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.<br />
<br />
<br />
''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. <br />
<br />
<br />
''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. <br />
<br />
<br />
''Publication.'' Agencies must publish the Statement or a summary in the related NPRM and final rule.<br />
|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 . . . ."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2002-08-16/pdf/02-21056.pdf EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking]<br />
|2002 - Bush<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf EO 13563 - Improving Regulation and Regulatory Review]<br />
|2011 - Obama<br />
|''General Principles.'' This EO supplements and reaffirms [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 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.<br />
<br />
<br />
''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.”<br />
<br />
<br />
''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.”<br />
<br />
<br />
''Flexible Approaches.'' Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.”<br />
<br />
<br />
''Objectivity with regard to scientific information.'' Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking.<br />
<br />
<br />
''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.”<br />
|Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review <nowiki>[EO] 12866</nowiki>]."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf EO 13579 - Regulation and Independent Regulatory Agencies]<br />
|2011 - Obama<br />
|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 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.”<br />
|Yes. The EO is entirely geared toward independent agencies.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-04/pdf/2012-10968.pdf EO 13609 - Promoting International Regulatory Cooperation]<br />
|2012 - Obama<br />
|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.<br />
|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.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf EO 13610 - Identifying and Reducing Regulatory Burdens]<br />
|2012 - Obama<br />
|Agencies are instructed to institutionalize regular reviews of their previously 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.<br />
|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)."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2016-04-20/pdf/2016-09346.pdf EO 13725 - Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy]<br />
|2016 - Obama<br />
|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. <br />
|Yes. See § 3(b) for relevant text: "Independent agencies are strongly encouraged to comply with the requirements of this order."<br />
|-<br />
|[https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/06/executive-order-on-modernizing-regulatory-review/ EO 14094 - Modernizing Regulatory Review]<br />
|2023 - Biden<br />
|Agencies should affirmatively promote public participation in rulemaking and proactively engage interested parties. Regulatory analysis should recognize distributive impacts and equity.<br />
|No.<br />
|}<br />
<br />
==Other White House Bulletins and Memoranda==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-119-1.pdf Federal Participation in the Development and Use of Voluntary Standards and in Conformity Assessment Activities] (1998).<br />
*[https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf Plain Language in Government Writing] (1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/pubpress/2001-38-attach.pdf Presidential Review of Agency Rulemaking by OIRA] (2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf OMB’s Circular No. A-4, New Guidelines for the Conduct of Regulatory Analysis] (2004).<br />
*M-05-03, [https://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05-03.pdf Final Information Quality Bulletin for Peer Review] (2004).<br />
*[https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf Final Bulletin for Agency Good Guidance Practices] (2007).<br />
*M-07-24, [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis](2007).<br />
*M-19-14, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf Guidance on Compliance with the Congressional Review Act] (2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01866.pdf Modernizing Regulatory Review] (2021)<br />
</div><br />
<br />
==Overview==<br />
===History of Presidential Oversight of Rulemaking and Regulation===<br />
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. <br />
<br />
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.<br />
<br />
In 1974, President Ford issued an executive order requiring executive branch agencies to prepare an “inflation impact statement” for each “major” federal action. 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” rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to COWPS upon publication of the NPRM. COWPS would review the IIS and, in its discretion, offer informal criticism of the proposal or participate in the public proceedings on the rule. <br />
<br />
President Carter continued presidential review of agency rules by means of Executive Order 12044, ''Improving Government Regulations'', issued in 1978. Under the order, executive agencies were required to: (1) publish semi-annual agendas, describing and giving the legal bases for, any “significant” regulations under development by the agency; (2) establish procedures to identify “significant” rules, to evaluate their need, and to have the agency head assure that the “least burdensome of the acceptable alternatives” was proposed; and (3) prepare a “regulatory analysis” that examined the cost-effectiveness of alternative regulatory approaches for “major rules.”<br />
<br />
President Carter also established a Regulatory Analysis Review Group to review the regulatory analyses prepared for a limited number of proposed “major” rules and to submit comments on the proposed rules during the public comment period. He created another rulemaking review body, the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. These efforts to coordinate agency rulemaking were challenged unsuccessfully in several lawsuits.<br />
<br />
President Reagan acted quickly after taking office to increase control over executive branch rulemaking. On February 17, 1981, the President issued an executive order on federal regulations designed “to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” The new Executive Order 12291, [https://www.archives.gov/federal-register/codification/executive-order/12291.html Federal Regulation], replaced Executive Order 12044, which President Reagan said had “proven ineffective.” <br />
<br />
Executive Order 12291 contained both substantive requirements and procedural steps to be followed in the development and promulgation of new rules. The [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)] in OMB was given responsibility for implementing Executive Order 12291. OMB’s rulemaking review function is supplemented by the powers it was given in the [[Paperwork Reduction Act]] of 1980, by which Congress statutorily established OIRA to, among other things, review and approve or disapprove agency “information collection requests.”<br />
<br />
The Office of Legal Counsel in the U.S. Department of Justice issued an [https://www.justice.gov/file/22586/download opinion] supporting the validity of Executive Order 12291. The opinion stated that the President’s authority to issue the order was based on his constitutional power to “take care that the laws be faithfully executed.” While concluding that any inquiry into Congressional intent in enacting specific rulemaking statutes “will usually support the legality of presidential supervision of rulemaking by Executive Branch agencies,” the opinion stated that presidential supervision of agency rulemaking “is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official.”<br />
<br />
Despite criticism of this new form of presidential review, President Reagan began his second term by expanding the program through Executive Order 12498, [https://www.archives.gov/federal-register/codification/executive-order/12498.html Regulatory Planning Process], which established a “regulatory planning process” with the purpose of helping to “ensure that each major step in the process of rule development is consistent with Administration policy.” <br />
<br />
According to OMB, the problem with regulatory review under Executive Order 12291 was that such review “often came late in the regulatory process, after huge investments of agency time and resources, and often after agency staff commitments to constituents had made it extremely difficult to consider any legally acceptable, but previously ignored, regulatory alternative.” This resulted, OMB said, in the “bureaucracy often present[ing] agency heads with faits accompli.” <br />
<br />
Executive Order 12498’s regulatory planning process was designed to avoid this problem. Under this procedure, the head of each agency was required to determine at the beginning of the regulatory process whether a proposed regulatory venture was “consistent with the goals of the Administration.” At the beginning of the year, Agency heads were to develop a plan for managing the agency’s most significant regulatory actions. OMB then reviewed the plan for consistency with the administration’s program and published the coordinated agency plans in a government-wide document. This document, entitled “Regulatory Program of the United States Government,” governed more than 20 major rulemaking agencies and was published each year during the second Reagan term and the Bush administration to inform Congress and the public of the government’s regulatory plans.<br />
<br />
President Reagan, in 1987 and 1988, issued three additional executive orders, dealing with federalism, interference with property rights (which is still in effect), and the family. OMB was given a role in ensuring coordination of regulatory policy in these areas. President Bush basically continued the program of presidential review of agency rulemaking established by President Reagan, although due to congressional opposition to OIRA actions, President Bush’s nominee to head OIRA was not confirmed. To counter this weakening of OIRA’s authority, President Bush created the Council on Competitiveness, headed by Vice President Quayle, and gave it authority to intervene in major agency rulemakings. Several of the Council’s interventions provoked intense criticisms leading up to the 1992 elections.<br />
<br />
===The Clinton Executive Order—Executive Order 12866===<br />
With the election of President Clinton, one of his first actions was an attempt to reestablish some bipartisan consensus on rulemaking review. His nominee as OIRA Administrator was the first subcabinet nominee to be appointed. Following the example of the Reagan Administration, President Clinton then set out to redraft the extant Executive Order and produced Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], on September 30, 1993. This Executive Order, which remains operative, carries over many of the principles of Executive Order 12291 and Executive Order 12498 and made some significant modifications that simplified the process, made it more selective, and introduced more transparency into the OMB/agency consultations. In drafting this Executive Order, the Clinton Administration followed many of the suggestions in ACUS [https://www.acus.gov/sites/default/files/documents/88-9.pdf Recommendation 88-9]. <br />
<br />
The Executive Order begins with a lengthy “Statement of Regulatory Philosophy and Principles,” which are quite similar to those in Executive Order 12291 except that it specifies that measurement of costs and benefits should include both quantifiable and qualitative measures. As with previous Orders, Executive Order 12866 retains the traditional (since 1978) level of $100 million annual effect on the economy for those major rules (now referred to as “economically significant” rules) that must be accompanied by cost-benefit assessments when forwarded to OIRA as proposed and final rules.<br />
<br />
Executive Order 12866 also retains the OIRA review process for other rules, although it only requires that “significant regulatory actions” be subject to review. This includes those $100 million rules plus others that have material adverse effects on “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” It also includes rules that may materially alter the budgetary impact of benefit programs or the rights of recipients, that raise “novel legal or policy issues,” or are inconsistent or interfere with actions taken by another agency. The process established for identifying such “significant regulatory actions” relies on agency identification of them in the first instance, vetted by OIRA. Rules that are not so identified may be issued without OIRA review. This selectivity streamlined the review process considerably and made it possible to include, for the first time, a deadline (of 90 days, with one 30-day extension allowed) for completion of OIRA review. In the event of an unresolved dispute between OIRA and the agency, the Vice President is directed to make the decision (or recommend one to the President).<br />
<br />
The review process set forth in the Executive Order made significant improvements in transparency. Following an ACUS recommendation closely, it provides that after the agency has concluded its rulemaking it should make available to the public all submissions to OIRA and identify all changes made in the rule, noting those made at the behest of OIRA. In addition, OIRA, for its part, must regularize the way it receives any outside communications concerning an agency rule that is subject to review. Only the Administrator or her designee may receive such communications. OIRA must forward any such communications to the agency within ten days, invite agency officials to any meetings held with outsiders, and maintain a public log of all such contacts. At the end of the proceeding OIRA must also make available all documents exchanged with the agency.<br />
<br />
In place of the Reagan Executive Order 12498 on regulatory planning, the Clinton Order establishes its own yearly planning mechanism. It continues the semiannual publication of the [https://www.reginfo.gov/public/do/eAgendaMain Unified Regulatory Agenda], which lists all proposed, pending, and completed regulatory and deregulatory actions. And it requires that the October Agenda contain each agency’s annual Regulatory Plans, which must be approved personally by the agency head. These plans must be forwarded to OIRA (and then on to affected agencies, the Vice President and a group of named high-level White House Advisors) by June 1 of each year. The plans are supposed to also include agency determinations on which existing rules are to be reviewed and reconsidered during the ensuing year and “preliminary estimates of the anticipated costs and benefits” of each rule planned for that calendar year. These actions do not represent any sharp break from the practices of previous administrations. However, Executive Order 12866 is a departure in one regard—for the first time the independent regulatory agencies are specifically directed to comply with the planning and agenda provisions (though not with the rule-review process).<br />
<br />
The Clinton Executive Order was generally well received by most observers of the regulatory scene. Its basic approach has remained fundamentally unchanged since its issuance, and OIRA has worked out a stable and workable relationship with the agencies in administering it. The once rather vibrant legal and policy debate over the pros and cons of presidential review has gradually evolved into a fairly broad agreement that it is legal and, if properly administered, is essential to effective executive branch management. Nevertheless, there has been some serious criticism of OIRA’s failure to meet the deadlines set in the Order. <br />
<br />
President Clinton also issued a [https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf presidential directive on plain language] and number of other executive orders that remain in effect concerning: environmental justice in minority populations and low-income populations ([https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO12898envjustice.pdf Executive Order 12898]), civil justice reform ([https://www.govinfo.gov/content/pkg/FR-1996-02-07/pdf/96-2755.pdf Executive Order 12988]), protection of children from environmental risks ([https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Executive Order 13045]), federalism ([https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Executive Order 13132]), and consultation with Indian Tribal Governments ([https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Executive Order 13175]).<br />
<br />
President Bush continued the use of Executive Order 12866, although he did make several significant changes. In 2002, he made some small changes in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review], basically removing the Vice President from the process. In January 2007, in Executive Order 13422, [https://www.govinfo.gov/content/pkg/FR-2007-01-23/pdf/07-293.pdf Further Amendment to Executive Order 12866 on Regulatory Planning and Review], he made more fundamental changes. Most significantly he added a requirement that “significant guidance documents” also be reviewed by OIRA in a way similar to significant regulatory actions. He also required that agencies identify in writing specific “market failures” that necessitate a rulemaking, that agency Regulatory Policy Officers be presidential appointees, that these officers must approve the Regulatory Plan, that aggregate costs and benefits for all rules must be included in the Regulatory Plan, and that agencies consider whether to use “formal” (“on the record”) rulemaking for “complex determinations.” However, as mentioned below, President Obama, upon assuming office, revoked the Bush changes and reinstated the original Clinton order. However, by later memorandum, the requirement that significant guidance documents be reviewed by OIRA was reinstated.<br />
<br />
OIRA did issue a [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/pubpress/2001-38-attach.pdf memorandum] in September 2001 putting its own stamp on the Executive Order 12866 process. The memorandum describes the “general principles and procedures that will be applied by OMB in the implementation of Executive Order 12866 and related statutory and executive authority.”<br />
<br />
Significantly, during the Bush Administration, OIRA also announced several new initiatives in its review process. First, it made extensive use of its website to publish its guidelines and other information pertaining to its review process and specific rule reviews. This continues today. Second, it began the practice of issuing public “return letters” that send rules back to the agency for reconsideration, “review letters” that comment on aspects of a particular rule review, and “prompt letters,” which are sent on OMB’s initiative and contain suggestions for new or stronger regulations. While these letters are still posted on [https://www.reginfo.gov/public/do/eoReturnLetters reginfo.gov], the Obama and the Trump Administrations have made little use of this practice. <br />
<br />
More importantly, during the Bush Administration, OMB issued four far-reaching documents affecting the regulatory process that remain in effect today. In 2003 it issued a revised [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf OMB Circular A-4], which provides guidance on the development of regulatory analyses. OMB also issued a more far-reaching and controversial [https://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05-03.pdf Peer Review Bulletin] in December 2004, which requires administrative agencies to conduct a peer review on all “influential regulatory information that the agency intends to disseminate.” Finally, in 2007, OMB issued an important new government-wide [https://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/E7-1066.pdf Bulletin on Good Guidance Practices.] It also (along with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy]) issued a set of [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. In so doing it declined to finalize a Proposed Risk Assessment Bulletin that the two agencies had issued in January 2006, in favor of updating the Clinton Administration’s Principles issued in 1995. Finally, President Bush issued two other executive orders concerning regulations that remain in effect today: (1) analysis of adverse effects on energy supply, distribution, or use ([https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Executive Order 13211]) and (2) proper consideration of small entities in agency rulemaking ([https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Executive Order 13272]). <br />
<br />
===Developments in the Obama Administration===<br />
Shortly after taking office, President Obama revoked the Bush Amendments to Executive Order 12866 and directed the Director of OMB, in consultation with regulatory agencies, to produce a set of recommendations for a new executive order on federal regulatory review within 100 days, followed by an unusual request for public comments on the same subject. Almost 200 public comments were received. <br />
<br />
After about a year of internal consideration, the White House finally settled on its approach to OMB review—basically to reaffirm Executive Order 12866—with Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review] on January 18, 2011. In Section 1(b), the Order stated: “This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.”<br />
<br />
It did contain a few new mandates and points of emphasis. Most notably, agencies were urged (as appropriate and within legal constraints) to (1) consider “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts”; (2) “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”; (3) “provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded”; (4) for proposed rules, provide “an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings”; (5) seek public input from affected persons “[b]efore issuing a notice of proposed rulemaking”; (6) “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice”; (7) “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned”; and (8) “[w]ithin 120 days of the date of this order, . . . develop and submit to [OIRA] a preliminary plan” for periodically reviewing “its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” <br />
<br />
The one action mandate in the new Executive Order was for agencies to develop plans for retrospective review of their existing regulations. On May 26, 2011, the OIRA Administrator announced the results of this effort. On July 11, 2011, President Obama issued Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], which extended the terms of Executive Order 13563 to independent regulatory agencies. On September 15, 2015, President Obama issued Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People]. Noting the value of insights from behavioral science to improve the “effectiveness and efficiency of Government.”<br />
<br />
===Developments in the Trump Administration===<br />
Shortly after taking office, President Trump issued Executive Order 13771, [https://www.govinfo.gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf Reducing Regulation and Controlling Regulatory Costs,] which requires agencies to identify at least two regulations to be repealed for every proposed or promulgated regulation. 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. The order directed the Director of OMB to provide agency heads with guidance addressing the processes for measuring regulatory costs, the costs of existing regulations, what qualifies as new and offsetting regulations, and situations that would require waivers of the order’s requirements. OIRA issued [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs”] to assist agencies in carrying out these requirements.<br />
<br />
President Trump also issued Executive Order 13777, [https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf Enforcing the Regulatory Reform Agenda]. This order requires the head of each agency to designate an official as its Regulatory Reform Officer (RRO) who would implement initiatives and policies including Executive Order 13771, Executive Order 12866, and Section 6 of Executive Order 13563 regarding retrospective review. All agencies must also form a Regulatory Reform Task Force made up of the RRO, the Regulatory Policy Officer, a representative from the central policy office, and three senior agency officials if the agency is listed in 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 901(b)(1)] (the executive departments, EPA, and NASA), which “shall evaluate existing regulations . . . and make recommendations to the agency head regarding their repeal, replacement, or modification.” In making these determinations, the task forces should focus on regulations that (1) “eliminate jobs, or inhibit job creation;” (2) “are outdated, unnecessary, or ineffective;” (3) “impose costs that exceed benefits;” (4) “create serious inconsistency or otherwise interfere with regulatory initiatives and policies;” (5) “are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001, . . . in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or” (6) “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” The Executive Order also requires agency heads to prioritize regulations that the Regulatory Reform Task Force identifies as outdated, unnecessary, or ineffective when implementing regulatory offsets under Executive Order 13771.<br />
<br />
Finally, President Trump issued Executive Order 13783, [https://www.govinfo.gov/content/pkg/FR-2017-03-31/pdf/2017-06576.pdf Promoting Energy Independence and Economic Growth,] which directs agencies to review regulations that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” This order also revoked Executive Order 13653, [https://www.govinfo.gov/content/pkg/FR-2013-11-06/pdf/2013-26785.pdf Preparing the United States for the Impact of Climate Change], and memoranda under the Obama Administration related to climate change.<br />
<br />
===Developments in the Biden Administration===<br />
Within his first two months in office, President Biden rescinded several of President Trump’s executive orders related to the rulemaking process. In addition, President Biden issued a memorandum titled Modernizing Regulatory Review. This memorandum explicitly reaffirms Executive Orders 12,866 and 13,563. Additionally, it directs the OMB Director to work with agencies to produce a set of recommendations that improves and modernizes regulatory review. The memorandum specifies that these recommendations should include concrete suggestions on how the regulatory review process can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Furthermore, the memorandum specifies that the recommendations should, among other actions, include proposed reforms to Circular A-4 to promote these goals; suggest procedures that take into account distributional impacts in regulatory analyses; propose how OIRA can partner with agencies to “explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits”; and determine an appropriate approach to the review of guidance documents.<br />
<br />
==Bibliography==<br />
===Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg33312/pdf/CHRG-110hhrg33312.pdf Amending Executive Order 12866: Good Governance or Regulatory Usurpation?], Hearing Before Subcomm. on Commercial and Admin. Law, H. Comm. of the Judiciary, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg86439/pdf/CHRG-108hhrg86439.pdf How to Improve Regulatory Accounting: Costs, Benefits and Impacts of Federal Regulations], Hearing Before Subcomm. on Energy Policy, Nat. Res. and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004) (statement of John D. Graham, Administrator of OIRA).<br />
*OIRA Insight, Reform, and Accountability Act, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt19/pdf/CRPT-115hrpt19-pt1.pdf H.R. Rep. No. 115-19] (2017).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg20632/pdf/CHRG-114hhrg20632.pdf Assessing the Obama Years: OIRA and Regulatory Impacts on Jobs, Wages and Economic Recovery], Hearing Before Subcomm. On Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2016) ([https://judiciary.house.gov/hearing/assessing-obama-years-oira-regulatory-impacts-jobs-wages-economic-recovery/ video]).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26026/pdf/CHRG-114hhrg26026.pdf Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking], Hearing Before Subcomm. on Health Care, Benefits and Admin. Rules & Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/challenges-facing-oira-ensuring-transparency-effective-rulemaking/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82203/pdf/CHRG-113hhrg82203.pdf Reducing Red Tape: The New OIRA Administrator’s Perspective], Hearing Before H. Comm. on Small Bus., 113th Cong. (2013).<br />
<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on the Costs and Benefits of Regulations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Report to Congress on the Costs and Benefits of Federal Regulations (Sept. 30, 1997). Notice of availability of draft report and request for comments, 62 Fed. Reg. 39352 (July 22, 1997).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport1998.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (January 1999). Notice of availability of draft report and request for comments, 63 Fed. Reg. 44034 (Aug. 17, 1998), extended 63 Fed. Reg. 49935 (Sept. 18, 1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2000fedreg-charts.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (June 2000). Notice of availability of draft report and request for comments, 65 Fed. Reg. 1296 (Jan. 7, 2000); extended 65 Fed. Reg. 4447 (Jan. 27, 2000) and 65 Fed. Reg. 7198 (Feb. 7, 2000).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2001). Notice of availability of draft report and request for comments, 66 Fed. Reg. 22041 (May 2, 2001); extended 66 Fed. Reg. 34963 (July 2, 2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2002). Notice of availability of draft report and request for comments, 67 Fed. Reg. 15014 (Mar. 28, 2002).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (September 2003). Notice of availability of draft report and request for comments, 68 Fed. Reg. 15772 (Apr. 1, 2003).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2004). Notice of availability of draft report and request for comments, 69 Fed. Reg. 7987 (Feb. 20, 2004).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2005). Notice of availability of draft report and request for comments, 70 Fed. Reg. 14735 (Mar. 23, 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2007). Notice of availability of draft report and request for comments, 71 Fed. Reg. 19213 (Apr. 13, 2006).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2008). Notice of availability of draft report and request for comments, 72 Fed. Reg. 11061 (Mar. 12, 2007).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2009). Notice of availability of draft report and request for comments, 73 Fed. Reg. 55169 (Sept. 24, 2008).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Jan. 27, 2010). Notice of availability of draft report and request for comments, 74 Fed. Reg. 48101 (Sept. 21, 2009).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (July 2010). Notice of availability of draft report and request for comments, 75 Fed. Reg. 22630 (Apr. 29, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2011). Notice of availability of draft report and request for comments, 76 Fed. Reg. 18260 (Apr. 1, 2011).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (April 2013). Notice of availability of draft report and request for comments, 77 Fed. Reg. 22003 (Apr. 12, 2012).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (May 2014). Notice of availability of draft report and request for comments, 78 Fed. Reg. 29780 (May. 21, 2013).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 15, 2015). Notice of availability of draft report and request for comments, 72 Fed. Reg. 37776 (July 2, 2014).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Mar. 10, 2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/12/draft_2017_cost_benefit_report.pdf 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Feb. 23, 2018).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Program of the United States Government'' (1987-1988) (and through 1990-91).<br />
*''Report on Executive Order No. 12866'', 59 Fed. Reg. 24276 (May 10, 1994).<br />
*''More Benefits Fewer Burdens—Creating a Regulatory System that Works For the American People'', A Report to the President on the Third Anniversary of Executive Order 12866 (1996).<br />
</div><br />
<br />
===ACUS Documents===<br />
====Recommendations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*88-9 [https://www.acus.gov/sites/default/files/documents/88-9.pdf Presidential Review of Agency Rulemaking]<br />
*93-4 [https://www.acus.gov/sites/default/files/documents/93-4.pdf Improving the Environment for Agency Rulemaking]<br />
*95-3 [https://www.acus.gov/sites/default/files/documents/95-3.pdf Review of Existing Agency Regulations]<br />
*2011-6 [https://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf International Regulatory Cooperation]<br />
*2012-5 [https://www.acus.gov/sites/default/files/Final-Recommendation-2012-5-Improving-Agency-Coordination.pdf Improving Coordination of Related Agency Responsibilities]<br />
*2013-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202013-2%20%28Benefit-Cost%20Analysis%29_0.pdf Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%25202014-5%2520%2528Retrospective%2520Review%2529_1.pdf Retrospective Review of Agency Rules]<br />
*2015-1 [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Recommendation%20FINAL_0.pdf Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2017-3 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-3%20%28Plain%20Language%20in%20Regulatory%20Drafting%29.pdf Plain Language in Regulatory Drafting]<br />
*2017-6 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-6%20%28Learning%20from%20Regulatory%20Experience%29_0.pdf Learning from Regulatory Experience]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
</div><br />
===CRS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Maeve P. Carey, RL32240, ''The Federal Rulemaking Process: An Overview'' (June 17, 2013).<br />
*Maeve P. Carey, R41974, ''Cost-Benefit and Other Analysis Requirements in the Rulemaking Process'' (Dec. 9, 2014).<br />
*Vivian S. Chu & Daniel T. Shedd, R42720, ''Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues'' (Sept. 10, 2012).<br />
*Vivian S. Chu & Daniel T. Shedd, RS20846, ''Executive Orders: Issuance, Modification, and Revocation'' (Apr. 6, 2014).<br />
*Curtis Copeland, RL33862, ''Changes to the OMB Regulatory Review Process by Executive Order 13422'' (Jan. 3, 2008).<br />
*Curtis Copeland, RL32397, ''Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs'' (June 9, 2009).<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/RCED84-62, [https://www.gao.gov/assets/150/141408.pdf Cost-Benefit Analysis Can Be Useful in Assessing Environmental Regulations, Despite Limitations] (1984).<br />
*T-GGD-99-93, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-99-93/pdf/GAOREPORTS-T-GGD-99-93.pdf Federalism: Implementation of Executive Order 12612 in the Rulemaking Process] (1999).<br />
*GAO/T-GGD-99-131, [https://www.gao.gov/assets/110/108000.pdf Federalism: Previous Initiatives Have Had Little Effect on Agency Rulemaking] (1999).<br />
*GAO/ GGD-99-59, [https://www.gao.gov/assets/160/156562.pdf Regulatory Accounting: Analysis of OMB’s Reports on the Costs and Benefits of Federal Regulation] (1999).<br />
*GAO/GGD-94-28, [https://www.gao.gov/assets/220/218925.pdf Regulatory Burden: Recent Studies, Industry Issues, and Agency Initiatives] (1993).<br />
*GAO/GGD-97-2, [https://www.gao.gov/assets/160/155661.pdf Regulatory Burden: Measurement Challenges and Concerns Raised by Selected Companies] (1996).<br />
*GAO/RCED-98-142, [https://www.gao.gov/assets/160/156173.pdf Regulatory Reform: Agencies Could Improve Development, Documentation, and Clarity of Regulatory Economic Analysis] (1998).<br />
*GAO/GGD-98-31, [https://www.gao.gov/assets/230/225071.pdf Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always Clearly Documented] (1998).<br />
*GAO/ PEMD-95-18BR, [https://www.gao.gov/assets/80/78970.pdf Regulatory Reform: Information on Costs, Cost-Effectiveness, and Mandated Deadlines for Regulations] (1995).<br />
*GAO-03-1015, [https://www.gao.gov/assets/240/239832.pdf Regulatory Takings: Implementation of Executive Order on Government Actions Affecting Private Property Use] (2003).<br />
*GAO-03-929, [https://www.gao.gov/assets/160/157476.pdf Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews] (2003).<br />
*GAO-05-289, [https://www.gao.gov/assets/250/247171.pdf Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules] (2005).<br />
*GAO-09-205, [https://www.gao.gov/assets/290/288538.pdf Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews] (2009).<br />
*GAO-13-588, [https://www.gao.gov/assets/660/656488.pdf International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency Guidance] (2013).<br />
*GAO-14-423T, [https://www.gao.gov/assets/670/661540.pdf Federal Rulemaking: Regulatory Review Processes Could Be Enhanced] (2014).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-14-519, [https://www.gao.gov/assets/670/664872.pdf Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses] (2014).<br />
*GAO-14-714, [https://www.gao.gov/assets/670/665745.pdf Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent] (2014).<br />
*GAO-15-368, [https://www.gao.gov/assets/670/669688.pdf Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices] (2015).<br />
*GAO-15-718, [https://www.gao.gov/assets/680/672572.pdf Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees] (2015).<br />
*GAO-16-720, [https://www.gao.gov/assets/680/679518.pdf Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance] (2016).<br />
*GAO-18-22, [https://www.gao.gov/assets/690/687875.pdf Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions] (2017).<br />
*GAO-18-183, [https://www.gao.gov/assets/700/690624.pdf Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance During and at the End of Presidents’ Terms] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Office of Legal Counsel, ''Op. on Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498''.<br />
*Office of Legal Counsel, Memorandum from Larry L. Simms, Acting Assistant Attorney General, [https://www.justice.gov/file/22586/download Proposed Executive Order Entitled “Federal Regulation,”] 5 Op. O.L.C. 59 (1981).<br />
*Council on Envtl. Quality, [https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).<br />
*Envtl. Protection Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/contsetc.pdf The Benefits and Costs of the Clean Air Act, 1970-1990]—Draft Report for Congress (April 1997).<br />
*Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, [https://ws680.nist.gov/publication/get_pdf.cfm?pub_id=200118 Tenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment] (2007).<br />
*Office of the Vice President, ''Creating a Government That Works Better and Costs Less, Improving Regulatory Systems'', National Performance Review (1993).<br />
*Statement #18, [https://www.acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf Improving the Timeliness of OIRA Regulatory Review], 78 Fed. Reg. 76275 (Dec. 17, 2013).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''OIRA Thirtieth Anniversary Conference'', 63 Admin. L. Rev. (special ed.) (2011).<br />
*ABA Section of Admin. Law & Regulatory Practice, [https://www.americanbar.org/content/dam/aba/administrative/administrative_law/Final%20POTUS%20Report%2010-26-16.authcheckdam.pdf Report: Improving the Administrative Process: A Report to the President-Elect of the United] (2016), 69 Admin. L. Rev. 205 (2017).<br />
*Rebecca Adams, ''Regulating the Rule-Makers: John Graham at OIRA'', CQ Weekly 520 (Feb. 23, 2002).<br />
*Joseph E. Aldy, [https://www.acus.gov/sites/default/files/documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy] (Nov. 17, 2014) (report to ACUS).<br />
*Robert A. Anthony, ''Executive Order, OMB Bulletin Focus on Guidances'', 32 Admin. L. & Reg. News 10, Spring 2007.<br />
*William D. Araiza, ''Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking'', 54 Admin. L. Rev. 611 (2002).<br />
*Donald R. Arbuckle, ''Obscure But Powerful: Who Are Those Guys?'', 63 Admin. L. Rev. 131 (special ed.) (2011).<br />
*Nicholas Bagley & Richard L. Revesz, ''Centralized Oversight of the Regulatory State'', 106 Colum. L. Rev. 1260 (2006).<br />
*Stephen J. Balla, Jennifer M. Deets, & Forrest Maltzman, ''Outside Communications and OIRA Review of Agency Regulations'', 63 Admin. L. Rev. 149 (special ed.) (2011).<br />
*Rachel Bayefsky, Note, [https://www.yalelawjournal.org/pdf/1732.Bayefsky.1782_u52fptmb.pdf Dignity as a Value in Agency Cost-Benefit Analysis], 123 Yale L.J. 1732 (2014).<br />
*Josh Blackman, [https://illinoislawreview.org/wp-content/uploads/2018/03/Blackman.pdf Presidential Maladministration], 2018 U. Ill. L. Rev. 397 (2018).<br />
*James F. Blumstein, ''Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues'', 51 Duke L. J. 851 (2001).<br />
*Alexander Bolton, Rachel Augustine Potter, & Sharece Thrower, ''Organizational Capacity, Regulatory Review, and the Limits of Political Control'', 32 J. L. Econ. & Org. 242 (2016).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1490&context=mlr Inside the Administrative State: A Critical Look at the Practice of Presidential Control], 105 Mich. L. Rev. 47 (2006).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1445&context=mlr Legitimacy, Selectivity, and the Disunitary Executive: A Reply to Sally Katzen], 105 Mich. L. Rev. 1511 (2007).<br />
*Harold H. Bruff, ''Presidential Management of Agency Rulemaking'', 57 Geo. Wash. L. Rev. 533 (1989).<br />
*Reeve T. Bull, ''Building a Framework for Governance: Retrospective Review and Rulemaking Petitions'', 67 Admin. L. Rev. 265 (2015).<br />
*Ming H. Chen, ''Administrator-in-Chief: The President and Executive Action in Immigration Law'', 69 Admin. L. Rev. 347 (2017).<br />
*John C. Coates IV, [https://www.yalelawjournal.org/pdf/a.882.Coates.1011_owe353wf.pdf Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications], 124 Yale L.J. 882 (2015).<br />
*Cary Coglianese, [http://yalejreg.com/moving-forward-with-regulatory-lookback/ Moving Forward with Regulatory Lookback], 30 Yale J. on Reg. Online 57 (2013).<br />
*Cary Coglianese, ''The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State'', 69 Admin. L. Rev. 43 (2017).<br />
*Cary Coglianese, [http://www.aulawreview.org/au_law_review/wp-content/uploads/2018/02/02-Coglianese_67AMULREV733.pdf Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel Cole, [https://www.law.ua.edu/pubs/lrarticles/Volume%2064/Issue%201/2%20Cole%2055%20-%2089.pdf Law, Politics, and Cost-Benefit Analysis], 64 Ala. L. Rev. 55 (2012).<br />
*John Conyers, Jr., Henry C. Johnson, Jr., & David N. Cicilline, [http://harvardjol.com/wp-content/uploads/2017/05/HLL201-1.pdf The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration], 54 Harv. J. on Legis. 365 (2017).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Final%20BCA%20Report%204-30-13.pdf Economic Analysis and Independent Regulatory Agencies] (Apr. 30, 2013) (report to ACUS).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Report%20CIRCULATED%20to%20Committees%20on%2010-21-13.pdf Length of Rule Reviews by the Office of Information and Regulatory Affairs] (Oct. 7, 2013) (report to ACUS).<br />
*Curtis Copeland, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2208&context=ulj The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking], 33 Fordham Urb. L.J. 1257 (2006).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Draft%20Report%20041315%20FINAL_0.pdf The Unified Agenda: Proposals for Reform] (Apr. 13, 2015) (report to ACUS).<br />
*Robin Kundis Craig, ''The Bush Administration’s Use and Abuse of Rulemaking. Part I: The Rise of OIRA'', 28 Admin. & Reg. L. News 8 (Summer 2003).<br />
*Stephen Croley, ''White House Review of Agency Rulemaking: An Empirical Investigation'', 70 U. Chi. L. Rev. 821 (2003).<br />
*Nestor M. Davidson &. Ethan J. Lieb, [https://georgetownlawjournal.org/articles/64/regleprudence/pdf Regleprudence—At OIRA and Beyond], 103 Geo. L.J. 259 (2015).<br />
*Christopher C. DeMuth & Douglas H. Ginsburg, ''White House Review of Agency Rulemaking'', 99 Harv. L. Rev. 1075 (1986).<br />
*Christopher DeMuth, ''OIRA at Thirty'', 63 Admin. L. Rev. 15 (special ed.) (2011).<br />
*Caroline DeWitt, Comment, ''The Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review'', 6 Admin. L. J. Am. U. 759 (1993).<br />
*Susan E. Dudley, ''Observations on OIRA’s Thirtieth Anniversary'', 63 Admin. L. Rev. 113 (special ed.) (2011).<br />
*Susan E. Dudley, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1006&context=caselrev Improving Regulatory Accountability: Lessons From the Past and Prospects for the Future], 65 Case W. Res. L. Rev. 1027 (2015).<br />
*E. Donald Elliott, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4231&context=lcp TQM’ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It], 57 Law & Contemp. Probs. 167 (1994).<br />
*Blake Emerson & Cheryl Blake, [https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20Drafting_Final%20Report.pdf Plain Language in Regulatory Drafting] (Dec. 8, 2017) (report to ACUS).<br />
*Jaclyn L. Falk, Comment, [https://cpb-us-w2.wpmucdn.com/usfblogs.usfca.edu/dist/7/272/files/2014/09/The-Behind-Closed-Door-Policy-Executive-Influence-in-the-Environmental-Protection-Agencys-Informal-Rulemaking.pdf The Behind Closed Door Policy: Executive Influence in the Environmental Protection Agency’s Informal Rulemaking], 47 U.S.F. L. Rev. 593 (2013).<br />
*Cynthia R. Farina, ''Undoing the New Deal Through the New Presidentialism'', 22 Harv. J. L. & Pub. Pol’y 227 (1998).<br />
*Scott Farrow, ''Improving Regulatory Performance: Does Executive Office Oversight Matter?'' (2001).<br />
*Arthur Fraas, ''Observations on OIRA’s Policies and Procedures'', 63 Admin. L. Rev. (special ed.) 79 (2011).<br />
*Arthur Fraas & Randall Lutter, ''On the Economic Analysis of Regulations at Independent Regulatory Commissions'', 63 Admin. L. Rev. 213 (special ed.) (2011).<br />
*Jody Freeman & Jim Rossi, [https://www.acus.gov/sites/default/files/documents/Freeman-Rossi-ACUS-Report-5-30-12-PDF.pdf Improving Coordination of Related Agency Responsibilities] (May 30, 2012) (report to ACUS).<br />
*William Funk “Agency Oversight by the Political Branches,” ch. 11 in Section on Administrative Law and Regulatory Practice, ''A Guide to Judicial and Political Review of Federal Agencies'' 259-304 (2d ed. Michael E. Herz, Richard Murphy & Kathryn Watts eds., 2015).<br />
*Margaret Gilhooley, [https://journals.iupui.edu/index.php/inlawrev/article/view/2956/2879 Executive Oversight of Administrative Rulemaking: Disclosing the Impact], 25 Ind. L. Rev. 299 (1991).<br />
*John D. Graham & Cory R. Liu, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_425_Graham_Liu-1.pdf Regulatory and Quasi-Regulatory Activity Without OMB and Cost-Benefit Review], 37 Harv. J.L. & Pub. Pol’y 425 (2014).<br />
*John D. Graham, Paul R. Noe & Elizabeth L. Branch, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2198&context=ulj Managing the Regulatory State: The Experience of the Bush Administration], 33 Fordham Urb. L. J. 953 (2006).<br />
*Wendy L. Gramm, ''Regulatory Review Issues, October 1985–February 1988'', 63 Admin. L. Rev. 27 (special ed.) (2011).<br />
*Abner S. Greene, ''Checks and Balances in an Era of Presidential Lawmaking'', 61 U. Chi. L. Rev. 123 (1994).<br />
*Robert W. Greene, [https://rutgerspolicyjournal.org/sites/jlpp/files/Greene.pdf Improving U.S. Financial Regulation Through OIRA Review & Robust Regulatory Analysis Standards], 14 Rutgers J.L. & Pub. Pol’y 89 (2016).<br />
*Sarah Grimmer, Note, ''Public Controversy Over Peer Review'', 57 Admin. L. Rev. 275 (2005).<br />
*Zachary J. Gubler, [https://www.acus.gov/sites/default/files/documents/ZGubler%20ACUS%20Final%20Report%2811-17%29.pdf Regulatory Experimentation] (Nov. 17, 2017) (report to ACUS).<br />
*Hiba Hafiz, [http://wisconsinlawreview.org/wp-content/uploads/2018/01/Hafiz-Final.pdf Economic Analysis of Labor Regulation], 2017 Wis. L. Rev. 1115 (2017).<br />
*Robert W. Hahn, Risks, ''Costs, and Lives Saved: Getting Better Results From Regulation'', (Oxford Univ. Press & AEI Press, 1996).<br />
*Robert W. Hahn & John A. Hird, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1177&context=yjreg The Costs and Benefits of Regulation: Review and Synthesis], 8 Yale J. on Reg. 233 (1991).<br />
*Lisa Heinzerling, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2202&context=ulj Statutory Interpretation in the Era of OIRA], 33 Fordham Urb. L. J. 1097 (2006).<br />
*Lisa Heinzerling, [https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1741&context=pelr Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House], 31 Pace Envtl. L. Rev. 325 (2014).<br />
*Thomas D. Hopkins, ''The Evolution of OIRA Oversight—CWPS to OIRA'', 63 Admin. L. Rev. 71 (special ed.) (2011).<br />
*Elena Kagan, ''Presidential Administration'', 114 Harv. L. Rev. 2245 (2001).<br />
*Sally Katzen, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1444&context=mlr A Reality Check on an Empirical Study: Comments on “Inside the Administrative State,”] 105 Mich. L. Rev. 1497 (2007).<br />
*Sally Katzen, ''OIRA at Thirty: Reflections and Recommendations'', 63 Admin. L. Rev. 103 (special ed.) (2011).<br />
*Cornelius M. Kerwin & Scott R. Furlong, ''Rulemaking: How Government Agencies Write Law and Make Policy'' (CQ Press, 4th ed. 2011).<br />
*Peter Ketcham-Colwill, [https://www.gwlr.org/wp-content/uploads/2018/02/82-Geo.-Wash.-L.-Rev.-1622.pdf Presidential Influence Over Agency Rulemaking Through Regulatory Review], 82 Geo. Wash. L. Rev. 1622 (2014).<br />
*Robert E. Litan & William D. Nordhaus, ''Reforming Federal Regulation'' (Yale Univ. Press, 1983).<br />
*Michael A. Livermore, [http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/Livermore_Art.pdf Cost-Benefit Analysis and Agency Independence], 81 U. Chi. L. Rev. 609 (2014).<br />
*Michael A. Livermore & Richard L. Revesz, [https://georgetownlawjournal.org/articles/119/regulatory-review-capture-agency/pdf Regulatory Review, Capture, and Agency Inaction], 101 Geo. L.J. 1337 (2013)<br />
*Jeffrey S. Lubbers, ''A Guide to Federal Agency Rulemaking'' (ABA Section of Admin. Law & Regulatory Practice, 5th ed. 2012).<br />
*Jeffrey S. Lubbers, ''OMB to Require Peer Review for Regulatory Science Documents'', 29 Admin. L. & Reg. News 3, Fall 2003.<br />
*Maureen Mahon, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1179&context=law_lawreview Proceed With Caution: The Implications of the OMB Peer Review Guidelines on Precautionary Legislation], 84 Wash. U. L. Rev. 461 (2006).<br />
*Jonathan S. Masur & Eric A. Posner, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4712&context=clr Unquantified Benefits and the Problem of Regulation Under Uncertainty], 102 Cornell L. Rev. 87 (2016).<br />
*Randolph J. May, ''OMB’s Peer Review Proposal—Swamped by Science?'', 29 Admin. & Reg. L. News 4, Spring 2004.<br />
*Michael McCarthy, [https://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91-1] (Oct. 19, 2011) (report to ACUS).<br />
*Thomas O. McGarity, ''Presidential Control of Regulatory Agency Decisionmaking'', 36 Am. U. L. Rev. 443 (1987).<br />
*Thomas O. McGarity, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1538&context=dlj Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age], 61 Duke L.J. 1671 (2012).<br />
*Patrick A. McLaughlin & Jerry Ellig, ''Does OIRA Review Improve the Quality of Regulatory Impact Analysis? Evidence from the Final Year of the Bush II Administration'', 63 Admin. L. Rev. 179 (special ed.) (2011).<br />
*Emily Hammond Meazell, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1539&context=dlj Presidential Control, Expertise, and the Deference Dilemma], 61 Duke L.J. 1763 (2012).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1208&context=articles Disclosing “Political” Oversight of Agency Decision Making], 108 Mich. L. Rev. 1127 (2010).<br />
*Nina Mendelson, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Mendelson_May.pdf Another Word on the President’s Statutory Authority over Agency Action], 79 Fordham L. Rev. 2455 (2011).<br />
*Nina A. Mendelson & Jonathan B. Wiener, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_447_Mendelson_Wiener.pdf Responding to Agency Avoidance of OIRA], 37 Harv. J.L. & Pub. Pol’y 447 (2014).<br />
*Gillian E. Metzger & Kevin M. Stack, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mlr Internal Administrative Law], 115 Mich. L. Rev. 1239 (2017).<br />
*James C. Miller III, ''The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future'', 63 Admin. L. Rev. 93 (special ed.) (2011).<br />
*Alan B. Morrison, ''OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation'', 99 Harv. L. Rev. 1059 (1986).<br />
*William A. Niskanen, ''Clinton Regulation Will Be “Rational”: Interview with Sally Katzen, the New OIRA Administrator'', Regulation Magazine No. 3, at 36 (1993).<br />
*Lars Noah, ''Peer Review and Regulatory Reform'', 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,606 (2000).<br />
*Paul Noe, ''Analyzing the Destruction of Human Capital by Regulations'', 63 Admin. L. Rev. 203 (special ed.) (2011).<br />
*Note, ''Regulatory Analyses and Judicial Review of Informal Rulemaking'', 91 Yale L. J. 739 (1982).<br />
*Note, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol124_%20OIRA%20_avoidance.pdf OIRA Avoidance], 124 Harv. L. Rev. 994 (2011).<br />
*Note, ''The Inflation Impact Statement Program: An Assessment of the First Two Years'', 26 Am. U. L. Rev. 1138 (1977).<br />
*Jennifer Nou, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_nou.pdf Agency Self-Insulation Under Presidential Review], 126 Harv. L. Rev. 1755 (2013).<br />
*Jennifer Nou & Edward H. Stiglitz, [https://southerncalifornialawreview.com/wp-content/uploads/2018/01/89_733.pdf Strategic Rulemaking Disclosure], 89 S. Cal. L. Rev. 733 (2016).<br />
*Anne Joseph O’Connell, [http://www.virginialawreview.org/sites/virginialawreview.org/files/889.pdf Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State], 94 Va. L. Rev. 889 (2008).<br />
*Erik D. Olson, ''The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291'', 4 Va. J. Nat. Resources L. 1 (1984).<br />
*Eloise Pasachoff, [https://www.yalelawjournal.org/pdf/a.2182.Pasachoff.2290_aqo1aub4.pdf The President’s Budget as a Source of Agency Policy Control], 125 Yale L.J. 2182 (2016).<br />
*Robert V. Percival, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1148&context=dlj Presidential Management of the Administrative State: The Not-So-Unitary Executive], 51 Duke L. J. 963 (2001).<br />
*Robert V. Percival, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Percival_May.pdf Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?], 79 Fordham L. Rev. 2487 (2011).<br />
*Richard J. Pierce, Jr., [http://www.nyujlpp.org/wp-content/uploads/2016/06/Pierce-Regulatory-Budget-Debate-19nyujlpp249.pdf The Regulatory Budget Debate], 19 N.Y.U. J. Legis. & Pub. Pol’y 249 (2016).<br />
*Eric A. Posner & E. Glen Weyl, [https://www.yalelawjournal.org/pdf/Posner-WeylPDF_ijby4z9e.pdf Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms], 124 Yale L.J. Forum 246 (2015).<br />
*Robert L. Rabin, ''Federal Regulation in Historical Perspective'', 38 Stan L. Rev. 1189 (1986).<br />
*Richard L. Revesz, [http://yalejreg.com/articlepdfs/34-JREG-545.pdf Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation], 34 Yale J. On Reg. 545 (2017).<br />
*Richard L. Revesz, [http://www.californialawreview.org/wp-content/uploads/2014/12/02-Revesz.pdf Quantifying Regulatory Benefits], 102 Cal. L. Rev. 1423 (2014).<br />
*Richard L. Revesz & Michael A. Livermore, ''Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health'' (Oxford Univ. Press 2008).<br />
*Delissa Ridgway et al., ''The Council on Competitiveness and Regulatory Review: A “Kinder, Gentler” Approach to Regulation?'', 6 Admin. L. J. Am. U. 691 (1993).<br />
*David B. Rivkin, ''The Unitary Executive and Presidential Control of Executive Branch Rulemaking'', 7 Admin. L. J. Am. U. 309 (1993).<br />
*Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291'', 80 Mich. L. Rev. 193 (1981).<br />
*Arden Rowell, [https://www.law.uci.edu/lawreview/vol4/no4/Rowell.pdf Time in Cost-Benefit Analysis], 4 UC Irvine L. Rev. 1215 (2014).<br />
*Susan Rose-Ackerman, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1153&context=umlr Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review], 65 U. Miami L. Rev. 335 (2011).<br />
*Andrew Rudalevige, [http://lawreview.syr.edu/wp-content/uploads/2015/09/G-Rudalevige-For-Website.pdf Old Laws, New Meanings: Obama’s Brand of Presidential “Imperialism”], 66 Syracuse L. Rev. 1 (2016).<br />
*J.B. Ruhl & James Salzman, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1170&context=law_lawreview In Defense of Regulatory Peer Review], 84 Wash. U. L. Rev. 1 (2006).<br />
*Thomas O. Sargentich, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/The-Emphasis-on-the-Presidency-in-U.S.-Public-Law-An-Essay-Critiquing-Presidential-Administration.pdf The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration], 59 Admin. L. Rev. 1 (2007).<br />
*Peter M. Shane, ''Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking'', 48 Ark. L. Rev. 161 (1995).<br />
*David R. Sheaffer, [https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1178&context=lr The Price of Regulation: Rethinking Executive Review of Agency Rulemaking], 2016 Mich. St. L. Rev. 1091 (2016).<br />
*Sidney Shapiro, [https://www.acus.gov/sites/default/files/documents/gov.acus_.1995.rec_.95-3.pdf Agency Review of Existing Regulations] (Jan. 15, 1995) (report to ACUS).<br />
*Sidney A. Shapiro, ''OMB’s Dubious Peer Review Procedures'', 34 Envtl. L. Rep. (Envtl. L. Inst.) 10,064 (2004).<br />
*Sidney A. Shapiro, ''OMB’s Revised Peer Review Bulletin'', 29 Admin. L. & Reg. News 10 (Summer 2004).<br />
*Sidney A. Shapiro & Richard Murphy, [https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Shapiro-Murphy.pdf Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation], 48 U.C. Davis L. Rev. 1457 (2015).<br />
*Sidney A. Shapiro & Ronald F. Wright, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1160&context=umlr The Future of the Administrative Presidency: Turning Administrative Law Inside-Out], 65 U. Miami L. Rev. 577 (2011).<br />
*Stuart Shapiro, ''OIRA Inside and Out'', 63 Admin. L. Rev. 135 (special ed.) (2011).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Stuart Shapiro & Debra Borie-Holtz, ''The Politics of Regulatory Reform'' (Routledge 2013).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS).<br />
*Peter L. Strauss, ''Overseer or “The Decider”? The President in Administrative Law'', 75 Geo. Wash. L. Rev. 696 (2007).<br />
*Peter L. Strauss, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=caselrev The President and the Constitution], 65 Case W. Res. L. Rev. 1151 (2015).<br />
*Peter L. Strauss & Cass R. Sunstein, ''The Role of the President and OMB in Informal Rulemaking'', 38 Admin. L. Rev. 181 (1986).<br />
*Cass R. Sunstein, Simpler: ''The Future of Government'' (Simon & Schuster, 2013).<br />
*Cass R. Sunstein, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_sunstein.pdf The Office of Information and Regulatory Affairs: Myths and Realities], 126 Harv. L. Rev. 1838 (2013).<br />
*Cass R. Sunstein, [http://www.bu.edu/bulawreview/files/2014/08/SUNSTEINDYSFUNCTION.pdf The Regulatory Lookback], 94 B.U. L. Rev. 579 (2014).<br />
*Jim Tozzi, ''OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding'', 63 Admin. L. Rev. 37 (special ed.) (2011).<br />
*Paul R. Verkuil, ''Jawboning Administrative Agencies: Ex Parte Contacts by the White House'', 80 Colum. L. Rev. 943 (1980).<br />
*Christopher J. Walker, ''Modernizing the Administrative Procedure Act'', 69 Admin. L. Rev. 629 (2017).<br />
*Adam L. Warber, ''Executive Orders and the Modern Presidency: Legislating from the Oval Office'' (Lynne Reiner Publishers 2006).<br />
*Kathryn A. Watts, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1240&context=mlr Controlling Presidential Control], 114 Mich. L. Rev. 683 (2016).<br />
*Christopher E. Wilson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Not-Good-Enough-for-Government-Work-How-OMBs-Good-Guidance-Practices-May-Unintentionally-Complicate-Administrative-Law.pdf Comment: Not Good Enough for Government Work: How OMB’s Good Guidance Practices May Unintentionally Complicate Administrative Law], 59 Admin. L. Rev. 177 (2007).<br />
</div><br />
<br />
===Miscellaneous===<br />
<br />
*National Academy of Public Administration, ''Presidential Management of Rulemaking in Regulatory Agencies'' (1987).<br />
*[http://www.thecre.com/ombpapers/featuredarticles.html Center for Regulatory Effectiveness].<br />
*Competitive Enterprise Institute, [https://cei.org/10KC Ten Thousand Commands].</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Rulemaking_Requirements_from_the_Executive_Office_of_the_President&diff=1685Rulemaking Requirements from the Executive Office of the President2023-08-15T21:26:24Z<p>MGluth: </p>
<hr />
<div>This section discusses the most significant presidential Executive Orders, Bulletins, and Memoranda, which pertain to the rulemaking process or federal regulation. Other executive orders and memoranda may be found in other sections, e.g., those relating to the [[Federal Advisory Committee Act]].<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)], [https://www.whitehouse.gov/omb/ Office of Management and Budget (OMB)]<br />
<br />
==Executive Orders==<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Executive Order 12372, [https://www.archives.gov/federal-register/codification/executive-order/12372.html Intergovernmental Review of Federal Programs], 47 Fed. Reg. 30959 (July 16, 1982).<br />
*Executive Order 12630, [https://www.archives.gov/federal-register/codification/executive-order/12630.html Governmental Actions and Interference with Constitutionally Protected Property Rights], 53 Fed. Reg. 8859 (Mar. 18, 1988).<br />
*Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 ( Oct. 4, 1993).<br />
*Executive Order 12889, [https://www.govinfo.gov/content/pkg/WCPD-1994-01-03/pdf/WCPD-1994-01-03-Pg2639.pdf Implementation of the North American Free Trade Agreement], 58 Fed. Reg. 69681 (Dec. 30, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations], 59 Fed. Reg. 7629 (Feb. 16, 1994).<br />
*Executive Order 12988, [https://www.govinfo.gov/content/pkg/WCPD-1996-02-12/pdf/WCPD-1996-02-12-Pg189.pdf Civil Justice Reform], 61 Fed. Reg. 4729 (Feb. 7, 1996).<br />
*Executive Order 13045, [https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Protection of Children from Environmental Health Risks and Safety Risks], 62 Fed. Reg. 19885 (Apr. 23, 1997).<br />
*Executive Order 13132, [https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Federalism], 64 Fed. Reg. 43255 (Aug. 10, 1999).<br />
*Executive Order 13175, [https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
*Executive Order 13211, [https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use], 66 Fed. Reg. 28355 (May 22, 2001).<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 16, 2002).<br />
*Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review], 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming Executive Order 12866).<br />
*Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], 76 Fed. Reg. 41587 (July 14, 2011).<br />
*Executive Order 13609, [https://www.govinfo.gov/content/pkg/FR-2012-05-04/pdf/2012-10968.pdf Promoting International Regulatory Cooperation], 77 Fed. Reg. 26413 (May 4, 2012).<br />
*Executive Order 13610, [https://www.govinfo.gov/content/pkg/FR-2012-05-14/pdf/2012-11798.pdf Identifying and Reducing Regulatory Burdens], 77 Fed. Reg. 28469 (May 14, 2012).<br />
*Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People], 80 Fed. Reg. 56356 (Sept. 18, 2015).<br />
*Executive Order 13725, [https://www.govinfo.gov/content/pkg/FR-2016-04-20/pdf/2016-09346.pdf Steps to Increase Competition and Better Inform Consumers and Works to Support Continued Growth of the American Economy], 81 Fed. Reg. 23417 (Apr. 20, 2016).<br />
*Executive Order 14094, [https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf Modernizing Regulatory Review], 88 Fed. Reg. 21,879 (Apr. 11, 2023).<br />
</div><br />
<br />
==Table of Executive Order Requirements==<br />
{| class="wikitable"<br />
|+<br />
!Executive Order (EO)<br />
!Date and Administration of Issue<br />
!Action Items<br />
!Does the EO Contain a Statement Regarding Applicability to Independent Agencies?<br />
|-<br />
|[https://www.archives.gov/federal-register/codification/executive-order/12630.html EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights]<br />
|1988 - Reagan<br />
|''General Principles''. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” <br />
<br />
<br />
''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.”<br />
<br />
''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.<br />
<br />
<br />
''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).<br />
<br />
<br />
''Ensuring Compliance.'' OMB and the Department of Justice are responsible for ensuring compliance with the EO.<br />
|No<br />
|-<br />
|[https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf EO 12866 - Regulatory Planning and Review]<br />
|1993 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12889.pdf EO 12889 - Implementation of the North American Free Trade Agreement]<br />
|1993 - Clinton<br />
|''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.”<br />
<br />
<br />
''Exceptions''<br />
<br />
#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)).<br />
#Perishable Goods. Technical regulations relating to perishable goods.<br />
#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.<br />
#Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection.<br />
<br />
''Definitions''<br />
<br />
#Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7).<br />
#Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7).<br />
|No<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf EO 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations]<br />
|1994 - Clinton<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1996-02-07/pdf/96-2755.pdf EO 12988 - Civil Justice Reform]<br />
|1996- Clinton<br />
|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.<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks]<br />
|1997 - Clinton<br />
|''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.”<br />
''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:<br />
<br />
#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.”<br />
#Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/pdf/99-20729.pdf EO 13132 - Federalism]<br />
|1999 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf EO 13175 - Consultation and Coordination with Indian Tribal Governments]<br />
|2000 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2001-05-22/pdf/01-13116.pdf EO 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use]<br />
|2001 - Bush<br />
|''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.<br />
<br />
<br />
''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. <br />
<br />
<br />
''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. <br />
<br />
<br />
''Publication.'' Agencies must publish the Statement or a summary in the related NPRM and final rule.<br />
|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 . . . ."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2002-08-16/pdf/02-21056.pdf EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking]<br />
|2002 - Bush<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf EO 13563 - Improving Regulation and Regulatory Review]<br />
|2011 - Obama<br />
|''General Principles.'' This EO supplements and reaffirms [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 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.<br />
<br />
<br />
''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.”<br />
<br />
<br />
''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.”<br />
<br />
<br />
''Flexible Approaches.'' Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.”<br />
<br />
<br />
''Objectivity with regard to scientific information.'' Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking.<br />
<br />
<br />
''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.”<br />
|Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review <nowiki>[EO] 12866</nowiki>]."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf EO 13579 - Regulation and Independent Regulatory Agencies]<br />
|2011 - Obama<br />
|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 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.”<br />
|Yes. The EO is entirely geared toward independent agencies.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-04/pdf/2012-10968.pdf EO 13609 - Promoting International Regulatory Cooperation]<br />
|2012 - Obama<br />
|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.<br />
|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.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf EO 13610 - Identifying and Reducing Regulatory Burdens]<br />
|2012 - Obama<br />
|Agencies are instructed to institutionalize regular reviews of their previously 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.<br />
|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)."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2016-04-20/pdf/2016-09346.pdf EO 13725 - Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy]<br />
|2016 - Obama<br />
|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. <br />
|Yes. See § 3(b) for relevant text: "Independent agencies are strongly encouraged to comply with the requirements of this order."<br />
|-<br />
|EO 14094 - Modernizing Regulatory Review<br />
|2023 - Biden<br />
|Agencies should affirmatively promote public participation in rulemaking and proactively engage interested parties. Regulatory analysis should recognize distributive impacts and equity.<br />
|No.<br />
|}<br />
<br />
==Other White House Bulletins and Memoranda==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-119-1.pdf Federal Participation in the Development and Use of Voluntary Standards and in Conformity Assessment Activities] (1998).<br />
*[https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf Plain Language in Government Writing] (1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/pubpress/2001-38-attach.pdf Presidential Review of Agency Rulemaking by OIRA] (2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf OMB’s Circular No. A-4, New Guidelines for the Conduct of Regulatory Analysis] (2004).<br />
*M-05-03, [https://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05-03.pdf Final Information Quality Bulletin for Peer Review] (2004).<br />
*[https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf Final Bulletin for Agency Good Guidance Practices] (2007).<br />
*M-07-24, [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis](2007).<br />
*M-19-14, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf Guidance on Compliance with the Congressional Review Act] (2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01866.pdf Modernizing Regulatory Review] (2021)<br />
</div><br />
<br />
==Overview==<br />
===History of Presidential Oversight of Rulemaking and Regulation===<br />
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. <br />
<br />
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.<br />
<br />
In 1974, President Ford issued an executive order requiring executive branch agencies to prepare an “inflation impact statement” for each “major” federal action. 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” rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to COWPS upon publication of the NPRM. COWPS would review the IIS and, in its discretion, offer informal criticism of the proposal or participate in the public proceedings on the rule. <br />
<br />
President Carter continued presidential review of agency rules by means of Executive Order 12044, ''Improving Government Regulations'', issued in 1978. Under the order, executive agencies were required to: (1) publish semi-annual agendas, describing and giving the legal bases for, any “significant” regulations under development by the agency; (2) establish procedures to identify “significant” rules, to evaluate their need, and to have the agency head assure that the “least burdensome of the acceptable alternatives” was proposed; and (3) prepare a “regulatory analysis” that examined the cost-effectiveness of alternative regulatory approaches for “major rules.”<br />
<br />
President Carter also established a Regulatory Analysis Review Group to review the regulatory analyses prepared for a limited number of proposed “major” rules and to submit comments on the proposed rules during the public comment period. He created another rulemaking review body, the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. These efforts to coordinate agency rulemaking were challenged unsuccessfully in several lawsuits.<br />
<br />
President Reagan acted quickly after taking office to increase control over executive branch rulemaking. On February 17, 1981, the President issued an executive order on federal regulations designed “to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” The new Executive Order 12291, [https://www.archives.gov/federal-register/codification/executive-order/12291.html Federal Regulation], replaced Executive Order 12044, which President Reagan said had “proven ineffective.” <br />
<br />
Executive Order 12291 contained both substantive requirements and procedural steps to be followed in the development and promulgation of new rules. The [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)] in OMB was given responsibility for implementing Executive Order 12291. OMB’s rulemaking review function is supplemented by the powers it was given in the [[Paperwork Reduction Act]] of 1980, by which Congress statutorily established OIRA to, among other things, review and approve or disapprove agency “information collection requests.”<br />
<br />
The Office of Legal Counsel in the U.S. Department of Justice issued an [https://www.justice.gov/file/22586/download opinion] supporting the validity of Executive Order 12291. The opinion stated that the President’s authority to issue the order was based on his constitutional power to “take care that the laws be faithfully executed.” While concluding that any inquiry into Congressional intent in enacting specific rulemaking statutes “will usually support the legality of presidential supervision of rulemaking by Executive Branch agencies,” the opinion stated that presidential supervision of agency rulemaking “is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official.”<br />
<br />
Despite criticism of this new form of presidential review, President Reagan began his second term by expanding the program through Executive Order 12498, [https://www.archives.gov/federal-register/codification/executive-order/12498.html Regulatory Planning Process], which established a “regulatory planning process” with the purpose of helping to “ensure that each major step in the process of rule development is consistent with Administration policy.” <br />
<br />
According to OMB, the problem with regulatory review under Executive Order 12291 was that such review “often came late in the regulatory process, after huge investments of agency time and resources, and often after agency staff commitments to constituents had made it extremely difficult to consider any legally acceptable, but previously ignored, regulatory alternative.” This resulted, OMB said, in the “bureaucracy often present[ing] agency heads with faits accompli.” <br />
<br />
Executive Order 12498’s regulatory planning process was designed to avoid this problem. Under this procedure, the head of each agency was required to determine at the beginning of the regulatory process whether a proposed regulatory venture was “consistent with the goals of the Administration.” At the beginning of the year, Agency heads were to develop a plan for managing the agency’s most significant regulatory actions. OMB then reviewed the plan for consistency with the administration’s program and published the coordinated agency plans in a government-wide document. This document, entitled “Regulatory Program of the United States Government,” governed more than 20 major rulemaking agencies and was published each year during the second Reagan term and the Bush administration to inform Congress and the public of the government’s regulatory plans.<br />
<br />
President Reagan, in 1987 and 1988, issued three additional executive orders, dealing with federalism, interference with property rights (which is still in effect), and the family. OMB was given a role in ensuring coordination of regulatory policy in these areas. President Bush basically continued the program of presidential review of agency rulemaking established by President Reagan, although due to congressional opposition to OIRA actions, President Bush’s nominee to head OIRA was not confirmed. To counter this weakening of OIRA’s authority, President Bush created the Council on Competitiveness, headed by Vice President Quayle, and gave it authority to intervene in major agency rulemakings. Several of the Council’s interventions provoked intense criticisms leading up to the 1992 elections.<br />
<br />
===The Clinton Executive Order—Executive Order 12866===<br />
With the election of President Clinton, one of his first actions was an attempt to reestablish some bipartisan consensus on rulemaking review. His nominee as OIRA Administrator was the first subcabinet nominee to be appointed. Following the example of the Reagan Administration, President Clinton then set out to redraft the extant Executive Order and produced Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], on September 30, 1993. This Executive Order, which remains operative, carries over many of the principles of Executive Order 12291 and Executive Order 12498 and made some significant modifications that simplified the process, made it more selective, and introduced more transparency into the OMB/agency consultations. In drafting this Executive Order, the Clinton Administration followed many of the suggestions in ACUS [https://www.acus.gov/sites/default/files/documents/88-9.pdf Recommendation 88-9]. <br />
<br />
The Executive Order begins with a lengthy “Statement of Regulatory Philosophy and Principles,” which are quite similar to those in Executive Order 12291 except that it specifies that measurement of costs and benefits should include both quantifiable and qualitative measures. As with previous Orders, Executive Order 12866 retains the traditional (since 1978) level of $100 million annual effect on the economy for those major rules (now referred to as “economically significant” rules) that must be accompanied by cost-benefit assessments when forwarded to OIRA as proposed and final rules.<br />
<br />
Executive Order 12866 also retains the OIRA review process for other rules, although it only requires that “significant regulatory actions” be subject to review. This includes those $100 million rules plus others that have material adverse effects on “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” It also includes rules that may materially alter the budgetary impact of benefit programs or the rights of recipients, that raise “novel legal or policy issues,” or are inconsistent or interfere with actions taken by another agency. The process established for identifying such “significant regulatory actions” relies on agency identification of them in the first instance, vetted by OIRA. Rules that are not so identified may be issued without OIRA review. This selectivity streamlined the review process considerably and made it possible to include, for the first time, a deadline (of 90 days, with one 30-day extension allowed) for completion of OIRA review. In the event of an unresolved dispute between OIRA and the agency, the Vice President is directed to make the decision (or recommend one to the President).<br />
<br />
The review process set forth in the Executive Order made significant improvements in transparency. Following an ACUS recommendation closely, it provides that after the agency has concluded its rulemaking it should make available to the public all submissions to OIRA and identify all changes made in the rule, noting those made at the behest of OIRA. In addition, OIRA, for its part, must regularize the way it receives any outside communications concerning an agency rule that is subject to review. Only the Administrator or her designee may receive such communications. OIRA must forward any such communications to the agency within ten days, invite agency officials to any meetings held with outsiders, and maintain a public log of all such contacts. At the end of the proceeding OIRA must also make available all documents exchanged with the agency.<br />
<br />
In place of the Reagan Executive Order 12498 on regulatory planning, the Clinton Order establishes its own yearly planning mechanism. It continues the semiannual publication of the [https://www.reginfo.gov/public/do/eAgendaMain Unified Regulatory Agenda], which lists all proposed, pending, and completed regulatory and deregulatory actions. And it requires that the October Agenda contain each agency’s annual Regulatory Plans, which must be approved personally by the agency head. These plans must be forwarded to OIRA (and then on to affected agencies, the Vice President and a group of named high-level White House Advisors) by June 1 of each year. The plans are supposed to also include agency determinations on which existing rules are to be reviewed and reconsidered during the ensuing year and “preliminary estimates of the anticipated costs and benefits” of each rule planned for that calendar year. These actions do not represent any sharp break from the practices of previous administrations. However, Executive Order 12866 is a departure in one regard—for the first time the independent regulatory agencies are specifically directed to comply with the planning and agenda provisions (though not with the rule-review process).<br />
<br />
The Clinton Executive Order was generally well received by most observers of the regulatory scene. Its basic approach has remained fundamentally unchanged since its issuance, and OIRA has worked out a stable and workable relationship with the agencies in administering it. The once rather vibrant legal and policy debate over the pros and cons of presidential review has gradually evolved into a fairly broad agreement that it is legal and, if properly administered, is essential to effective executive branch management. Nevertheless, there has been some serious criticism of OIRA’s failure to meet the deadlines set in the Order. <br />
<br />
President Clinton also issued a [https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf presidential directive on plain language] and number of other executive orders that remain in effect concerning: environmental justice in minority populations and low-income populations ([https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO12898envjustice.pdf Executive Order 12898]), civil justice reform ([https://www.govinfo.gov/content/pkg/FR-1996-02-07/pdf/96-2755.pdf Executive Order 12988]), protection of children from environmental risks ([https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Executive Order 13045]), federalism ([https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Executive Order 13132]), and consultation with Indian Tribal Governments ([https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Executive Order 13175]).<br />
<br />
President Bush continued the use of Executive Order 12866, although he did make several significant changes. In 2002, he made some small changes in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review], basically removing the Vice President from the process. In January 2007, in Executive Order 13422, [https://www.govinfo.gov/content/pkg/FR-2007-01-23/pdf/07-293.pdf Further Amendment to Executive Order 12866 on Regulatory Planning and Review], he made more fundamental changes. Most significantly he added a requirement that “significant guidance documents” also be reviewed by OIRA in a way similar to significant regulatory actions. He also required that agencies identify in writing specific “market failures” that necessitate a rulemaking, that agency Regulatory Policy Officers be presidential appointees, that these officers must approve the Regulatory Plan, that aggregate costs and benefits for all rules must be included in the Regulatory Plan, and that agencies consider whether to use “formal” (“on the record”) rulemaking for “complex determinations.” However, as mentioned below, President Obama, upon assuming office, revoked the Bush changes and reinstated the original Clinton order. However, by later memorandum, the requirement that significant guidance documents be reviewed by OIRA was reinstated.<br />
<br />
OIRA did issue a [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/pubpress/2001-38-attach.pdf memorandum] in September 2001 putting its own stamp on the Executive Order 12866 process. The memorandum describes the “general principles and procedures that will be applied by OMB in the implementation of Executive Order 12866 and related statutory and executive authority.”<br />
<br />
Significantly, during the Bush Administration, OIRA also announced several new initiatives in its review process. First, it made extensive use of its website to publish its guidelines and other information pertaining to its review process and specific rule reviews. This continues today. Second, it began the practice of issuing public “return letters” that send rules back to the agency for reconsideration, “review letters” that comment on aspects of a particular rule review, and “prompt letters,” which are sent on OMB’s initiative and contain suggestions for new or stronger regulations. While these letters are still posted on [https://www.reginfo.gov/public/do/eoReturnLetters reginfo.gov], the Obama and the Trump Administrations have made little use of this practice. <br />
<br />
More importantly, during the Bush Administration, OMB issued four far-reaching documents affecting the regulatory process that remain in effect today. In 2003 it issued a revised [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf OMB Circular A-4], which provides guidance on the development of regulatory analyses. OMB also issued a more far-reaching and controversial [https://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05-03.pdf Peer Review Bulletin] in December 2004, which requires administrative agencies to conduct a peer review on all “influential regulatory information that the agency intends to disseminate.” Finally, in 2007, OMB issued an important new government-wide [https://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/E7-1066.pdf Bulletin on Good Guidance Practices.] It also (along with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy]) issued a set of [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. In so doing it declined to finalize a Proposed Risk Assessment Bulletin that the two agencies had issued in January 2006, in favor of updating the Clinton Administration’s Principles issued in 1995. Finally, President Bush issued two other executive orders concerning regulations that remain in effect today: (1) analysis of adverse effects on energy supply, distribution, or use ([https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Executive Order 13211]) and (2) proper consideration of small entities in agency rulemaking ([https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Executive Order 13272]). <br />
<br />
===Developments in the Obama Administration===<br />
Shortly after taking office, President Obama revoked the Bush Amendments to Executive Order 12866 and directed the Director of OMB, in consultation with regulatory agencies, to produce a set of recommendations for a new executive order on federal regulatory review within 100 days, followed by an unusual request for public comments on the same subject. Almost 200 public comments were received. <br />
<br />
After about a year of internal consideration, the White House finally settled on its approach to OMB review—basically to reaffirm Executive Order 12866—with Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review] on January 18, 2011. In Section 1(b), the Order stated: “This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.”<br />
<br />
It did contain a few new mandates and points of emphasis. Most notably, agencies were urged (as appropriate and within legal constraints) to (1) consider “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts”; (2) “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”; (3) “provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded”; (4) for proposed rules, provide “an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings”; (5) seek public input from affected persons “[b]efore issuing a notice of proposed rulemaking”; (6) “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice”; (7) “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned”; and (8) “[w]ithin 120 days of the date of this order, . . . develop and submit to [OIRA] a preliminary plan” for periodically reviewing “its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” <br />
<br />
The one action mandate in the new Executive Order was for agencies to develop plans for retrospective review of their existing regulations. On May 26, 2011, the OIRA Administrator announced the results of this effort. On July 11, 2011, President Obama issued Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], which extended the terms of Executive Order 13563 to independent regulatory agencies. On September 15, 2015, President Obama issued Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People]. Noting the value of insights from behavioral science to improve the “effectiveness and efficiency of Government.”<br />
<br />
===Developments in the Trump Administration===<br />
Shortly after taking office, President Trump issued Executive Order 13771, [https://www.govinfo.gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf Reducing Regulation and Controlling Regulatory Costs,] which requires agencies to identify at least two regulations to be repealed for every proposed or promulgated regulation. 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. The order directed the Director of OMB to provide agency heads with guidance addressing the processes for measuring regulatory costs, the costs of existing regulations, what qualifies as new and offsetting regulations, and situations that would require waivers of the order’s requirements. OIRA issued [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs”] to assist agencies in carrying out these requirements.<br />
<br />
President Trump also issued Executive Order 13777, [https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf Enforcing the Regulatory Reform Agenda]. This order requires the head of each agency to designate an official as its Regulatory Reform Officer (RRO) who would implement initiatives and policies including Executive Order 13771, Executive Order 12866, and Section 6 of Executive Order 13563 regarding retrospective review. All agencies must also form a Regulatory Reform Task Force made up of the RRO, the Regulatory Policy Officer, a representative from the central policy office, and three senior agency officials if the agency is listed in 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 901(b)(1)] (the executive departments, EPA, and NASA), which “shall evaluate existing regulations . . . and make recommendations to the agency head regarding their repeal, replacement, or modification.” In making these determinations, the task forces should focus on regulations that (1) “eliminate jobs, or inhibit job creation;” (2) “are outdated, unnecessary, or ineffective;” (3) “impose costs that exceed benefits;” (4) “create serious inconsistency or otherwise interfere with regulatory initiatives and policies;” (5) “are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001, . . . in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or” (6) “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” The Executive Order also requires agency heads to prioritize regulations that the Regulatory Reform Task Force identifies as outdated, unnecessary, or ineffective when implementing regulatory offsets under Executive Order 13771.<br />
<br />
Finally, President Trump issued Executive Order 13783, [https://www.govinfo.gov/content/pkg/FR-2017-03-31/pdf/2017-06576.pdf Promoting Energy Independence and Economic Growth,] which directs agencies to review regulations that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” This order also revoked Executive Order 13653, [https://www.govinfo.gov/content/pkg/FR-2013-11-06/pdf/2013-26785.pdf Preparing the United States for the Impact of Climate Change], and memoranda under the Obama Administration related to climate change.<br />
<br />
===Developments in the Biden Administration===<br />
Within his first two months in office, President Biden rescinded several of President Trump’s executive orders related to the rulemaking process. In addition, President Biden issued a memorandum titled Modernizing Regulatory Review. This memorandum explicitly reaffirms Executive Orders 12,866 and 13,563. Additionally, it directs the OMB Director to work with agencies to produce a set of recommendations that improves and modernizes regulatory review. The memorandum specifies that these recommendations should include concrete suggestions on how the regulatory review process can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Furthermore, the memorandum specifies that the recommendations should, among other actions, include proposed reforms to Circular A-4 to promote these goals; suggest procedures that take into account distributional impacts in regulatory analyses; propose how OIRA can partner with agencies to “explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits”; and determine an appropriate approach to the review of guidance documents.<br />
<br />
==Bibliography==<br />
===Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg33312/pdf/CHRG-110hhrg33312.pdf Amending Executive Order 12866: Good Governance or Regulatory Usurpation?], Hearing Before Subcomm. on Commercial and Admin. Law, H. Comm. of the Judiciary, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg86439/pdf/CHRG-108hhrg86439.pdf How to Improve Regulatory Accounting: Costs, Benefits and Impacts of Federal Regulations], Hearing Before Subcomm. on Energy Policy, Nat. Res. and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004) (statement of John D. Graham, Administrator of OIRA).<br />
*OIRA Insight, Reform, and Accountability Act, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt19/pdf/CRPT-115hrpt19-pt1.pdf H.R. Rep. No. 115-19] (2017).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg20632/pdf/CHRG-114hhrg20632.pdf Assessing the Obama Years: OIRA and Regulatory Impacts on Jobs, Wages and Economic Recovery], Hearing Before Subcomm. On Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2016) ([https://judiciary.house.gov/hearing/assessing-obama-years-oira-regulatory-impacts-jobs-wages-economic-recovery/ video]).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26026/pdf/CHRG-114hhrg26026.pdf Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking], Hearing Before Subcomm. on Health Care, Benefits and Admin. Rules & Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/challenges-facing-oira-ensuring-transparency-effective-rulemaking/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82203/pdf/CHRG-113hhrg82203.pdf Reducing Red Tape: The New OIRA Administrator’s Perspective], Hearing Before H. Comm. on Small Bus., 113th Cong. (2013).<br />
<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on the Costs and Benefits of Regulations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Report to Congress on the Costs and Benefits of Federal Regulations (Sept. 30, 1997). Notice of availability of draft report and request for comments, 62 Fed. Reg. 39352 (July 22, 1997).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport1998.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (January 1999). Notice of availability of draft report and request for comments, 63 Fed. Reg. 44034 (Aug. 17, 1998), extended 63 Fed. Reg. 49935 (Sept. 18, 1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2000fedreg-charts.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (June 2000). Notice of availability of draft report and request for comments, 65 Fed. Reg. 1296 (Jan. 7, 2000); extended 65 Fed. Reg. 4447 (Jan. 27, 2000) and 65 Fed. Reg. 7198 (Feb. 7, 2000).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2001). Notice of availability of draft report and request for comments, 66 Fed. Reg. 22041 (May 2, 2001); extended 66 Fed. Reg. 34963 (July 2, 2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2002). Notice of availability of draft report and request for comments, 67 Fed. Reg. 15014 (Mar. 28, 2002).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (September 2003). Notice of availability of draft report and request for comments, 68 Fed. Reg. 15772 (Apr. 1, 2003).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2004). Notice of availability of draft report and request for comments, 69 Fed. Reg. 7987 (Feb. 20, 2004).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2005). Notice of availability of draft report and request for comments, 70 Fed. Reg. 14735 (Mar. 23, 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2007). Notice of availability of draft report and request for comments, 71 Fed. Reg. 19213 (Apr. 13, 2006).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2008). Notice of availability of draft report and request for comments, 72 Fed. Reg. 11061 (Mar. 12, 2007).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2009). Notice of availability of draft report and request for comments, 73 Fed. Reg. 55169 (Sept. 24, 2008).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Jan. 27, 2010). Notice of availability of draft report and request for comments, 74 Fed. Reg. 48101 (Sept. 21, 2009).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (July 2010). Notice of availability of draft report and request for comments, 75 Fed. Reg. 22630 (Apr. 29, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2011). Notice of availability of draft report and request for comments, 76 Fed. Reg. 18260 (Apr. 1, 2011).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (April 2013). Notice of availability of draft report and request for comments, 77 Fed. Reg. 22003 (Apr. 12, 2012).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (May 2014). Notice of availability of draft report and request for comments, 78 Fed. Reg. 29780 (May. 21, 2013).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 15, 2015). Notice of availability of draft report and request for comments, 72 Fed. Reg. 37776 (July 2, 2014).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Mar. 10, 2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/12/draft_2017_cost_benefit_report.pdf 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Feb. 23, 2018).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Program of the United States Government'' (1987-1988) (and through 1990-91).<br />
*''Report on Executive Order No. 12866'', 59 Fed. Reg. 24276 (May 10, 1994).<br />
*''More Benefits Fewer Burdens—Creating a Regulatory System that Works For the American People'', A Report to the President on the Third Anniversary of Executive Order 12866 (1996).<br />
</div><br />
<br />
===ACUS Documents===<br />
====Recommendations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*88-9 [https://www.acus.gov/sites/default/files/documents/88-9.pdf Presidential Review of Agency Rulemaking]<br />
*93-4 [https://www.acus.gov/sites/default/files/documents/93-4.pdf Improving the Environment for Agency Rulemaking]<br />
*95-3 [https://www.acus.gov/sites/default/files/documents/95-3.pdf Review of Existing Agency Regulations]<br />
*2011-6 [https://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf International Regulatory Cooperation]<br />
*2012-5 [https://www.acus.gov/sites/default/files/Final-Recommendation-2012-5-Improving-Agency-Coordination.pdf Improving Coordination of Related Agency Responsibilities]<br />
*2013-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202013-2%20%28Benefit-Cost%20Analysis%29_0.pdf Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%25202014-5%2520%2528Retrospective%2520Review%2529_1.pdf Retrospective Review of Agency Rules]<br />
*2015-1 [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Recommendation%20FINAL_0.pdf Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2017-3 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-3%20%28Plain%20Language%20in%20Regulatory%20Drafting%29.pdf Plain Language in Regulatory Drafting]<br />
*2017-6 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-6%20%28Learning%20from%20Regulatory%20Experience%29_0.pdf Learning from Regulatory Experience]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
</div><br />
===CRS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Maeve P. Carey, RL32240, ''The Federal Rulemaking Process: An Overview'' (June 17, 2013).<br />
*Maeve P. Carey, R41974, ''Cost-Benefit and Other Analysis Requirements in the Rulemaking Process'' (Dec. 9, 2014).<br />
*Vivian S. Chu & Daniel T. Shedd, R42720, ''Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues'' (Sept. 10, 2012).<br />
*Vivian S. Chu & Daniel T. Shedd, RS20846, ''Executive Orders: Issuance, Modification, and Revocation'' (Apr. 6, 2014).<br />
*Curtis Copeland, RL33862, ''Changes to the OMB Regulatory Review Process by Executive Order 13422'' (Jan. 3, 2008).<br />
*Curtis Copeland, RL32397, ''Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs'' (June 9, 2009).<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/RCED84-62, [https://www.gao.gov/assets/150/141408.pdf Cost-Benefit Analysis Can Be Useful in Assessing Environmental Regulations, Despite Limitations] (1984).<br />
*T-GGD-99-93, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-99-93/pdf/GAOREPORTS-T-GGD-99-93.pdf Federalism: Implementation of Executive Order 12612 in the Rulemaking Process] (1999).<br />
*GAO/T-GGD-99-131, [https://www.gao.gov/assets/110/108000.pdf Federalism: Previous Initiatives Have Had Little Effect on Agency Rulemaking] (1999).<br />
*GAO/ GGD-99-59, [https://www.gao.gov/assets/160/156562.pdf Regulatory Accounting: Analysis of OMB’s Reports on the Costs and Benefits of Federal Regulation] (1999).<br />
*GAO/GGD-94-28, [https://www.gao.gov/assets/220/218925.pdf Regulatory Burden: Recent Studies, Industry Issues, and Agency Initiatives] (1993).<br />
*GAO/GGD-97-2, [https://www.gao.gov/assets/160/155661.pdf Regulatory Burden: Measurement Challenges and Concerns Raised by Selected Companies] (1996).<br />
*GAO/RCED-98-142, [https://www.gao.gov/assets/160/156173.pdf Regulatory Reform: Agencies Could Improve Development, Documentation, and Clarity of Regulatory Economic Analysis] (1998).<br />
*GAO/GGD-98-31, [https://www.gao.gov/assets/230/225071.pdf Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always Clearly Documented] (1998).<br />
*GAO/ PEMD-95-18BR, [https://www.gao.gov/assets/80/78970.pdf Regulatory Reform: Information on Costs, Cost-Effectiveness, and Mandated Deadlines for Regulations] (1995).<br />
*GAO-03-1015, [https://www.gao.gov/assets/240/239832.pdf Regulatory Takings: Implementation of Executive Order on Government Actions Affecting Private Property Use] (2003).<br />
*GAO-03-929, [https://www.gao.gov/assets/160/157476.pdf Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews] (2003).<br />
*GAO-05-289, [https://www.gao.gov/assets/250/247171.pdf Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules] (2005).<br />
*GAO-09-205, [https://www.gao.gov/assets/290/288538.pdf Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews] (2009).<br />
*GAO-13-588, [https://www.gao.gov/assets/660/656488.pdf International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency Guidance] (2013).<br />
*GAO-14-423T, [https://www.gao.gov/assets/670/661540.pdf Federal Rulemaking: Regulatory Review Processes Could Be Enhanced] (2014).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-14-519, [https://www.gao.gov/assets/670/664872.pdf Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses] (2014).<br />
*GAO-14-714, [https://www.gao.gov/assets/670/665745.pdf Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent] (2014).<br />
*GAO-15-368, [https://www.gao.gov/assets/670/669688.pdf Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices] (2015).<br />
*GAO-15-718, [https://www.gao.gov/assets/680/672572.pdf Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees] (2015).<br />
*GAO-16-720, [https://www.gao.gov/assets/680/679518.pdf Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance] (2016).<br />
*GAO-18-22, [https://www.gao.gov/assets/690/687875.pdf Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions] (2017).<br />
*GAO-18-183, [https://www.gao.gov/assets/700/690624.pdf Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance During and at the End of Presidents’ Terms] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Office of Legal Counsel, ''Op. on Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498''.<br />
*Office of Legal Counsel, Memorandum from Larry L. Simms, Acting Assistant Attorney General, [https://www.justice.gov/file/22586/download Proposed Executive Order Entitled “Federal Regulation,”] 5 Op. O.L.C. 59 (1981).<br />
*Council on Envtl. Quality, [https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).<br />
*Envtl. Protection Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/contsetc.pdf The Benefits and Costs of the Clean Air Act, 1970-1990]—Draft Report for Congress (April 1997).<br />
*Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, [https://ws680.nist.gov/publication/get_pdf.cfm?pub_id=200118 Tenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment] (2007).<br />
*Office of the Vice President, ''Creating a Government That Works Better and Costs Less, Improving Regulatory Systems'', National Performance Review (1993).<br />
*Statement #18, [https://www.acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf Improving the Timeliness of OIRA Regulatory Review], 78 Fed. Reg. 76275 (Dec. 17, 2013).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''OIRA Thirtieth Anniversary Conference'', 63 Admin. L. Rev. (special ed.) (2011).<br />
*ABA Section of Admin. Law & Regulatory Practice, [https://www.americanbar.org/content/dam/aba/administrative/administrative_law/Final%20POTUS%20Report%2010-26-16.authcheckdam.pdf Report: Improving the Administrative Process: A Report to the President-Elect of the United] (2016), 69 Admin. L. Rev. 205 (2017).<br />
*Rebecca Adams, ''Regulating the Rule-Makers: John Graham at OIRA'', CQ Weekly 520 (Feb. 23, 2002).<br />
*Joseph E. Aldy, [https://www.acus.gov/sites/default/files/documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy] (Nov. 17, 2014) (report to ACUS).<br />
*Robert A. Anthony, ''Executive Order, OMB Bulletin Focus on Guidances'', 32 Admin. L. & Reg. News 10, Spring 2007.<br />
*William D. Araiza, ''Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking'', 54 Admin. L. Rev. 611 (2002).<br />
*Donald R. Arbuckle, ''Obscure But Powerful: Who Are Those Guys?'', 63 Admin. L. Rev. 131 (special ed.) (2011).<br />
*Nicholas Bagley & Richard L. Revesz, ''Centralized Oversight of the Regulatory State'', 106 Colum. L. Rev. 1260 (2006).<br />
*Stephen J. Balla, Jennifer M. Deets, & Forrest Maltzman, ''Outside Communications and OIRA Review of Agency Regulations'', 63 Admin. L. Rev. 149 (special ed.) (2011).<br />
*Rachel Bayefsky, Note, [https://www.yalelawjournal.org/pdf/1732.Bayefsky.1782_u52fptmb.pdf Dignity as a Value in Agency Cost-Benefit Analysis], 123 Yale L.J. 1732 (2014).<br />
*Josh Blackman, [https://illinoislawreview.org/wp-content/uploads/2018/03/Blackman.pdf Presidential Maladministration], 2018 U. Ill. L. Rev. 397 (2018).<br />
*James F. Blumstein, ''Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues'', 51 Duke L. J. 851 (2001).<br />
*Alexander Bolton, Rachel Augustine Potter, & Sharece Thrower, ''Organizational Capacity, Regulatory Review, and the Limits of Political Control'', 32 J. L. Econ. & Org. 242 (2016).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1490&context=mlr Inside the Administrative State: A Critical Look at the Practice of Presidential Control], 105 Mich. L. Rev. 47 (2006).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1445&context=mlr Legitimacy, Selectivity, and the Disunitary Executive: A Reply to Sally Katzen], 105 Mich. L. Rev. 1511 (2007).<br />
*Harold H. Bruff, ''Presidential Management of Agency Rulemaking'', 57 Geo. Wash. L. Rev. 533 (1989).<br />
*Reeve T. Bull, ''Building a Framework for Governance: Retrospective Review and Rulemaking Petitions'', 67 Admin. L. Rev. 265 (2015).<br />
*Ming H. Chen, ''Administrator-in-Chief: The President and Executive Action in Immigration Law'', 69 Admin. L. Rev. 347 (2017).<br />
*John C. Coates IV, [https://www.yalelawjournal.org/pdf/a.882.Coates.1011_owe353wf.pdf Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications], 124 Yale L.J. 882 (2015).<br />
*Cary Coglianese, [http://yalejreg.com/moving-forward-with-regulatory-lookback/ Moving Forward with Regulatory Lookback], 30 Yale J. on Reg. Online 57 (2013).<br />
*Cary Coglianese, ''The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State'', 69 Admin. L. Rev. 43 (2017).<br />
*Cary Coglianese, [http://www.aulawreview.org/au_law_review/wp-content/uploads/2018/02/02-Coglianese_67AMULREV733.pdf Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel Cole, [https://www.law.ua.edu/pubs/lrarticles/Volume%2064/Issue%201/2%20Cole%2055%20-%2089.pdf Law, Politics, and Cost-Benefit Analysis], 64 Ala. L. Rev. 55 (2012).<br />
*John Conyers, Jr., Henry C. Johnson, Jr., & David N. Cicilline, [http://harvardjol.com/wp-content/uploads/2017/05/HLL201-1.pdf The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration], 54 Harv. J. on Legis. 365 (2017).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Final%20BCA%20Report%204-30-13.pdf Economic Analysis and Independent Regulatory Agencies] (Apr. 30, 2013) (report to ACUS).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Report%20CIRCULATED%20to%20Committees%20on%2010-21-13.pdf Length of Rule Reviews by the Office of Information and Regulatory Affairs] (Oct. 7, 2013) (report to ACUS).<br />
*Curtis Copeland, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2208&context=ulj The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking], 33 Fordham Urb. L.J. 1257 (2006).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Draft%20Report%20041315%20FINAL_0.pdf The Unified Agenda: Proposals for Reform] (Apr. 13, 2015) (report to ACUS).<br />
*Robin Kundis Craig, ''The Bush Administration’s Use and Abuse of Rulemaking. Part I: The Rise of OIRA'', 28 Admin. & Reg. L. News 8 (Summer 2003).<br />
*Stephen Croley, ''White House Review of Agency Rulemaking: An Empirical Investigation'', 70 U. Chi. L. Rev. 821 (2003).<br />
*Nestor M. Davidson &. Ethan J. Lieb, [https://georgetownlawjournal.org/articles/64/regleprudence/pdf Regleprudence—At OIRA and Beyond], 103 Geo. L.J. 259 (2015).<br />
*Christopher C. DeMuth & Douglas H. Ginsburg, ''White House Review of Agency Rulemaking'', 99 Harv. L. Rev. 1075 (1986).<br />
*Christopher DeMuth, ''OIRA at Thirty'', 63 Admin. L. Rev. 15 (special ed.) (2011).<br />
*Caroline DeWitt, Comment, ''The Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review'', 6 Admin. L. J. Am. U. 759 (1993).<br />
*Susan E. Dudley, ''Observations on OIRA’s Thirtieth Anniversary'', 63 Admin. L. Rev. 113 (special ed.) (2011).<br />
*Susan E. Dudley, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1006&context=caselrev Improving Regulatory Accountability: Lessons From the Past and Prospects for the Future], 65 Case W. Res. L. Rev. 1027 (2015).<br />
*E. Donald Elliott, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4231&context=lcp TQM’ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It], 57 Law & Contemp. Probs. 167 (1994).<br />
*Blake Emerson & Cheryl Blake, [https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20Drafting_Final%20Report.pdf Plain Language in Regulatory Drafting] (Dec. 8, 2017) (report to ACUS).<br />
*Jaclyn L. Falk, Comment, [https://cpb-us-w2.wpmucdn.com/usfblogs.usfca.edu/dist/7/272/files/2014/09/The-Behind-Closed-Door-Policy-Executive-Influence-in-the-Environmental-Protection-Agencys-Informal-Rulemaking.pdf The Behind Closed Door Policy: Executive Influence in the Environmental Protection Agency’s Informal Rulemaking], 47 U.S.F. L. Rev. 593 (2013).<br />
*Cynthia R. Farina, ''Undoing the New Deal Through the New Presidentialism'', 22 Harv. J. L. & Pub. Pol’y 227 (1998).<br />
*Scott Farrow, ''Improving Regulatory Performance: Does Executive Office Oversight Matter?'' (2001).<br />
*Arthur Fraas, ''Observations on OIRA’s Policies and Procedures'', 63 Admin. L. Rev. (special ed.) 79 (2011).<br />
*Arthur Fraas & Randall Lutter, ''On the Economic Analysis of Regulations at Independent Regulatory Commissions'', 63 Admin. L. Rev. 213 (special ed.) (2011).<br />
*Jody Freeman & Jim Rossi, [https://www.acus.gov/sites/default/files/documents/Freeman-Rossi-ACUS-Report-5-30-12-PDF.pdf Improving Coordination of Related Agency Responsibilities] (May 30, 2012) (report to ACUS).<br />
*William Funk “Agency Oversight by the Political Branches,” ch. 11 in Section on Administrative Law and Regulatory Practice, ''A Guide to Judicial and Political Review of Federal Agencies'' 259-304 (2d ed. Michael E. Herz, Richard Murphy & Kathryn Watts eds., 2015).<br />
*Margaret Gilhooley, [https://journals.iupui.edu/index.php/inlawrev/article/view/2956/2879 Executive Oversight of Administrative Rulemaking: Disclosing the Impact], 25 Ind. L. Rev. 299 (1991).<br />
*John D. Graham & Cory R. Liu, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_425_Graham_Liu-1.pdf Regulatory and Quasi-Regulatory Activity Without OMB and Cost-Benefit Review], 37 Harv. J.L. & Pub. Pol’y 425 (2014).<br />
*John D. Graham, Paul R. Noe & Elizabeth L. Branch, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2198&context=ulj Managing the Regulatory State: The Experience of the Bush Administration], 33 Fordham Urb. L. J. 953 (2006).<br />
*Wendy L. Gramm, ''Regulatory Review Issues, October 1985–February 1988'', 63 Admin. L. Rev. 27 (special ed.) (2011).<br />
*Abner S. Greene, ''Checks and Balances in an Era of Presidential Lawmaking'', 61 U. Chi. L. Rev. 123 (1994).<br />
*Robert W. Greene, [https://rutgerspolicyjournal.org/sites/jlpp/files/Greene.pdf Improving U.S. Financial Regulation Through OIRA Review & Robust Regulatory Analysis Standards], 14 Rutgers J.L. & Pub. Pol’y 89 (2016).<br />
*Sarah Grimmer, Note, ''Public Controversy Over Peer Review'', 57 Admin. L. Rev. 275 (2005).<br />
*Zachary J. Gubler, [https://www.acus.gov/sites/default/files/documents/ZGubler%20ACUS%20Final%20Report%2811-17%29.pdf Regulatory Experimentation] (Nov. 17, 2017) (report to ACUS).<br />
*Hiba Hafiz, [http://wisconsinlawreview.org/wp-content/uploads/2018/01/Hafiz-Final.pdf Economic Analysis of Labor Regulation], 2017 Wis. L. Rev. 1115 (2017).<br />
*Robert W. Hahn, Risks, ''Costs, and Lives Saved: Getting Better Results From Regulation'', (Oxford Univ. Press & AEI Press, 1996).<br />
*Robert W. Hahn & John A. Hird, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1177&context=yjreg The Costs and Benefits of Regulation: Review and Synthesis], 8 Yale J. on Reg. 233 (1991).<br />
*Lisa Heinzerling, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2202&context=ulj Statutory Interpretation in the Era of OIRA], 33 Fordham Urb. L. J. 1097 (2006).<br />
*Lisa Heinzerling, [https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1741&context=pelr Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House], 31 Pace Envtl. L. Rev. 325 (2014).<br />
*Thomas D. Hopkins, ''The Evolution of OIRA Oversight—CWPS to OIRA'', 63 Admin. L. Rev. 71 (special ed.) (2011).<br />
*Elena Kagan, ''Presidential Administration'', 114 Harv. L. Rev. 2245 (2001).<br />
*Sally Katzen, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1444&context=mlr A Reality Check on an Empirical Study: Comments on “Inside the Administrative State,”] 105 Mich. L. Rev. 1497 (2007).<br />
*Sally Katzen, ''OIRA at Thirty: Reflections and Recommendations'', 63 Admin. L. Rev. 103 (special ed.) (2011).<br />
*Cornelius M. Kerwin & Scott R. Furlong, ''Rulemaking: How Government Agencies Write Law and Make Policy'' (CQ Press, 4th ed. 2011).<br />
*Peter Ketcham-Colwill, [https://www.gwlr.org/wp-content/uploads/2018/02/82-Geo.-Wash.-L.-Rev.-1622.pdf Presidential Influence Over Agency Rulemaking Through Regulatory Review], 82 Geo. Wash. L. Rev. 1622 (2014).<br />
*Robert E. Litan & William D. Nordhaus, ''Reforming Federal Regulation'' (Yale Univ. Press, 1983).<br />
*Michael A. Livermore, [http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/Livermore_Art.pdf Cost-Benefit Analysis and Agency Independence], 81 U. Chi. L. Rev. 609 (2014).<br />
*Michael A. Livermore & Richard L. Revesz, [https://georgetownlawjournal.org/articles/119/regulatory-review-capture-agency/pdf Regulatory Review, Capture, and Agency Inaction], 101 Geo. L.J. 1337 (2013)<br />
*Jeffrey S. Lubbers, ''A Guide to Federal Agency Rulemaking'' (ABA Section of Admin. Law & Regulatory Practice, 5th ed. 2012).<br />
*Jeffrey S. Lubbers, ''OMB to Require Peer Review for Regulatory Science Documents'', 29 Admin. L. & Reg. News 3, Fall 2003.<br />
*Maureen Mahon, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1179&context=law_lawreview Proceed With Caution: The Implications of the OMB Peer Review Guidelines on Precautionary Legislation], 84 Wash. U. L. Rev. 461 (2006).<br />
*Jonathan S. Masur & Eric A. Posner, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4712&context=clr Unquantified Benefits and the Problem of Regulation Under Uncertainty], 102 Cornell L. Rev. 87 (2016).<br />
*Randolph J. May, ''OMB’s Peer Review Proposal—Swamped by Science?'', 29 Admin. & Reg. L. News 4, Spring 2004.<br />
*Michael McCarthy, [https://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91-1] (Oct. 19, 2011) (report to ACUS).<br />
*Thomas O. McGarity, ''Presidential Control of Regulatory Agency Decisionmaking'', 36 Am. U. L. Rev. 443 (1987).<br />
*Thomas O. McGarity, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1538&context=dlj Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age], 61 Duke L.J. 1671 (2012).<br />
*Patrick A. McLaughlin & Jerry Ellig, ''Does OIRA Review Improve the Quality of Regulatory Impact Analysis? Evidence from the Final Year of the Bush II Administration'', 63 Admin. L. Rev. 179 (special ed.) (2011).<br />
*Emily Hammond Meazell, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1539&context=dlj Presidential Control, Expertise, and the Deference Dilemma], 61 Duke L.J. 1763 (2012).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1208&context=articles Disclosing “Political” Oversight of Agency Decision Making], 108 Mich. L. Rev. 1127 (2010).<br />
*Nina Mendelson, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Mendelson_May.pdf Another Word on the President’s Statutory Authority over Agency Action], 79 Fordham L. Rev. 2455 (2011).<br />
*Nina A. Mendelson & Jonathan B. Wiener, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_447_Mendelson_Wiener.pdf Responding to Agency Avoidance of OIRA], 37 Harv. J.L. & Pub. Pol’y 447 (2014).<br />
*Gillian E. Metzger & Kevin M. Stack, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mlr Internal Administrative Law], 115 Mich. L. Rev. 1239 (2017).<br />
*James C. Miller III, ''The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future'', 63 Admin. L. Rev. 93 (special ed.) (2011).<br />
*Alan B. Morrison, ''OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation'', 99 Harv. L. Rev. 1059 (1986).<br />
*William A. Niskanen, ''Clinton Regulation Will Be “Rational”: Interview with Sally Katzen, the New OIRA Administrator'', Regulation Magazine No. 3, at 36 (1993).<br />
*Lars Noah, ''Peer Review and Regulatory Reform'', 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,606 (2000).<br />
*Paul Noe, ''Analyzing the Destruction of Human Capital by Regulations'', 63 Admin. L. Rev. 203 (special ed.) (2011).<br />
*Note, ''Regulatory Analyses and Judicial Review of Informal Rulemaking'', 91 Yale L. J. 739 (1982).<br />
*Note, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol124_%20OIRA%20_avoidance.pdf OIRA Avoidance], 124 Harv. L. Rev. 994 (2011).<br />
*Note, ''The Inflation Impact Statement Program: An Assessment of the First Two Years'', 26 Am. U. L. Rev. 1138 (1977).<br />
*Jennifer Nou, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_nou.pdf Agency Self-Insulation Under Presidential Review], 126 Harv. L. Rev. 1755 (2013).<br />
*Jennifer Nou & Edward H. Stiglitz, [https://southerncalifornialawreview.com/wp-content/uploads/2018/01/89_733.pdf Strategic Rulemaking Disclosure], 89 S. Cal. L. Rev. 733 (2016).<br />
*Anne Joseph O’Connell, [http://www.virginialawreview.org/sites/virginialawreview.org/files/889.pdf Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State], 94 Va. L. Rev. 889 (2008).<br />
*Erik D. Olson, ''The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291'', 4 Va. J. Nat. Resources L. 1 (1984).<br />
*Eloise Pasachoff, [https://www.yalelawjournal.org/pdf/a.2182.Pasachoff.2290_aqo1aub4.pdf The President’s Budget as a Source of Agency Policy Control], 125 Yale L.J. 2182 (2016).<br />
*Robert V. Percival, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1148&context=dlj Presidential Management of the Administrative State: The Not-So-Unitary Executive], 51 Duke L. J. 963 (2001).<br />
*Robert V. Percival, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Percival_May.pdf Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?], 79 Fordham L. Rev. 2487 (2011).<br />
*Richard J. Pierce, Jr., [http://www.nyujlpp.org/wp-content/uploads/2016/06/Pierce-Regulatory-Budget-Debate-19nyujlpp249.pdf The Regulatory Budget Debate], 19 N.Y.U. J. Legis. & Pub. Pol’y 249 (2016).<br />
*Eric A. Posner & E. Glen Weyl, [https://www.yalelawjournal.org/pdf/Posner-WeylPDF_ijby4z9e.pdf Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms], 124 Yale L.J. Forum 246 (2015).<br />
*Robert L. Rabin, ''Federal Regulation in Historical Perspective'', 38 Stan L. Rev. 1189 (1986).<br />
*Richard L. Revesz, [http://yalejreg.com/articlepdfs/34-JREG-545.pdf Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation], 34 Yale J. On Reg. 545 (2017).<br />
*Richard L. Revesz, [http://www.californialawreview.org/wp-content/uploads/2014/12/02-Revesz.pdf Quantifying Regulatory Benefits], 102 Cal. L. Rev. 1423 (2014).<br />
*Richard L. Revesz & Michael A. Livermore, ''Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health'' (Oxford Univ. Press 2008).<br />
*Delissa Ridgway et al., ''The Council on Competitiveness and Regulatory Review: A “Kinder, Gentler” Approach to Regulation?'', 6 Admin. L. J. Am. U. 691 (1993).<br />
*David B. Rivkin, ''The Unitary Executive and Presidential Control of Executive Branch Rulemaking'', 7 Admin. L. J. Am. U. 309 (1993).<br />
*Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291'', 80 Mich. L. Rev. 193 (1981).<br />
*Arden Rowell, [https://www.law.uci.edu/lawreview/vol4/no4/Rowell.pdf Time in Cost-Benefit Analysis], 4 UC Irvine L. Rev. 1215 (2014).<br />
*Susan Rose-Ackerman, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1153&context=umlr Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review], 65 U. Miami L. Rev. 335 (2011).<br />
*Andrew Rudalevige, [http://lawreview.syr.edu/wp-content/uploads/2015/09/G-Rudalevige-For-Website.pdf Old Laws, New Meanings: Obama’s Brand of Presidential “Imperialism”], 66 Syracuse L. Rev. 1 (2016).<br />
*J.B. Ruhl & James Salzman, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1170&context=law_lawreview In Defense of Regulatory Peer Review], 84 Wash. U. L. Rev. 1 (2006).<br />
*Thomas O. Sargentich, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/The-Emphasis-on-the-Presidency-in-U.S.-Public-Law-An-Essay-Critiquing-Presidential-Administration.pdf The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration], 59 Admin. L. Rev. 1 (2007).<br />
*Peter M. Shane, ''Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking'', 48 Ark. L. Rev. 161 (1995).<br />
*David R. Sheaffer, [https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1178&context=lr The Price of Regulation: Rethinking Executive Review of Agency Rulemaking], 2016 Mich. St. L. Rev. 1091 (2016).<br />
*Sidney Shapiro, [https://www.acus.gov/sites/default/files/documents/gov.acus_.1995.rec_.95-3.pdf Agency Review of Existing Regulations] (Jan. 15, 1995) (report to ACUS).<br />
*Sidney A. Shapiro, ''OMB’s Dubious Peer Review Procedures'', 34 Envtl. L. Rep. (Envtl. L. Inst.) 10,064 (2004).<br />
*Sidney A. Shapiro, ''OMB’s Revised Peer Review Bulletin'', 29 Admin. L. & Reg. News 10 (Summer 2004).<br />
*Sidney A. Shapiro & Richard Murphy, [https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Shapiro-Murphy.pdf Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation], 48 U.C. Davis L. Rev. 1457 (2015).<br />
*Sidney A. Shapiro & Ronald F. Wright, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1160&context=umlr The Future of the Administrative Presidency: Turning Administrative Law Inside-Out], 65 U. Miami L. Rev. 577 (2011).<br />
*Stuart Shapiro, ''OIRA Inside and Out'', 63 Admin. L. Rev. 135 (special ed.) (2011).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Stuart Shapiro & Debra Borie-Holtz, ''The Politics of Regulatory Reform'' (Routledge 2013).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS).<br />
*Peter L. Strauss, ''Overseer or “The Decider”? The President in Administrative Law'', 75 Geo. Wash. L. Rev. 696 (2007).<br />
*Peter L. Strauss, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=caselrev The President and the Constitution], 65 Case W. Res. L. Rev. 1151 (2015).<br />
*Peter L. Strauss & Cass R. Sunstein, ''The Role of the President and OMB in Informal Rulemaking'', 38 Admin. L. Rev. 181 (1986).<br />
*Cass R. Sunstein, Simpler: ''The Future of Government'' (Simon & Schuster, 2013).<br />
*Cass R. Sunstein, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_sunstein.pdf The Office of Information and Regulatory Affairs: Myths and Realities], 126 Harv. L. Rev. 1838 (2013).<br />
*Cass R. Sunstein, [http://www.bu.edu/bulawreview/files/2014/08/SUNSTEINDYSFUNCTION.pdf The Regulatory Lookback], 94 B.U. L. Rev. 579 (2014).<br />
*Jim Tozzi, ''OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding'', 63 Admin. L. Rev. 37 (special ed.) (2011).<br />
*Paul R. Verkuil, ''Jawboning Administrative Agencies: Ex Parte Contacts by the White House'', 80 Colum. L. Rev. 943 (1980).<br />
*Christopher J. Walker, ''Modernizing the Administrative Procedure Act'', 69 Admin. L. Rev. 629 (2017).<br />
*Adam L. Warber, ''Executive Orders and the Modern Presidency: Legislating from the Oval Office'' (Lynne Reiner Publishers 2006).<br />
*Kathryn A. Watts, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1240&context=mlr Controlling Presidential Control], 114 Mich. L. Rev. 683 (2016).<br />
*Christopher E. Wilson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Not-Good-Enough-for-Government-Work-How-OMBs-Good-Guidance-Practices-May-Unintentionally-Complicate-Administrative-Law.pdf Comment: Not Good Enough for Government Work: How OMB’s Good Guidance Practices May Unintentionally Complicate Administrative Law], 59 Admin. L. Rev. 177 (2007).<br />
</div><br />
<br />
===Miscellaneous===<br />
<br />
*National Academy of Public Administration, ''Presidential Management of Rulemaking in Regulatory Agencies'' (1987).<br />
*[http://www.thecre.com/ombpapers/featuredarticles.html Center for Regulatory Effectiveness].<br />
*Competitive Enterprise Institute, [https://cei.org/10KC Ten Thousand Commands].</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Rulemaking_Requirements_from_the_Executive_Office_of_the_President&diff=1684Rulemaking Requirements from the Executive Office of the President2023-08-15T21:23:07Z<p>MGluth: </p>
<hr />
<div>This section discusses the most significant presidential Executive Orders, Bulletins, and Memoranda, which pertain to the rulemaking process or federal regulation. Other executive orders and memoranda may be found in other sections, e.g., those relating to the [[Federal Advisory Committee Act]].<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)], [https://www.whitehouse.gov/omb/ Office of Management and Budget (OMB)]<br />
<br />
==Executive Orders==<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Executive Order 12372, [https://www.archives.gov/federal-register/codification/executive-order/12372.html Intergovernmental Review of Federal Programs], 47 Fed. Reg. 30959 (July 16, 1982).<br />
*Executive Order 12630, [https://www.archives.gov/federal-register/codification/executive-order/12630.html Governmental Actions and Interference with Constitutionally Protected Property Rights], 53 Fed. Reg. 8859 (Mar. 18, 1988).<br />
*Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 ( Oct. 4, 1993).<br />
*Executive Order 12889, [https://www.govinfo.gov/content/pkg/WCPD-1994-01-03/pdf/WCPD-1994-01-03-Pg2639.pdf Implementation of the North American Free Trade Agreement], 58 Fed. Reg. 69681 (Dec. 30, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations], 59 Fed. Reg. 7629 (Feb. 16, 1994).<br />
*Executive Order 12988, [https://www.govinfo.gov/content/pkg/WCPD-1996-02-12/pdf/WCPD-1996-02-12-Pg189.pdf Civil Justice Reform], 61 Fed. Reg. 4729 (Feb. 7, 1996).<br />
*Executive Order 13045, [https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Protection of Children from Environmental Health Risks and Safety Risks], 62 Fed. Reg. 19885 (Apr. 23, 1997).<br />
*Executive Order 13132, [https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Federalism], 64 Fed. Reg. 43255 (Aug. 10, 1999).<br />
*Executive Order 13175, [https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Consultation and Coordination with Indian Tribal Governments], 65 Fed. Reg. 67249 (Nov. 9, 2000).<br />
*Executive Order 13211, [https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use], 66 Fed. Reg. 28355 (May 22, 2001).<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 16, 2002).<br />
*Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review], 76 Fed. Reg. 3821 (Jan. 21, 2011) (supplementing and reaffirming Executive Order 12866).<br />
*Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], 76 Fed. Reg. 41587 (July 14, 2011).<br />
*Executive Order 13609, [https://www.govinfo.gov/content/pkg/FR-2012-05-04/pdf/2012-10968.pdf Promoting International Regulatory Cooperation], 77 Fed. Reg. 26413 (May 4, 2012).<br />
*Executive Order 13610, [https://www.govinfo.gov/content/pkg/FR-2012-05-14/pdf/2012-11798.pdf Identifying and Reducing Regulatory Burdens], 77 Fed. Reg. 28469 (May 14, 2012).<br />
*Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People], 80 Fed. Reg. 56356 (Sept. 18, 2015).<br />
*Executive Order 13725, [https://www.govinfo.gov/content/pkg/FR-2016-04-20/pdf/2016-09346.pdf Steps to Increase Competition and Better Inform Consumers and Works to Support Continued Growth of the American Economy], 81 Fed. Reg. 23417 (Apr. 20, 2016).<br />
*Executive Order 14094, [https://www.govinfo.gov/content/pkg/FR-2023-04-11/pdf/2023-07760.pdf Modernizing Regulatory Review], 88 Fed. Reg. 21,879 (Apr. 11, 2023).<br />
</div><br />
<br />
==Table of Executive Order Requirements==<br />
{| class="wikitable"<br />
|+<br />
!Executive Order (EO)<br />
!Date and Administration of Issue<br />
!Action Items<br />
!Does the EO Contain a Statement Regarding Applicability to Independent Agencies?<br />
|-<br />
|[https://www.archives.gov/federal-register/codification/executive-order/12630.html EO 12630 - Governmental Actions and Interference with Constitutionally Protected Property Rights]<br />
|1988 - Reagan<br />
|''General Principles''. Each agency “shall be guided by” the principles set forth in the EO when “formulating or implementing policies that have takings implications.” <br />
<br />
<br />
''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.”<br />
<br />
''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.<br />
<br />
<br />
''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).<br />
<br />
<br />
''Ensuring Compliance.'' OMB and the Department of Justice are responsible for ensuring compliance with the EO.<br />
|No<br />
|-<br />
|[https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf EO 12866 - Regulatory Planning and Review]<br />
|1993 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|See [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 12866 table]<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12889.pdf EO 12889 - Implementation of the North American Free Trade Agreement]<br />
|1993 - Clinton<br />
|''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.”<br />
<br />
<br />
''Exceptions''<br />
<br />
#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)).<br />
#Perishable Goods. Technical regulations relating to perishable goods.<br />
#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.<br />
#Urgent Sanitary or Phytosanitary Protection. Regulations addressing an “urgent problem” relating to sanitary or phytosanitary protection.<br />
<br />
''Definitions''<br />
<br />
#Technical Regulations. These are defined in the Trade Agreements Act at 19 U.S.C. §2576 b(7).<br />
#Sanitary or Phytosanitary Measures. These are defined at 19 U.S.C. §2575 b(7).<br />
|No<br />
|-<br />
|[https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf EO 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations]<br />
|1994 - Clinton<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|Yes. See § 6–604 for relevant text: "Independent agencies are requested to comply with the provisions of this order."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1996-02-07/pdf/96-2755.pdf EO 12988 - Civil Justice Reform]<br />
|1996- Clinton<br />
|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.<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf EO 13045 - Protection of Children from Environmental Health Risks and Safety Risks]<br />
|1997 - Clinton<br />
|''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.”<br />
''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:<br />
<br />
#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.”<br />
#Alternatives: “an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-1999-08-10/pdf/99-20729.pdf EO 13132 - Federalism]<br />
|1999 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|See [https://www.acus.gov/appendix/executive-order-13132-federalism 13132 table] <br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2000-11-09/pdf/00-29003.pdf EO 13175 - Consultation and Coordination with Indian Tribal Governments]<br />
|2000 - Clinton<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|See [https://www.acus.gov/appendix/executive-order-13175-consultation-and-coordination-indian-tribal-governments 13175 table]<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2001-05-22/pdf/01-13116.pdf EO 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use]<br />
|2001 - Bush<br />
|''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.<br />
<br />
<br />
''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. <br />
<br />
<br />
''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. <br />
<br />
<br />
''Publication.'' Agencies must publish the Statement or a summary in the related NPRM and final rule.<br />
|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 . . . ."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2002-08-16/pdf/02-21056.pdf EO 13272 - Proper Consideration of Small Entities in Agency Rulemaking]<br />
|2002 - Bush<br />
|''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.<br />
<br />
<br />
''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.<br />
<br />
<br />
''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.”<br />
|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."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf EO 13563 - Improving Regulation and Regulatory Review]<br />
|2011 - Obama<br />
|''General Principles.'' This EO supplements and reaffirms [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review 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.<br />
<br />
<br />
''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.”<br />
<br />
<br />
''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.”<br />
<br />
<br />
''Flexible Approaches.'' Agencies must consider “approaches that reduce burdens and maintain flexibility and freedom of choice.”<br />
<br />
<br />
''Objectivity with regard to scientific information.'' Agencies must “ensure the objectivity of any scientific and technological information and processes” supporting their rulemaking.<br />
<br />
<br />
''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.”<br />
|Yes. See § 7(a) for relevant text: "For purposes of this order, 'agency' shall have the meaning set forth in section 3(b) of [https://www.acus.gov/appendix/executive-order-12866-regulatory-planning-and-review <nowiki>[EO] 12866</nowiki>]."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2011-07-14/pdf/2011-17953.pdf EO 13579 - Regulation and Independent Regulatory Agencies]<br />
|2011 - Obama<br />
|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.”<br />
|Yes. The EO is entirely geared toward independent agencies.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-04/pdf/2012-10968.pdf EO 13609 - Promoting International Regulatory Cooperation]<br />
|2012 - Obama<br />
|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.<br />
|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.<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf EO 13610 - Identifying and Reducing Regulatory Burdens]<br />
|2012 - Obama<br />
|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.<br />
|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)."<br />
|-<br />
|[https://www.gpo.gov/fdsys/pkg/FR-2016-04-20/pdf/2016-09346.pdf EO 13725 - Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy]<br />
|2016 - Obama<br />
|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. <br />
|Yes. See § 3(b) for relevant text: "Independent agencies are strongly encouraged to comply with the requirements of this order."<br />
|}<br />
<br />
==Other White House Bulletins and Memoranda==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-119-1.pdf Federal Participation in the Development and Use of Voluntary Standards and in Conformity Assessment Activities] (1998).<br />
*[https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf Plain Language in Government Writing] (1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/pubpress/2001-38-attach.pdf Presidential Review of Agency Rulemaking by OIRA] (2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf OMB’s Circular No. A-4, New Guidelines for the Conduct of Regulatory Analysis] (2004).<br />
*M-05-03, [https://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05-03.pdf Final Information Quality Bulletin for Peer Review] (2004).<br />
*[https://www.govinfo.gov/content/pkg/FR-2007-01-25/pdf/E7-1066.pdf Final Bulletin for Agency Good Guidance Practices] (2007).<br />
*M-07-24, [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis](2007).<br />
*M-19-14, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf Guidance on Compliance with the Congressional Review Act] (2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-01-26/pdf/2021-01866.pdf Modernizing Regulatory Review] (2021)<br />
</div><br />
<br />
==Overview==<br />
===History of Presidential Oversight of Rulemaking and Regulation===<br />
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. <br />
<br />
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.<br />
<br />
In 1974, President Ford issued an executive order requiring executive branch agencies to prepare an “inflation impact statement” for each “major” federal action. 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” rules prior to publication of the notice of proposed rulemaking (NPRM), and then to forward a summary of the IIS to COWPS upon publication of the NPRM. COWPS would review the IIS and, in its discretion, offer informal criticism of the proposal or participate in the public proceedings on the rule. <br />
<br />
President Carter continued presidential review of agency rules by means of Executive Order 12044, ''Improving Government Regulations'', issued in 1978. Under the order, executive agencies were required to: (1) publish semi-annual agendas, describing and giving the legal bases for, any “significant” regulations under development by the agency; (2) establish procedures to identify “significant” rules, to evaluate their need, and to have the agency head assure that the “least burdensome of the acceptable alternatives” was proposed; and (3) prepare a “regulatory analysis” that examined the cost-effectiveness of alternative regulatory approaches for “major rules.”<br />
<br />
President Carter also established a Regulatory Analysis Review Group to review the regulatory analyses prepared for a limited number of proposed “major” rules and to submit comments on the proposed rules during the public comment period. He created another rulemaking review body, the Regulatory Council, which was charged with coordinating agency rulemaking to avoid duplication of effort or conflicting policy in regulation of any area. These efforts to coordinate agency rulemaking were challenged unsuccessfully in several lawsuits.<br />
<br />
President Reagan acted quickly after taking office to increase control over executive branch rulemaking. On February 17, 1981, the President issued an executive order on federal regulations designed “to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations.” The new Executive Order 12291, [https://www.archives.gov/federal-register/codification/executive-order/12291.html Federal Regulation], replaced Executive Order 12044, which President Reagan said had “proven ineffective.” <br />
<br />
Executive Order 12291 contained both substantive requirements and procedural steps to be followed in the development and promulgation of new rules. The [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs (OIRA)] in OMB was given responsibility for implementing Executive Order 12291. OMB’s rulemaking review function is supplemented by the powers it was given in the [[Paperwork Reduction Act]] of 1980, by which Congress statutorily established OIRA to, among other things, review and approve or disapprove agency “information collection requests.”<br />
<br />
The Office of Legal Counsel in the U.S. Department of Justice issued an [https://www.justice.gov/file/22586/download opinion] supporting the validity of Executive Order 12291. The opinion stated that the President’s authority to issue the order was based on his constitutional power to “take care that the laws be faithfully executed.” While concluding that any inquiry into Congressional intent in enacting specific rulemaking statutes “will usually support the legality of presidential supervision of rulemaking by Executive Branch agencies,” the opinion stated that presidential supervision of agency rulemaking “is more readily justified when it does not purport wholly to displace, but only to guide and limit, discretion which Congress had allocated to a particular subordinate official.”<br />
<br />
Despite criticism of this new form of presidential review, President Reagan began his second term by expanding the program through Executive Order 12498, [https://www.archives.gov/federal-register/codification/executive-order/12498.html Regulatory Planning Process], which established a “regulatory planning process” with the purpose of helping to “ensure that each major step in the process of rule development is consistent with Administration policy.” <br />
<br />
According to OMB, the problem with regulatory review under Executive Order 12291 was that such review “often came late in the regulatory process, after huge investments of agency time and resources, and often after agency staff commitments to constituents had made it extremely difficult to consider any legally acceptable, but previously ignored, regulatory alternative.” This resulted, OMB said, in the “bureaucracy often present[ing] agency heads with faits accompli.” <br />
<br />
Executive Order 12498’s regulatory planning process was designed to avoid this problem. Under this procedure, the head of each agency was required to determine at the beginning of the regulatory process whether a proposed regulatory venture was “consistent with the goals of the Administration.” At the beginning of the year, Agency heads were to develop a plan for managing the agency’s most significant regulatory actions. OMB then reviewed the plan for consistency with the administration’s program and published the coordinated agency plans in a government-wide document. This document, entitled “Regulatory Program of the United States Government,” governed more than 20 major rulemaking agencies and was published each year during the second Reagan term and the Bush administration to inform Congress and the public of the government’s regulatory plans.<br />
<br />
President Reagan, in 1987 and 1988, issued three additional executive orders, dealing with federalism, interference with property rights (which is still in effect), and the family. OMB was given a role in ensuring coordination of regulatory policy in these areas. President Bush basically continued the program of presidential review of agency rulemaking established by President Reagan, although due to congressional opposition to OIRA actions, President Bush’s nominee to head OIRA was not confirmed. To counter this weakening of OIRA’s authority, President Bush created the Council on Competitiveness, headed by Vice President Quayle, and gave it authority to intervene in major agency rulemakings. Several of the Council’s interventions provoked intense criticisms leading up to the 1992 elections.<br />
<br />
===The Clinton Executive Order—Executive Order 12866===<br />
With the election of President Clinton, one of his first actions was an attempt to reestablish some bipartisan consensus on rulemaking review. His nominee as OIRA Administrator was the first subcabinet nominee to be appointed. Following the example of the Reagan Administration, President Clinton then set out to redraft the extant Executive Order and produced Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], on September 30, 1993. This Executive Order, which remains operative, carries over many of the principles of Executive Order 12291 and Executive Order 12498 and made some significant modifications that simplified the process, made it more selective, and introduced more transparency into the OMB/agency consultations. In drafting this Executive Order, the Clinton Administration followed many of the suggestions in ACUS [https://www.acus.gov/sites/default/files/documents/88-9.pdf Recommendation 88-9]. <br />
<br />
The Executive Order begins with a lengthy “Statement of Regulatory Philosophy and Principles,” which are quite similar to those in Executive Order 12291 except that it specifies that measurement of costs and benefits should include both quantifiable and qualitative measures. As with previous Orders, Executive Order 12866 retains the traditional (since 1978) level of $100 million annual effect on the economy for those major rules (now referred to as “economically significant” rules) that must be accompanied by cost-benefit assessments when forwarded to OIRA as proposed and final rules.<br />
<br />
Executive Order 12866 also retains the OIRA review process for other rules, although it only requires that “significant regulatory actions” be subject to review. This includes those $100 million rules plus others that have material adverse effects on “the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” It also includes rules that may materially alter the budgetary impact of benefit programs or the rights of recipients, that raise “novel legal or policy issues,” or are inconsistent or interfere with actions taken by another agency. The process established for identifying such “significant regulatory actions” relies on agency identification of them in the first instance, vetted by OIRA. Rules that are not so identified may be issued without OIRA review. This selectivity streamlined the review process considerably and made it possible to include, for the first time, a deadline (of 90 days, with one 30-day extension allowed) for completion of OIRA review. In the event of an unresolved dispute between OIRA and the agency, the Vice President is directed to make the decision (or recommend one to the President).<br />
<br />
The review process set forth in the Executive Order made significant improvements in transparency. Following an ACUS recommendation closely, it provides that after the agency has concluded its rulemaking it should make available to the public all submissions to OIRA and identify all changes made in the rule, noting those made at the behest of OIRA. In addition, OIRA, for its part, must regularize the way it receives any outside communications concerning an agency rule that is subject to review. Only the Administrator or her designee may receive such communications. OIRA must forward any such communications to the agency within ten days, invite agency officials to any meetings held with outsiders, and maintain a public log of all such contacts. At the end of the proceeding OIRA must also make available all documents exchanged with the agency.<br />
<br />
In place of the Reagan Executive Order 12498 on regulatory planning, the Clinton Order establishes its own yearly planning mechanism. It continues the semiannual publication of the [https://www.reginfo.gov/public/do/eAgendaMain Unified Regulatory Agenda], which lists all proposed, pending, and completed regulatory and deregulatory actions. And it requires that the October Agenda contain each agency’s annual Regulatory Plans, which must be approved personally by the agency head. These plans must be forwarded to OIRA (and then on to affected agencies, the Vice President and a group of named high-level White House Advisors) by June 1 of each year. The plans are supposed to also include agency determinations on which existing rules are to be reviewed and reconsidered during the ensuing year and “preliminary estimates of the anticipated costs and benefits” of each rule planned for that calendar year. These actions do not represent any sharp break from the practices of previous administrations. However, Executive Order 12866 is a departure in one regard—for the first time the independent regulatory agencies are specifically directed to comply with the planning and agenda provisions (though not with the rule-review process).<br />
<br />
The Clinton Executive Order was generally well received by most observers of the regulatory scene. Its basic approach has remained fundamentally unchanged since its issuance, and OIRA has worked out a stable and workable relationship with the agencies in administering it. The once rather vibrant legal and policy debate over the pros and cons of presidential review has gradually evolved into a fairly broad agreement that it is legal and, if properly administered, is essential to effective executive branch management. Nevertheless, there has been some serious criticism of OIRA’s failure to meet the deadlines set in the Order. <br />
<br />
President Clinton also issued a [https://www.govinfo.gov/content/pkg/FR-1998-06-10/pdf/98-15700.pdf presidential directive on plain language] and number of other executive orders that remain in effect concerning: environmental justice in minority populations and low-income populations ([https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO12898envjustice.pdf Executive Order 12898]), civil justice reform ([https://www.govinfo.gov/content/pkg/FR-1996-02-07/pdf/96-2755.pdf Executive Order 12988]), protection of children from environmental risks ([https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf Executive Order 13045]), federalism ([https://www.govinfo.gov/content/pkg/FR-1999-08-10/pdf/99-20729.pdf Executive Order 13132]), and consultation with Indian Tribal Governments ([https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf Executive Order 13175]).<br />
<br />
President Bush continued the use of Executive Order 12866, although he did make several significant changes. In 2002, he made some small changes in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review], basically removing the Vice President from the process. In January 2007, in Executive Order 13422, [https://www.govinfo.gov/content/pkg/FR-2007-01-23/pdf/07-293.pdf Further Amendment to Executive Order 12866 on Regulatory Planning and Review], he made more fundamental changes. Most significantly he added a requirement that “significant guidance documents” also be reviewed by OIRA in a way similar to significant regulatory actions. He also required that agencies identify in writing specific “market failures” that necessitate a rulemaking, that agency Regulatory Policy Officers be presidential appointees, that these officers must approve the Regulatory Plan, that aggregate costs and benefits for all rules must be included in the Regulatory Plan, and that agencies consider whether to use “formal” (“on the record”) rulemaking for “complex determinations.” However, as mentioned below, President Obama, upon assuming office, revoked the Bush changes and reinstated the original Clinton order. However, by later memorandum, the requirement that significant guidance documents be reviewed by OIRA was reinstated.<br />
<br />
OIRA did issue a [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/pubpress/2001-38-attach.pdf memorandum] in September 2001 putting its own stamp on the Executive Order 12866 process. The memorandum describes the “general principles and procedures that will be applied by OMB in the implementation of Executive Order 12866 and related statutory and executive authority.”<br />
<br />
Significantly, during the Bush Administration, OIRA also announced several new initiatives in its review process. First, it made extensive use of its website to publish its guidelines and other information pertaining to its review process and specific rule reviews. This continues today. Second, it began the practice of issuing public “return letters” that send rules back to the agency for reconsideration, “review letters” that comment on aspects of a particular rule review, and “prompt letters,” which are sent on OMB’s initiative and contain suggestions for new or stronger regulations. While these letters are still posted on [https://www.reginfo.gov/public/do/eoReturnLetters reginfo.gov], the Obama and the Trump Administrations have made little use of this practice. <br />
<br />
More importantly, during the Bush Administration, OMB issued four far-reaching documents affecting the regulatory process that remain in effect today. In 2003 it issued a revised [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/regulatory_matters_pdf/memo_pmc_a4.pdf OMB Circular A-4], which provides guidance on the development of regulatory analyses. OMB also issued a more far-reaching and controversial [https://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05-03.pdf Peer Review Bulletin] in December 2004, which requires administrative agencies to conduct a peer review on all “influential regulatory information that the agency intends to disseminate.” Finally, in 2007, OMB issued an important new government-wide [https://www.gpo.gov/fdsys/pkg/FR-2007-01-25/pdf/E7-1066.pdf Bulletin on Good Guidance Practices.] It also (along with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy]) issued a set of [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. In so doing it declined to finalize a Proposed Risk Assessment Bulletin that the two agencies had issued in January 2006, in favor of updating the Clinton Administration’s Principles issued in 1995. Finally, President Bush issued two other executive orders concerning regulations that remain in effect today: (1) analysis of adverse effects on energy supply, distribution, or use ([https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13116.pdf Executive Order 13211]) and (2) proper consideration of small entities in agency rulemaking ([https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Executive Order 13272]). <br />
<br />
===Developments in the Obama Administration===<br />
Shortly after taking office, President Obama revoked the Bush Amendments to Executive Order 12866 and directed the Director of OMB, in consultation with regulatory agencies, to produce a set of recommendations for a new executive order on federal regulatory review within 100 days, followed by an unusual request for public comments on the same subject. Almost 200 public comments were received. <br />
<br />
After about a year of internal consideration, the White House finally settled on its approach to OMB review—basically to reaffirm Executive Order 12866—with Executive Order 13563, [https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf Improving Regulation and Regulatory Review] on January 18, 2011. In Section 1(b), the Order stated: “This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866.”<br />
<br />
It did contain a few new mandates and points of emphasis. Most notably, agencies were urged (as appropriate and within legal constraints) to (1) consider “values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts”; (2) “afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”; (3) “provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded”; (4) for proposed rules, provide “an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings”; (5) seek public input from affected persons “[b]efore issuing a notice of proposed rulemaking”; (6) “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice”; (7) “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned”; and (8) “[w]ithin 120 days of the date of this order, . . . develop and submit to [OIRA] a preliminary plan” for periodically reviewing “its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” <br />
<br />
The one action mandate in the new Executive Order was for agencies to develop plans for retrospective review of their existing regulations. On May 26, 2011, the OIRA Administrator announced the results of this effort. On July 11, 2011, President Obama issued Executive Order 13579, [https://www.govinfo.gov/content/pkg/FR-2011-07-14/pdf/2011-17953.pdf Regulation and Independent Regulatory Agencies], which extended the terms of Executive Order 13563 to independent regulatory agencies. On September 15, 2015, President Obama issued Executive Order 13707, [https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23630.pdf Using Behavioral Science Insights to Better Serve the American People]. Noting the value of insights from behavioral science to improve the “effectiveness and efficiency of Government.”<br />
<br />
===Developments in the Trump Administration===<br />
Shortly after taking office, President Trump issued Executive Order 13771, [https://www.govinfo.gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf Reducing Regulation and Controlling Regulatory Costs,] which requires agencies to identify at least two regulations to be repealed for every proposed or promulgated regulation. 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. The order directed the Director of OMB to provide agency heads with guidance addressing the processes for measuring regulatory costs, the costs of existing regulations, what qualifies as new and offsetting regulations, and situations that would require waivers of the order’s requirements. OIRA issued [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs”] to assist agencies in carrying out these requirements.<br />
<br />
President Trump also issued Executive Order 13777, [https://www.govinfo.gov/content/pkg/FR-2017-03-01/pdf/2017-04107.pdf Enforcing the Regulatory Reform Agenda]. This order requires the head of each agency to designate an official as its Regulatory Reform Officer (RRO) who would implement initiatives and policies including Executive Order 13771, Executive Order 12866, and Section 6 of Executive Order 13563 regarding retrospective review. All agencies must also form a Regulatory Reform Task Force made up of the RRO, the Regulatory Policy Officer, a representative from the central policy office, and three senior agency officials if the agency is listed in 31 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 901(b)(1)] (the executive departments, EPA, and NASA), which “shall evaluate existing regulations . . . and make recommendations to the agency head regarding their repeal, replacement, or modification.” In making these determinations, the task forces should focus on regulations that (1) “eliminate jobs, or inhibit job creation;” (2) “are outdated, unnecessary, or ineffective;” (3) “impose costs that exceed benefits;” (4) “create serious inconsistency or otherwise interfere with regulatory initiatives and policies;” (5) “are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001, . . . in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or” (6) “derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” The Executive Order also requires agency heads to prioritize regulations that the Regulatory Reform Task Force identifies as outdated, unnecessary, or ineffective when implementing regulatory offsets under Executive Order 13771.<br />
<br />
Finally, President Trump issued Executive Order 13783, [https://www.govinfo.gov/content/pkg/FR-2017-03-31/pdf/2017-06576.pdf Promoting Energy Independence and Economic Growth,] which directs agencies to review regulations that “potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources.” This order also revoked Executive Order 13653, [https://www.govinfo.gov/content/pkg/FR-2013-11-06/pdf/2013-26785.pdf Preparing the United States for the Impact of Climate Change], and memoranda under the Obama Administration related to climate change.<br />
<br />
===Developments in the Biden Administration===<br />
Within his first two months in office, President Biden rescinded several of President Trump’s executive orders related to the rulemaking process. In addition, President Biden issued a memorandum titled Modernizing Regulatory Review. This memorandum explicitly reaffirms Executive Orders 12,866 and 13,563. Additionally, it directs the OMB Director to work with agencies to produce a set of recommendations that improves and modernizes regulatory review. The memorandum specifies that these recommendations should include concrete suggestions on how the regulatory review process can “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” Furthermore, the memorandum specifies that the recommendations should, among other actions, include proposed reforms to Circular A-4 to promote these goals; suggest procedures that take into account distributional impacts in regulatory analyses; propose how OIRA can partner with agencies to “explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits”; and determine an appropriate approach to the review of guidance documents.<br />
<br />
==Bibliography==<br />
===Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg33312/pdf/CHRG-110hhrg33312.pdf Amending Executive Order 12866: Good Governance or Regulatory Usurpation?], Hearing Before Subcomm. on Commercial and Admin. Law, H. Comm. of the Judiciary, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg86439/pdf/CHRG-108hhrg86439.pdf How to Improve Regulatory Accounting: Costs, Benefits and Impacts of Federal Regulations], Hearing Before Subcomm. on Energy Policy, Nat. Res. and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004) (statement of John D. Graham, Administrator of OIRA).<br />
*OIRA Insight, Reform, and Accountability Act, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt19/pdf/CRPT-115hrpt19-pt1.pdf H.R. Rep. No. 115-19] (2017).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg20632/pdf/CHRG-114hhrg20632.pdf Assessing the Obama Years: OIRA and Regulatory Impacts on Jobs, Wages and Economic Recovery], Hearing Before Subcomm. On Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 114th Cong. (2016) ([https://judiciary.house.gov/hearing/assessing-obama-years-oira-regulatory-impacts-jobs-wages-economic-recovery/ video]).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26026/pdf/CHRG-114hhrg26026.pdf Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking], Hearing Before Subcomm. on Health Care, Benefits and Admin. Rules & Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/challenges-facing-oira-ensuring-transparency-effective-rulemaking/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82203/pdf/CHRG-113hhrg82203.pdf Reducing Red Tape: The New OIRA Administrator’s Perspective], Hearing Before H. Comm. on Small Bus., 113th Cong. (2013).<br />
<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
====Reports to Congress on the Costs and Benefits of Regulations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Report to Congress on the Costs and Benefits of Federal Regulations (Sept. 30, 1997). Notice of availability of draft report and request for comments, 62 Fed. Reg. 39352 (July 22, 1997).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport1998.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (January 1999). Notice of availability of draft report and request for comments, 63 Fed. Reg. 44034 (Aug. 17, 1998), extended 63 Fed. Reg. 49935 (Sept. 18, 1998).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2000fedreg-charts.pdf Report to Congress on the Costs and Benefits of Federal Regulations] (June 2000). Notice of availability of draft report and request for comments, 65 Fed. Reg. 1296 (Jan. 7, 2000); extended 65 Fed. Reg. 4447 (Jan. 27, 2000) and 65 Fed. Reg. 7198 (Feb. 7, 2000).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/costbenefitreport.pdf Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2001). Notice of availability of draft report and request for comments, 66 Fed. Reg. 22041 (May 2, 2001); extended 66 Fed. Reg. 34963 (July 2, 2001).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2002_report_to_congress.pdf Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2002). Notice of availability of draft report and request for comments, 67 Fed. Reg. 15014 (Mar. 28, 2002).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2003_cost-ben_final_rpt.pdf Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (September 2003). Notice of availability of draft report and request for comments, 68 Fed. Reg. 15772 (Apr. 1, 2003).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2004_cb_final.pdf Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2004). Notice of availability of draft report and request for comments, 69 Fed. Reg. 7987 (Feb. 20, 2004).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2005_cb/final_2005_cb_report.pdf Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (December 2005). Notice of availability of draft report and request for comments, 70 Fed. Reg. 14735 (Mar. 23, 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2006_cb/2006_cb_final_report.pdf 2006 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2007). Notice of availability of draft report and request for comments, 71 Fed. Reg. 19213 (Apr. 13, 2006).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/2007_cb/2007_cb_final_report.pdf 2007 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2008). Notice of availability of draft report and request for comments, 72 Fed. Reg. 11061 (Mar. 12, 2007).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/information_and_regulatory_affairs/2008_cb_final.pdf 2008 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (January 2009). Notice of availability of draft report and request for comments, 73 Fed. Reg. 55169 (Sept. 24, 2008).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/2009_final_BC_Report_01272010.pdf 2009 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Jan. 27, 2010). Notice of availability of draft report and request for comments, 74 Fed. Reg. 48101 (Sept. 21, 2009).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/legislative/reports/2010_Benefit_Cost_Report.pdf 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (July 2010). Notice of availability of draft report and request for comments, 75 Fed. Reg. 22630 (Apr. 29, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2011_cb/2011_cba_report.pdf 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 2011). Notice of availability of draft report and request for comments, 76 Fed. Reg. 18260 (Apr. 1, 2011).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2012_cb/2012_cost_benefit_report.pdf 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (April 2013). Notice of availability of draft report and request for comments, 77 Fed. Reg. 22003 (Apr. 12, 2012).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2013_cb/2013_cost_benefit_report-updated.pdf 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (May 2014). Notice of availability of draft report and request for comments, 78 Fed. Reg. 29780 (May. 21, 2013).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2014_cb/2014-cost-benefit-report.pdf 2014 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (June 15, 2015). Notice of availability of draft report and request for comments, 72 Fed. Reg. 37776 (July 2, 2014).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/2015_cb/2015-cost-benefit-report.pdf 2015 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities] (Mar. 10, 2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/legislative_reports/draft_2016_cost_benefit_report_12_14_2016_2.pdf 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Dec. 23, 2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/12/draft_2017_cost_benefit_report.pdf 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act] (Feb. 23, 2018).<br />
</div><br />
<br />
====Other OMB Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Program of the United States Government'' (1987-1988) (and through 1990-91).<br />
*''Report on Executive Order No. 12866'', 59 Fed. Reg. 24276 (May 10, 1994).<br />
*''More Benefits Fewer Burdens—Creating a Regulatory System that Works For the American People'', A Report to the President on the Third Anniversary of Executive Order 12866 (1996).<br />
</div><br />
<br />
===ACUS Documents===<br />
====Recommendations====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*88-9 [https://www.acus.gov/sites/default/files/documents/88-9.pdf Presidential Review of Agency Rulemaking]<br />
*93-4 [https://www.acus.gov/sites/default/files/documents/93-4.pdf Improving the Environment for Agency Rulemaking]<br />
*95-3 [https://www.acus.gov/sites/default/files/documents/95-3.pdf Review of Existing Agency Regulations]<br />
*2011-6 [https://www.acus.gov/sites/default/files/Recommendation-2011-6-International-Regulatory-Cooperation.pdf International Regulatory Cooperation]<br />
*2012-5 [https://www.acus.gov/sites/default/files/Final-Recommendation-2012-5-Improving-Agency-Coordination.pdf Improving Coordination of Related Agency Responsibilities]<br />
*2013-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202013-2%20%28Benefit-Cost%20Analysis%29_0.pdf Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%25202014-5%2520%2528Retrospective%2520Review%2529_1.pdf Retrospective Review of Agency Rules]<br />
*2015-1 [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Recommendation%20FINAL_0.pdf Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2017-3 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-3%20%28Plain%20Language%20in%20Regulatory%20Drafting%29.pdf Plain Language in Regulatory Drafting]<br />
*2017-6 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-6%20%28Learning%20from%20Regulatory%20Experience%29_0.pdf Learning from Regulatory Experience]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
</div><br />
===CRS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Maeve P. Carey, RL32240, ''The Federal Rulemaking Process: An Overview'' (June 17, 2013).<br />
*Maeve P. Carey, R41974, ''Cost-Benefit and Other Analysis Requirements in the Rulemaking Process'' (Dec. 9, 2014).<br />
*Vivian S. Chu & Daniel T. Shedd, R42720, ''Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues'' (Sept. 10, 2012).<br />
*Vivian S. Chu & Daniel T. Shedd, RS20846, ''Executive Orders: Issuance, Modification, and Revocation'' (Apr. 6, 2014).<br />
*Curtis Copeland, RL33862, ''Changes to the OMB Regulatory Review Process by Executive Order 13422'' (Jan. 3, 2008).<br />
*Curtis Copeland, RL32397, ''Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs'' (June 9, 2009).<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/RCED84-62, [https://www.gao.gov/assets/150/141408.pdf Cost-Benefit Analysis Can Be Useful in Assessing Environmental Regulations, Despite Limitations] (1984).<br />
*T-GGD-99-93, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-99-93/pdf/GAOREPORTS-T-GGD-99-93.pdf Federalism: Implementation of Executive Order 12612 in the Rulemaking Process] (1999).<br />
*GAO/T-GGD-99-131, [https://www.gao.gov/assets/110/108000.pdf Federalism: Previous Initiatives Have Had Little Effect on Agency Rulemaking] (1999).<br />
*GAO/ GGD-99-59, [https://www.gao.gov/assets/160/156562.pdf Regulatory Accounting: Analysis of OMB’s Reports on the Costs and Benefits of Federal Regulation] (1999).<br />
*GAO/GGD-94-28, [https://www.gao.gov/assets/220/218925.pdf Regulatory Burden: Recent Studies, Industry Issues, and Agency Initiatives] (1993).<br />
*GAO/GGD-97-2, [https://www.gao.gov/assets/160/155661.pdf Regulatory Burden: Measurement Challenges and Concerns Raised by Selected Companies] (1996).<br />
*GAO/RCED-98-142, [https://www.gao.gov/assets/160/156173.pdf Regulatory Reform: Agencies Could Improve Development, Documentation, and Clarity of Regulatory Economic Analysis] (1998).<br />
*GAO/GGD-98-31, [https://www.gao.gov/assets/230/225071.pdf Regulatory Reform: Changes Made to Agencies’ Rules Are Not Always Clearly Documented] (1998).<br />
*GAO/ PEMD-95-18BR, [https://www.gao.gov/assets/80/78970.pdf Regulatory Reform: Information on Costs, Cost-Effectiveness, and Mandated Deadlines for Regulations] (1995).<br />
*GAO-03-1015, [https://www.gao.gov/assets/240/239832.pdf Regulatory Takings: Implementation of Executive Order on Government Actions Affecting Private Property Use] (2003).<br />
*GAO-03-929, [https://www.gao.gov/assets/160/157476.pdf Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the Transparency of Those Reviews] (2003).<br />
*GAO-05-289, [https://www.gao.gov/assets/250/247171.pdf Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules] (2005).<br />
*GAO-09-205, [https://www.gao.gov/assets/290/288538.pdf Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews] (2009).<br />
*GAO-13-588, [https://www.gao.gov/assets/660/656488.pdf International Regulatory Cooperation: Agency Efforts Could Benefit from Increased Collaboration and Interagency Guidance] (2013).<br />
*GAO-14-423T, [https://www.gao.gov/assets/670/661540.pdf Federal Rulemaking: Regulatory Review Processes Could Be Enhanced] (2014).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes, but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-14-519, [https://www.gao.gov/assets/670/664872.pdf Environmental Regulation: EPA Should Improve Adherence to Guidance for Selected Elements of Regulatory Impact Analyses] (2014).<br />
*GAO-14-714, [https://www.gao.gov/assets/670/665745.pdf Federal Rulemaking: Agencies Included Key Elements of Cost-Benefit Analysis, but Explanations of Regulations’ Significance Could Be More Transparent] (2014).<br />
*GAO-15-368, [https://www.gao.gov/assets/670/669688.pdf Regulatory Guidance Processes: Selected Departments Could Strengthen Internal Control and Dissemination Practices] (2015).<br />
*GAO-15-718, [https://www.gao.gov/assets/680/672572.pdf Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees] (2015).<br />
*GAO-16-720, [https://www.gao.gov/assets/680/679518.pdf Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance] (2016).<br />
*GAO-18-22, [https://www.gao.gov/assets/690/687875.pdf Federal Regulations: Key Considerations for Agency Design and Enforcement Decisions] (2017).<br />
*GAO-18-183, [https://www.gao.gov/assets/700/690624.pdf Federal Rulemaking: OMB Should Work with Agencies to Improve Congressional Review Act Compliance During and at the End of Presidents’ Terms] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Office of Legal Counsel, ''Op. on Additional Procedures Concerning OIRA Reviews Under Executive Order Nos. 12,291 and 12,498''.<br />
*Office of Legal Counsel, Memorandum from Larry L. Simms, Acting Assistant Attorney General, [https://www.justice.gov/file/22586/download Proposed Executive Order Entitled “Federal Regulation,”] 5 Op. O.L.C. 59 (1981).<br />
*Council on Envtl. Quality, [https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (Dec. 10, 1997).<br />
*Envtl. Protection Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/contsetc.pdf The Benefits and Costs of the Clean Air Act, 1970-1990]—Draft Report for Congress (April 1997).<br />
*Nat’l Inst. of Standards & Tech., U.S. Dep’t of Commerce, [https://ws680.nist.gov/publication/get_pdf.cfm?pub_id=200118 Tenth Annual Report on Federal Agency Use of Voluntary Consensus Standards and Conformity Assessment] (2007).<br />
*Office of the Vice President, ''Creating a Government That Works Better and Costs Less, Improving Regulatory Systems'', National Performance Review (1993).<br />
*Statement #18, [https://www.acus.gov/sites/default/files/documents/OIRA%20Statement%20FINAL%20POSTED%2012-9-13.pdf Improving the Timeliness of OIRA Regulatory Review], 78 Fed. Reg. 76275 (Dec. 17, 2013).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''OIRA Thirtieth Anniversary Conference'', 63 Admin. L. Rev. (special ed.) (2011).<br />
*ABA Section of Admin. Law & Regulatory Practice, [https://www.americanbar.org/content/dam/aba/administrative/administrative_law/Final%20POTUS%20Report%2010-26-16.authcheckdam.pdf Report: Improving the Administrative Process: A Report to the President-Elect of the United] (2016), 69 Admin. L. Rev. 205 (2017).<br />
*Rebecca Adams, ''Regulating the Rule-Makers: John Graham at OIRA'', CQ Weekly 520 (Feb. 23, 2002).<br />
*Joseph E. Aldy, [https://www.acus.gov/sites/default/files/documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy] (Nov. 17, 2014) (report to ACUS).<br />
*Robert A. Anthony, ''Executive Order, OMB Bulletin Focus on Guidances'', 32 Admin. L. & Reg. News 10, Spring 2007.<br />
*William D. Araiza, ''Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking'', 54 Admin. L. Rev. 611 (2002).<br />
*Donald R. Arbuckle, ''Obscure But Powerful: Who Are Those Guys?'', 63 Admin. L. Rev. 131 (special ed.) (2011).<br />
*Nicholas Bagley & Richard L. Revesz, ''Centralized Oversight of the Regulatory State'', 106 Colum. L. Rev. 1260 (2006).<br />
*Stephen J. Balla, Jennifer M. Deets, & Forrest Maltzman, ''Outside Communications and OIRA Review of Agency Regulations'', 63 Admin. L. Rev. 149 (special ed.) (2011).<br />
*Rachel Bayefsky, Note, [https://www.yalelawjournal.org/pdf/1732.Bayefsky.1782_u52fptmb.pdf Dignity as a Value in Agency Cost-Benefit Analysis], 123 Yale L.J. 1732 (2014).<br />
*Josh Blackman, [https://illinoislawreview.org/wp-content/uploads/2018/03/Blackman.pdf Presidential Maladministration], 2018 U. Ill. L. Rev. 397 (2018).<br />
*James F. Blumstein, ''Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues'', 51 Duke L. J. 851 (2001).<br />
*Alexander Bolton, Rachel Augustine Potter, & Sharece Thrower, ''Organizational Capacity, Regulatory Review, and the Limits of Political Control'', 32 J. L. Econ. & Org. 242 (2016).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1490&context=mlr Inside the Administrative State: A Critical Look at the Practice of Presidential Control], 105 Mich. L. Rev. 47 (2006).<br />
*Lisa Schultz Bressman & Michael P. Vandenbergh, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1445&context=mlr Legitimacy, Selectivity, and the Disunitary Executive: A Reply to Sally Katzen], 105 Mich. L. Rev. 1511 (2007).<br />
*Harold H. Bruff, ''Presidential Management of Agency Rulemaking'', 57 Geo. Wash. L. Rev. 533 (1989).<br />
*Reeve T. Bull, ''Building a Framework for Governance: Retrospective Review and Rulemaking Petitions'', 67 Admin. L. Rev. 265 (2015).<br />
*Ming H. Chen, ''Administrator-in-Chief: The President and Executive Action in Immigration Law'', 69 Admin. L. Rev. 347 (2017).<br />
*John C. Coates IV, [https://www.yalelawjournal.org/pdf/a.882.Coates.1011_owe353wf.pdf Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications], 124 Yale L.J. 882 (2015).<br />
*Cary Coglianese, [http://yalejreg.com/moving-forward-with-regulatory-lookback/ Moving Forward with Regulatory Lookback], 30 Yale J. on Reg. Online 57 (2013).<br />
*Cary Coglianese, ''The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State'', 69 Admin. L. Rev. 43 (2017).<br />
*Cary Coglianese, [http://www.aulawreview.org/au_law_review/wp-content/uploads/2018/02/02-Coglianese_67AMULREV733.pdf Improving Regulatory Analysis at Independent Agencies], 67 Am. U. L. Rev. 733 (2018).<br />
*Daniel Cole, [https://www.law.ua.edu/pubs/lrarticles/Volume%2064/Issue%201/2%20Cole%2055%20-%2089.pdf Law, Politics, and Cost-Benefit Analysis], 64 Ala. L. Rev. 55 (2012).<br />
*John Conyers, Jr., Henry C. Johnson, Jr., & David N. Cicilline, [http://harvardjol.com/wp-content/uploads/2017/05/HLL201-1.pdf The Dangers of Legislating Based on Mythology: The Serious Risks Presented by the Anti-Regulatory Agenda of the 115th Congress and the Trump Administration], 54 Harv. J. on Legis. 365 (2017).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Final%20BCA%20Report%204-30-13.pdf Economic Analysis and Independent Regulatory Agencies] (Apr. 30, 2013) (report to ACUS).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Copeland%20Report%20CIRCULATED%20to%20Committees%20on%2010-21-13.pdf Length of Rule Reviews by the Office of Information and Regulatory Affairs] (Oct. 7, 2013) (report to ACUS).<br />
*Curtis Copeland, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2208&context=ulj The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking], 33 Fordham Urb. L.J. 1257 (2006).<br />
*Curtis W. Copeland, [https://www.acus.gov/sites/default/files/documents/Unified%20Agenda%20Draft%20Report%20041315%20FINAL_0.pdf The Unified Agenda: Proposals for Reform] (Apr. 13, 2015) (report to ACUS).<br />
*Robin Kundis Craig, ''The Bush Administration’s Use and Abuse of Rulemaking. Part I: The Rise of OIRA'', 28 Admin. & Reg. L. News 8 (Summer 2003).<br />
*Stephen Croley, ''White House Review of Agency Rulemaking: An Empirical Investigation'', 70 U. Chi. L. Rev. 821 (2003).<br />
*Nestor M. Davidson &. Ethan J. Lieb, [https://georgetownlawjournal.org/articles/64/regleprudence/pdf Regleprudence—At OIRA and Beyond], 103 Geo. L.J. 259 (2015).<br />
*Christopher C. DeMuth & Douglas H. Ginsburg, ''White House Review of Agency Rulemaking'', 99 Harv. L. Rev. 1075 (1986).<br />
*Christopher DeMuth, ''OIRA at Thirty'', 63 Admin. L. Rev. 15 (special ed.) (2011).<br />
*Caroline DeWitt, Comment, ''The Council on Competitiveness: Undermining the Administrative Procedure Act with Regulatory Review'', 6 Admin. L. J. Am. U. 759 (1993).<br />
*Susan E. Dudley, ''Observations on OIRA’s Thirtieth Anniversary'', 63 Admin. L. Rev. 113 (special ed.) (2011).<br />
*Susan E. Dudley, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1006&context=caselrev Improving Regulatory Accountability: Lessons From the Past and Prospects for the Future], 65 Case W. Res. L. Rev. 1027 (2015).<br />
*E. Donald Elliott, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4231&context=lcp TQM’ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It], 57 Law & Contemp. Probs. 167 (1994).<br />
*Blake Emerson & Cheryl Blake, [https://www.acus.gov/sites/default/files/documents/Plain%20Regulatory%20Drafting_Final%20Report.pdf Plain Language in Regulatory Drafting] (Dec. 8, 2017) (report to ACUS).<br />
*Jaclyn L. Falk, Comment, [https://cpb-us-w2.wpmucdn.com/usfblogs.usfca.edu/dist/7/272/files/2014/09/The-Behind-Closed-Door-Policy-Executive-Influence-in-the-Environmental-Protection-Agencys-Informal-Rulemaking.pdf The Behind Closed Door Policy: Executive Influence in the Environmental Protection Agency’s Informal Rulemaking], 47 U.S.F. L. Rev. 593 (2013).<br />
*Cynthia R. Farina, ''Undoing the New Deal Through the New Presidentialism'', 22 Harv. J. L. & Pub. Pol’y 227 (1998).<br />
*Scott Farrow, ''Improving Regulatory Performance: Does Executive Office Oversight Matter?'' (2001).<br />
*Arthur Fraas, ''Observations on OIRA’s Policies and Procedures'', 63 Admin. L. Rev. (special ed.) 79 (2011).<br />
*Arthur Fraas & Randall Lutter, ''On the Economic Analysis of Regulations at Independent Regulatory Commissions'', 63 Admin. L. Rev. 213 (special ed.) (2011).<br />
*Jody Freeman & Jim Rossi, [https://www.acus.gov/sites/default/files/documents/Freeman-Rossi-ACUS-Report-5-30-12-PDF.pdf Improving Coordination of Related Agency Responsibilities] (May 30, 2012) (report to ACUS).<br />
*William Funk “Agency Oversight by the Political Branches,” ch. 11 in Section on Administrative Law and Regulatory Practice, ''A Guide to Judicial and Political Review of Federal Agencies'' 259-304 (2d ed. Michael E. Herz, Richard Murphy & Kathryn Watts eds., 2015).<br />
*Margaret Gilhooley, [https://journals.iupui.edu/index.php/inlawrev/article/view/2956/2879 Executive Oversight of Administrative Rulemaking: Disclosing the Impact], 25 Ind. L. Rev. 299 (1991).<br />
*John D. Graham & Cory R. Liu, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_425_Graham_Liu-1.pdf Regulatory and Quasi-Regulatory Activity Without OMB and Cost-Benefit Review], 37 Harv. J.L. & Pub. Pol’y 425 (2014).<br />
*John D. Graham, Paul R. Noe & Elizabeth L. Branch, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2198&context=ulj Managing the Regulatory State: The Experience of the Bush Administration], 33 Fordham Urb. L. J. 953 (2006).<br />
*Wendy L. Gramm, ''Regulatory Review Issues, October 1985–February 1988'', 63 Admin. L. Rev. 27 (special ed.) (2011).<br />
*Abner S. Greene, ''Checks and Balances in an Era of Presidential Lawmaking'', 61 U. Chi. L. Rev. 123 (1994).<br />
*Robert W. Greene, [https://rutgerspolicyjournal.org/sites/jlpp/files/Greene.pdf Improving U.S. Financial Regulation Through OIRA Review & Robust Regulatory Analysis Standards], 14 Rutgers J.L. & Pub. Pol’y 89 (2016).<br />
*Sarah Grimmer, Note, ''Public Controversy Over Peer Review'', 57 Admin. L. Rev. 275 (2005).<br />
*Zachary J. Gubler, [https://www.acus.gov/sites/default/files/documents/ZGubler%20ACUS%20Final%20Report%2811-17%29.pdf Regulatory Experimentation] (Nov. 17, 2017) (report to ACUS).<br />
*Hiba Hafiz, [http://wisconsinlawreview.org/wp-content/uploads/2018/01/Hafiz-Final.pdf Economic Analysis of Labor Regulation], 2017 Wis. L. Rev. 1115 (2017).<br />
*Robert W. Hahn, Risks, ''Costs, and Lives Saved: Getting Better Results From Regulation'', (Oxford Univ. Press & AEI Press, 1996).<br />
*Robert W. Hahn & John A. Hird, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1177&context=yjreg The Costs and Benefits of Regulation: Review and Synthesis], 8 Yale J. on Reg. 233 (1991).<br />
*Lisa Heinzerling, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2202&context=ulj Statutory Interpretation in the Era of OIRA], 33 Fordham Urb. L. J. 1097 (2006).<br />
*Lisa Heinzerling, [https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1741&context=pelr Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House], 31 Pace Envtl. L. Rev. 325 (2014).<br />
*Thomas D. Hopkins, ''The Evolution of OIRA Oversight—CWPS to OIRA'', 63 Admin. L. Rev. 71 (special ed.) (2011).<br />
*Elena Kagan, ''Presidential Administration'', 114 Harv. L. Rev. 2245 (2001).<br />
*Sally Katzen, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1444&context=mlr A Reality Check on an Empirical Study: Comments on “Inside the Administrative State,”] 105 Mich. L. Rev. 1497 (2007).<br />
*Sally Katzen, ''OIRA at Thirty: Reflections and Recommendations'', 63 Admin. L. Rev. 103 (special ed.) (2011).<br />
*Cornelius M. Kerwin & Scott R. Furlong, ''Rulemaking: How Government Agencies Write Law and Make Policy'' (CQ Press, 4th ed. 2011).<br />
*Peter Ketcham-Colwill, [https://www.gwlr.org/wp-content/uploads/2018/02/82-Geo.-Wash.-L.-Rev.-1622.pdf Presidential Influence Over Agency Rulemaking Through Regulatory Review], 82 Geo. Wash. L. Rev. 1622 (2014).<br />
*Robert E. Litan & William D. Nordhaus, ''Reforming Federal Regulation'' (Yale Univ. Press, 1983).<br />
*Michael A. Livermore, [http://uchicagolawjournalsmshaytiubv.devcloud.acquia-sites.com/sites/lawreview.uchicago.edu/files/Livermore_Art.pdf Cost-Benefit Analysis and Agency Independence], 81 U. Chi. L. Rev. 609 (2014).<br />
*Michael A. Livermore & Richard L. Revesz, [https://georgetownlawjournal.org/articles/119/regulatory-review-capture-agency/pdf Regulatory Review, Capture, and Agency Inaction], 101 Geo. L.J. 1337 (2013)<br />
*Jeffrey S. Lubbers, ''A Guide to Federal Agency Rulemaking'' (ABA Section of Admin. Law & Regulatory Practice, 5th ed. 2012).<br />
*Jeffrey S. Lubbers, ''OMB to Require Peer Review for Regulatory Science Documents'', 29 Admin. L. & Reg. News 3, Fall 2003.<br />
*Maureen Mahon, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1179&context=law_lawreview Proceed With Caution: The Implications of the OMB Peer Review Guidelines on Precautionary Legislation], 84 Wash. U. L. Rev. 461 (2006).<br />
*Jonathan S. Masur & Eric A. Posner, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4712&context=clr Unquantified Benefits and the Problem of Regulation Under Uncertainty], 102 Cornell L. Rev. 87 (2016).<br />
*Randolph J. May, ''OMB’s Peer Review Proposal—Swamped by Science?'', 29 Admin. & Reg. L. News 4, Spring 2004.<br />
*Michael McCarthy, [https://www.acus.gov/sites/default/files/documents/International-Reg-Cooperation-Report.pdf International Regulatory Cooperation, 20 Years Later: Updating ACUS Recommendation 91-1] (Oct. 19, 2011) (report to ACUS).<br />
*Thomas O. McGarity, ''Presidential Control of Regulatory Agency Decisionmaking'', 36 Am. U. L. Rev. 443 (1987).<br />
*Thomas O. McGarity, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1538&context=dlj Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age], 61 Duke L.J. 1671 (2012).<br />
*Patrick A. McLaughlin & Jerry Ellig, ''Does OIRA Review Improve the Quality of Regulatory Impact Analysis? Evidence from the Final Year of the Bush II Administration'', 63 Admin. L. Rev. 179 (special ed.) (2011).<br />
*Emily Hammond Meazell, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1539&context=dlj Presidential Control, Expertise, and the Deference Dilemma], 61 Duke L.J. 1763 (2012).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1208&context=articles Disclosing “Political” Oversight of Agency Decision Making], 108 Mich. L. Rev. 1127 (2010).<br />
*Nina Mendelson, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Mendelson_May.pdf Another Word on the President’s Statutory Authority over Agency Action], 79 Fordham L. Rev. 2455 (2011).<br />
*Nina A. Mendelson & Jonathan B. Wiener, [http://harvardjlpp.wpengine.com/wp-content/uploads/2014/05/37_2_447_Mendelson_Wiener.pdf Responding to Agency Avoidance of OIRA], 37 Harv. J.L. & Pub. Pol’y 447 (2014).<br />
*Gillian E. Metzger & Kevin M. Stack, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mlr Internal Administrative Law], 115 Mich. L. Rev. 1239 (2017).<br />
*James C. Miller III, ''The Early Days of Reagan Regulatory Relief and Suggestions for OIRA’s Future'', 63 Admin. L. Rev. 93 (special ed.) (2011).<br />
*Alan B. Morrison, ''OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation'', 99 Harv. L. Rev. 1059 (1986).<br />
*William A. Niskanen, ''Clinton Regulation Will Be “Rational”: Interview with Sally Katzen, the New OIRA Administrator'', Regulation Magazine No. 3, at 36 (1993).<br />
*Lars Noah, ''Peer Review and Regulatory Reform'', 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,606 (2000).<br />
*Paul Noe, ''Analyzing the Destruction of Human Capital by Regulations'', 63 Admin. L. Rev. 203 (special ed.) (2011).<br />
*Note, ''Regulatory Analyses and Judicial Review of Informal Rulemaking'', 91 Yale L. J. 739 (1982).<br />
*Note, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol124_%20OIRA%20_avoidance.pdf OIRA Avoidance], 124 Harv. L. Rev. 994 (2011).<br />
*Note, ''The Inflation Impact Statement Program: An Assessment of the First Two Years'', 26 Am. U. L. Rev. 1138 (1977).<br />
*Jennifer Nou, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_nou.pdf Agency Self-Insulation Under Presidential Review], 126 Harv. L. Rev. 1755 (2013).<br />
*Jennifer Nou & Edward H. Stiglitz, [https://southerncalifornialawreview.com/wp-content/uploads/2018/01/89_733.pdf Strategic Rulemaking Disclosure], 89 S. Cal. L. Rev. 733 (2016).<br />
*Anne Joseph O’Connell, [http://www.virginialawreview.org/sites/virginialawreview.org/files/889.pdf Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State], 94 Va. L. Rev. 889 (2008).<br />
*Erik D. Olson, ''The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291'', 4 Va. J. Nat. Resources L. 1 (1984).<br />
*Eloise Pasachoff, [https://www.yalelawjournal.org/pdf/a.2182.Pasachoff.2290_aqo1aub4.pdf The President’s Budget as a Source of Agency Policy Control], 125 Yale L.J. 2182 (2016).<br />
*Robert V. Percival, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1148&context=dlj Presidential Management of the Administrative State: The Not-So-Unitary Executive], 51 Duke L. J. 963 (2001).<br />
*Robert V. Percival, [http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_79/Percival_May.pdf Who’s in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?], 79 Fordham L. Rev. 2487 (2011).<br />
*Richard J. Pierce, Jr., [http://www.nyujlpp.org/wp-content/uploads/2016/06/Pierce-Regulatory-Budget-Debate-19nyujlpp249.pdf The Regulatory Budget Debate], 19 N.Y.U. J. Legis. & Pub. Pol’y 249 (2016).<br />
*Eric A. Posner & E. Glen Weyl, [https://www.yalelawjournal.org/pdf/Posner-WeylPDF_ijby4z9e.pdf Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms], 124 Yale L.J. Forum 246 (2015).<br />
*Robert L. Rabin, ''Federal Regulation in Historical Perspective'', 38 Stan L. Rev. 1189 (1986).<br />
*Richard L. Revesz, [http://yalejreg.com/articlepdfs/34-JREG-545.pdf Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation], 34 Yale J. On Reg. 545 (2017).<br />
*Richard L. Revesz, [http://www.californialawreview.org/wp-content/uploads/2014/12/02-Revesz.pdf Quantifying Regulatory Benefits], 102 Cal. L. Rev. 1423 (2014).<br />
*Richard L. Revesz & Michael A. Livermore, ''Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health'' (Oxford Univ. Press 2008).<br />
*Delissa Ridgway et al., ''The Council on Competitiveness and Regulatory Review: A “Kinder, Gentler” Approach to Regulation?'', 6 Admin. L. J. Am. U. 691 (1993).<br />
*David B. Rivkin, ''The Unitary Executive and Presidential Control of Executive Branch Rulemaking'', 7 Admin. L. J. Am. U. 309 (1993).<br />
*Morton Rosenberg, ''Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking Under Executive Order 12,291'', 80 Mich. L. Rev. 193 (1981).<br />
*Arden Rowell, [https://www.law.uci.edu/lawreview/vol4/no4/Rowell.pdf Time in Cost-Benefit Analysis], 4 UC Irvine L. Rev. 1215 (2014).<br />
*Susan Rose-Ackerman, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1153&context=umlr Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review], 65 U. Miami L. Rev. 335 (2011).<br />
*Andrew Rudalevige, [http://lawreview.syr.edu/wp-content/uploads/2015/09/G-Rudalevige-For-Website.pdf Old Laws, New Meanings: Obama’s Brand of Presidential “Imperialism”], 66 Syracuse L. Rev. 1 (2016).<br />
*J.B. Ruhl & James Salzman, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1170&context=law_lawreview In Defense of Regulatory Peer Review], 84 Wash. U. L. Rev. 1 (2006).<br />
*Thomas O. Sargentich, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/The-Emphasis-on-the-Presidency-in-U.S.-Public-Law-An-Essay-Critiquing-Presidential-Administration.pdf The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration], 59 Admin. L. Rev. 1 (2007).<br />
*Peter M. Shane, ''Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking'', 48 Ark. L. Rev. 161 (1995).<br />
*David R. Sheaffer, [https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1178&context=lr The Price of Regulation: Rethinking Executive Review of Agency Rulemaking], 2016 Mich. St. L. Rev. 1091 (2016).<br />
*Sidney Shapiro, [https://www.acus.gov/sites/default/files/documents/gov.acus_.1995.rec_.95-3.pdf Agency Review of Existing Regulations] (Jan. 15, 1995) (report to ACUS).<br />
*Sidney A. Shapiro, ''OMB’s Dubious Peer Review Procedures'', 34 Envtl. L. Rep. (Envtl. L. Inst.) 10,064 (2004).<br />
*Sidney A. Shapiro, ''OMB’s Revised Peer Review Bulletin'', 29 Admin. L. & Reg. News 10 (Summer 2004).<br />
*Sidney A. Shapiro & Richard Murphy, [https://lawreview.law.ucdavis.edu/issues/48/4/Articles/48-4_Shapiro-Murphy.pdf Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation], 48 U.C. Davis L. Rev. 1457 (2015).<br />
*Sidney A. Shapiro & Ronald F. Wright, [https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1160&context=umlr The Future of the Administrative Presidency: Turning Administrative Law Inside-Out], 65 U. Miami L. Rev. 577 (2011).<br />
*Stuart Shapiro, ''OIRA Inside and Out'', 63 Admin. L. Rev. 135 (special ed.) (2011).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Stuart Shapiro & Debra Borie-Holtz, ''The Politics of Regulatory Reform'' (Routledge 2013).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS).<br />
*Peter L. Strauss, ''Overseer or “The Decider”? The President in Administrative Law'', 75 Geo. Wash. L. Rev. 696 (2007).<br />
*Peter L. Strauss, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1010&context=caselrev The President and the Constitution], 65 Case W. Res. L. Rev. 1151 (2015).<br />
*Peter L. Strauss & Cass R. Sunstein, ''The Role of the President and OMB in Informal Rulemaking'', 38 Admin. L. Rev. 181 (1986).<br />
*Cass R. Sunstein, Simpler: ''The Future of Government'' (Simon & Schuster, 2013).<br />
*Cass R. Sunstein, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_sunstein.pdf The Office of Information and Regulatory Affairs: Myths and Realities], 126 Harv. L. Rev. 1838 (2013).<br />
*Cass R. Sunstein, [http://www.bu.edu/bulawreview/files/2014/08/SUNSTEINDYSFUNCTION.pdf The Regulatory Lookback], 94 B.U. L. Rev. 579 (2014).<br />
*Jim Tozzi, ''OIRA’s Formative Years: The Historical Record of Centralized Regulatory Review Preceding OIRA’s Founding'', 63 Admin. L. Rev. 37 (special ed.) (2011).<br />
*Paul R. Verkuil, ''Jawboning Administrative Agencies: Ex Parte Contacts by the White House'', 80 Colum. L. Rev. 943 (1980).<br />
*Christopher J. Walker, ''Modernizing the Administrative Procedure Act'', 69 Admin. L. Rev. 629 (2017).<br />
*Adam L. Warber, ''Executive Orders and the Modern Presidency: Legislating from the Oval Office'' (Lynne Reiner Publishers 2006).<br />
*Kathryn A. Watts, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1240&context=mlr Controlling Presidential Control], 114 Mich. L. Rev. 683 (2016).<br />
*Christopher E. Wilson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Not-Good-Enough-for-Government-Work-How-OMBs-Good-Guidance-Practices-May-Unintentionally-Complicate-Administrative-Law.pdf Comment: Not Good Enough for Government Work: How OMB’s Good Guidance Practices May Unintentionally Complicate Administrative Law], 59 Admin. L. Rev. 177 (2007).<br />
</div><br />
<br />
===Miscellaneous===<br />
<br />
*National Academy of Public Administration, ''Presidential Management of Rulemaking in Regulatory Agencies'' (1987).<br />
*[http://www.thecre.com/ombpapers/featuredarticles.html Center for Regulatory Effectiveness].<br />
*Competitive Enterprise Institute, [https://cei.org/10KC Ten Thousand Commands].</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Regulatory_Flexibility_Act&diff=1683Regulatory Flexibility Act2023-08-15T21:19:55Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. [http://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter6&edition=prelim §§ 601-612] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg1164.pdf Pub. L. No. 96-354], 94 Stat. 1,164-1,170, Sept. 19, 1980; amended by the Small Business Regulatory Enforcement Fairness Act of 1996, [https://www.govinfo.gov/content/pkg/PLAW-104publ121/pdf/PLAW-104publ121.pdf Pub. L. No. 104-121], Title II, §§ 241-245, 110 Stat. 864, Mar. 29, 1996.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.sba.gov/advocacy U.S. Small Business Administration, Office of Advocacy]<br />
<br />
==Overview==<br />
===Requirements===<br />
The Regulatory Flexibility Act (Reg Flex Act) requires agencies to consider the special needs and concerns of small entities whenever they engage in rulemaking subject to the notice-and-comment requirements of the [[Administrative Procedure Act]] (APA) or other laws. In 1996, the Reg Flex Act’s coverage was expanded to include interpretive rules promulgated by the Internal Revenue Service (IRS) that contain small entity information collection requirements. Each time an agency publishes a proposed rule (or IRS interpretive rule) in the ''Federal Register'', it must prepare and publish a regulatory flexibility analysis (RFA) describing the impact of the proposed rule on small entities (including small businesses, organizations, and governmental jurisdictions), unless the agency head certifies that the proposed rule will not “have a significant economic impact on a substantial number of small entities.”<br />
<br />
The initial RFA, like the proposed rule itself, is subject to public comment, and the agency is encouraged to facilitate participation by small entities by providing actual notice of the proceeding to affected small entities, holding conferences and public hearings on the proposed rule as it affects small entities, and transmitting copies of its initial RFA to the Chief Counsel for Advocacy of the Small Business Administration (SBA).<br />
<br />
Additional procedures are required to ensure small entities comment whenever the Environmental Protection Agency (EPA), the Occupational Health and Safety Administration (OSHA), or the Consumer Financial Protection Bureau (CFPB) promulgate rules. Prior to the publication of the initial RFA, these agencies must notify and provide the Chief Counsel with information regarding the potential impact of the proposed rule on small entities. The Chief Counsel then identifies individuals to represent small entities and gather comments and suggestions on the proposed rule. These agencies must also convene a regulatory review panel, consisting of employees from that agency, the Office of Management and Budget (OMB), and the Chief Counsel, to report on the agency’s information and small entity representatives’ comments and recommendations. This information becomes part of the rulemaking record, which can provide a basis for the agency to amend its initial proposed rule or RFA. The final rule adopted by any agency must be published with a final RFA that summarizes and responds to significant issues raised by the comments received.<br />
<br />
The Reg Flex Act does not mandate any particular outcome in rulemaking; it encourages, but does not require, the “tiering” of government regulations through a number of techniques designed to make them less burdensome to small entities. An agency’s initial RFA must identify any “significant alternatives” to the proposed regulation that might achieve its goals while minimizing the impact on small entities. Approaches suggested in the statute include modifying compliance or reporting timetables, simplifying compliance or reporting requirements, using performance rather than design standards, and exempting small entities from certain requirements. The final RFA must explain why any such significant alternatives to the rule were not adopted and the steps taken by the agency to minimize the effects of the rule on small entities.<br />
<br />
Agencies must publish semiannual regulatory agendas identifying upcoming and current rulemaking proposals that are “likely to have a significant economic impact on a substantial number of small entities” (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section602&num=0&edition=prelim § 602(a)(1)]). In addition, the Reg Flex Act directs agencies to apply regulatory flexibility analysis to their existing rules, initially evaluating them over a 10-year period and reviewing them periodically.<br />
<br />
In 2002, President Bush signed Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking]. For the most part, the Order simply restates the requirements of the Reg Flex Act. In addition, it gives prominence to the role of the Chief Counsel for Advocacy of the SBA and specifically requires that an agency provide the Chief Counsel with a draft of any proposed rule that may have a significant economic impact on a substantial number of small entities at the same time the agency provides it to the Office of Information and Regulatory Affairs (OIRA) under Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review], or, if the draft is not required to be sent to OIRA, at a reasonable time prior to publication of the proposed rule. The Chief Counsel not only advises agencies as to his views on proposed rules, he also has from time-to-time participated in litigation as an amicus curiae in support of challenges to agency rules.<br />
<br />
It should be noted that the Small Business Regulatory Enforcement Fairness Act of 1996 also contained provisions concerning “regulatory compliance simplification,” requiring agencies to prepare compliance guides and answer inquiries on compliance from small entities. It also required certain “regulatory enforcement reforms,” including the establishment (within the SBA) of a [https://www.sba.gov/ombudsman Small Business and Agriculture Enforcement Ombudsman] and [https://www.sba.gov/ombudsman/fairness-boards Regional Small Business Regulatory Fairness Boards], and authorization for agencies to waive civil money penalties assessed on small entities in certain circumstances.<br />
<br />
===Coverage===<br />
The Reg Flex Act’s limitations are important. It does not apply to the vast amount of administrative activity that is not rulemaking, from adjudication to the large variety of informal actions. Except for the limited set of IRS interpretive rules, the Reg Flex Act also does not reach rulemaking that is not subject to notice-and-comment, such as interpretive rules and other rules exempt from notice and comment by the provisions of [http://uscode.house.gov/view.xhtml?req=(title:5%20section:553%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section553)&f=treesort&edition=prelim&num=0&jumpTo=true § 553] of the APA. ''See, e.g.'', [http://cdn.ca9.uscourts.gov/datastore/opinions/2006/07/05/0535970.pdf Or. Trollers Ass’n v. Gutierrez], 452 F.3d 1104 (9th Cir. 2006).<br />
<br />
===Judicial Review===<br />
As originally enacted, the Reg Flex Act expressly prohibited judicial review of agency compliance with any of its requirements. Echoing the statutory language, most courts limited review to a determination under the APA of the reasonableness of a final rule based on the record before the agency, which included the RFA and any comments from small entities expressing the hardships associated with a proposed rule. ''See, e.g.'', ''Michigan v. Thomas'', 805 F.2d 176 (6th Cir. 1986); ''Thompson v. Clark'', 741 F.2d 401 (D.C. Cir. 1984).<br />
<br />
In 1996, after noting that agencies were too often ignoring the requirements of the Reg Flex Act, Congress amended it to provide judicial review of certain of the Reg Flex Act’s provisions, but such suits may only be brought by small entities, as defined in the Reg Flex Act, that are adversely affected or aggrieved by a final agency action. ''See'' [https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv1253-27 W. Wood Preservers Inst. v. McHugh], 925 F. Supp. 2d 63 (D.D.C. 2013). Moreover, the Reg Flex Act expressly provides that agency compliance or noncompliance with any provision of the Reg Flex Act can be reviewed only as provided in the Reg Flex Act. ''See, e.g.'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/74974D6C85377E9B85257A250050DB5C/$file/10-1183-1380223.pdf Nat’l Ass’n of Home Builders v. EPA], 682 F.3d 1032 (D.C. Cir. 2012). Without limiting the possibilities for relief, the Reg Flex Act specifies the additional possibility of deferring enforcement against small entities while leaving the rule in place for non-small entities.<br />
<br />
Courts are instructed to conduct their review in accordance with [http://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter7&edition=prelim chapter 7] of the APA. The courts have recognized that the Reg Flex Act’s requirements for an initial and final regulatory flexibility analysis are purely procedural. ''See, e.g.'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/12DB294E32B72A1385256F7A00641E85/$file/00-1072a.txt U.S. Cellular Corp. v. FCC], 254 F.3d 78, 88 (D.C. Cir. 2001). In assessing compliance with those procedural requirements, courts have held that the standard of review is one of reasonableness, meaning that the agency must have made a reasonable, good-faith effort to carry out the requirements of the statute. ''Associated Fisheries of Me., Inc. v. Daley'', 127 F.3d 104, 114 (1st Cir. 1997); ''see also'' ''S. Offshore Fishing Ass’n v. Daley'', 995 F. Supp. 1411 (M.D. Fl. 1998). Under the reasonableness standard, an agency need only consider significant alternatives to a rule, rather than all alternatives, when doing a final RFA. ''Associated Fisheries'', 127 F.3d at 116. Similarly, an agency must make a reasonable effort to facilitate participation by small entities, but the method and manner of accomplishing this is left to agency discretion, since the Reg Flex Act only offers suggestions. ''Id.'' at 117. ''Southern Offshore'' applied the reasonableness standard and concluded that the agency’s certification of no significant economic impact on a substantial number of small entities was unsatisfactory because the evidence contradicted many of the assumptions upon which the certification was based. ''Southern Offshore'', 995 F. Supp. at 1436.<br />
<br />
Several cases have involved challenges to the adequacy of an agency certification of no significant impact or final RFA by claiming that the agency failed to consider the effects of the proposed rule on a particular entity. The first, ''Mid-Tex Electric Cooperative, Inc. v. FERC'', 773 F.2d 327 (D.C. Cir. 1985), determined that the certification was appropriate because the agency need only consider the rule’s direct impact on regulated entities and not the indirect impacts of the rule on entities not regulated by the agency. More recent cases have affirmed ''Mid-Tex''’s holding. ''See, e.g.'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/EF8395F2EE4D5B1985256F7A006441F7/$file/99-1457a.txt Cement Kiln Recycling Coal. v. EPA], 255 F.3d 855 (D.C. Cir. 2001); [https://www.cadc.uscourts.gov/internet/opinions.nsf/2C84DF90A90B8E4D85256F12006E50F5/$file/96-1392a.txt Motor & Equip. Mfs. Ass’n v. Nichols], 142 F.3d 449, 467 (D.C. Cir. 1998); ''United Distribution Cos. v. FERC'', 88 F.3d 1105, 1170 (D.C. Cir. 1996); ''State of Colo. ex rel. Colo. State Banking Bd. v. Resolution Trust'', 926 F.2d 931 (10th Cir. 1991). ''But see'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/B46FDD11B39FE4E68525744000455588/$file/06-1091a.pdf Aeronautical Repair Station Ass’n, Inc. v. FAA], 494 F.3d 161 (D.C. Cir. 2007).<br />
<br />
In addition, when determining whether an impacted entity is a “small entity,” the agency is required to use the definitions found in the Reg Flex Act, the references made therefrom to the Small Business Act (15 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section632&num=0&edition=prelim § 632]) and definitions promulgated by the Small Business Association (13 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=1ec2a07c3f665fc09f989c1af8524f49&mc=true&node=se13.1.121_1201&rgn=div8 § 121.201]). ''Nw. Mining Ass’n v. Babbitt'', 5 F. Supp. 2d 9 (D.D.C. 1998).<br />
<br />
==Legislative History==<br />
===95th Congress===<br />
The Reg Flex Act was introduced originally as S. 1974 by Senators John Culver and Gaylord Nelson. Hearings on S. 1974 as amended were held on October 7, 1977, and August 23, 1978, before the Senate Subcommittee on Administrative Practice and Procedure, which unanimously reported S. 1974 to the Judiciary Committee on September 9, 1978. The Senate passed the bill on October 14, 1978. In the House of Representatives, H.R. 11376, the companion bill to S.1974, was introduced on March 8, 1978, by Representatives Robert Kastenmeier and Alvin Baldus, but no further action was taken.<br />
<br />
===96th Congress===<br />
On January 31, 1979, Senator Culver reintroduced his original bill as S. 299. Three similar bills were introduced in the House of Representatives: H.R. 1971 (companion bill to S. 299, on February 8, 1979), H.R. 1745 (a similar bill, but cast as an amendment to the Small Business Act, on January 31, 1979) and H.R. 4660 (an expansion of H.R. 1745, on June 28). The last bill became the principal bill in the House.<br />
<br />
After extensive hearings, the Senate bill, S. 299, passed the Senate on August 6, 1980, in the form of a substitute, imprinted amendment intended to recodify the bill from 5 U.S.C. §§ 551, 552 to a new chapter within title 5 (sections 601-612). ''See'' Senate “Description of Major Issues” accompanying the amendment at 126 Cong. Rec. S 10,934-43 (daily ed. Aug. 6, 1980).<br />
<br />
On September 8, 1980, the House of Representatives passed the Senate passed version of S. 299 without amendment. The House held no separate hearings on the Senate bill; rather it simply adopted the Senate’s “Description of Major Issues” and section-by-section analysis. The House did offer its own three-page “Discussion of the Issues.” 126 Cong. Rec. H 8468-70 (daily ed. Sept. 8, 1980).<br />
<br />
President Carter signed the bill into law on September 19, 1980.<br />
<br />
===103rd Congress===<br />
Although Congress repeatedly held hearings on the Reg Flex Act and the effects of regulation on small entities, no amendments were proposed until the 103rd Congress. ''See'' ''Oversight of Regulatory Flexibility Act (Part 1)'': Hearings Before the Subcomm. on Exp. Opportunities and Special Small Bus. Problems of the H. Small Bus. Comm., 97th Cong. (1981). Representative Thomas Ewing introduced the Regulatory Flexibility Act Amendments of 1993 as [https://www.congress.gov/103/bills/hr830/BILLS-103hr830ih.pdf H.R. 830]. Although H.R. 830 had over 250 cosponsors, the bill never progressed beyond the House Subcommittee on Administrative Law and Governmental Relations. The Senate passed a similar bill as an amendment to S. 4, which was considered in the House, H.R. 820, but this too failed to pass.<br />
<br />
===104th Congress===<br />
The Small Business Regulatory Enforcement Fairness Act of 1996 was originally introduced on June 16, 1995, by Senator Kit Bond as [https://www.congress.gov/104/bills/s942/BILLS-104s942rfh.pdf S. 942]. It was referred to the Committee on Small Business, and hearings were held on February 28, 1996 (S. Hrg. 104-443). The Senate passed S. 942, as amended, on March 19, 1996. Three days later, the House began considering the measure as part of the Contract with America Advancement Act ([https://www.congress.gov/104/plaws/publ121/PLAW-104publ121.pdf H.R. 3136]). The bill was referred to the House Committees on Ways and Means, Budget, Rules, the Judiciary, Small Business, and Government Reform and Oversight for consideration. On March 27, the House Rules Committee reported up a resolution, [https://www.congress.gov/104/bills/hres391/BILLS-104hres391eh.pdf H.R. Res. 391], which provided for the consideration of H.R. 3136. [https://www.congress.gov/104/crpt/hrpt500/CRPT-104hrpt500.pdf H.R. Rep. 104-500] (1996). The next day, both the resolution and the bill passed the House, and the bill was read and passed without amendment by the Senate. President Clinton signed the bill into law on March 29, 1996.<br />
<br />
The most extensive discussion of the Reg Flex Act’s original provisions is Paul Verkuil, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2804&context=dlj Critical Guide to the Regulatory Flexibility Act], 1982 Duke L.J. 213 (1982). Although it does not include a discussion of the 1996 Amendments, the ''Guide'' may still be useful in some regard since the Amendments changed very little of the previous substantive requirements of the Reg Flex Act. The annual reports issued by the Small Business Administration’s Office of Advocacy contain a wealth of information on agency implementation of the Reg Flex Act, as well as on the Reg Flex Act’s strengths and weaknesses as identified by that Office. These reports, along with a host of other Regulatory Flexibility Act documents, can be found on the [https://advocacy.sba.gov/category/resources/annual-report-on-the-rfa/ Office of Advocacy’s website].<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''The Regulatory Flexibility Act'', Hearing Before the Subcomm. on Admin. Practices and Procedures of the S. Comm. on the Judiciary, 95th Cong. (1977).<br />
*''The Regulatory Flexibility Act'', J. Hearing Before the Subcomm. on Admin. Practice and Procedure, S. Comm. on the Judiciary and S. Select Comm. on Small Bus., 95th Cong. (1978).<br />
*S. Rep. No. 1322 (1978).<br />
*''Regulatory Reform'', Hearing Before the Subcomm. on Admin. Practice and Procedure of the S. Comm. on the Judiciary, 96th Cong. (1979).<br />
*H. Rep. No. 519 (1979).<br />
*''President’s Statement on Senate Approval of S.299'', 16 Weekly Comp. Pres. Doc. 1,508 (Aug. 6, 1980).<br />
*S. Rep. No. 878 (1980).<br />
*''Regulatory Flexibility Act'', J. Hearing Before the Subcomm. on Regulatory Reform, S. Comm. on the Judiciary and Subcomm. on Gov’t Regulation and Paperwork, S. Comm. on Small Bus., 97th Cong. (1982).<br />
*''Regulatory Reform Initiatives'', Hearing Before the S. Comm. on Gov’tal Affairs, 100th Cong. (1988).<br />
*''S.917 and S.942: Implementing the White House Conference on Small Business–Recommendations on Regulations and Paperwork'', Hearing Before the S. Small Business Comm., 104th Cong. (1996).<br />
*Providing for the Consideration of H.R. 3136, The Contract with America Advancement Act of 1996, [https://www.govinfo.gov/content/pkg/CRPT-104hrpt500/pdf/CRPT-104hrpt500.pdf H.R. Rep. No. 104-500] (1996).<br />
*''The Regulatory Flexibility Act: Are Federal Agencies Using “Good Science” in Their Rule Making?'', J. Hearing Before the Subcomm. on Gov’t Programs and Oversight, Subcomm. on Regulation Reform and Paperwork Reduction of the H. Comm. on Small Bus., 105th Cong. (1997).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg65907/pdf/CHRG-112hhrg65907.pdf Reducing Federal Agency Overreach: Modernizing the Regulatory Flexibility Act]'','' H. Comm. on Small Bus., 112th Cong. (2011).<br />
*<nowiki/><nowiki/><nowiki/><nowiki/><nowiki/><nowiki/><nowiki/><nowiki/>[https://www.govinfo.gov/content/pkg/CHRG-112hhrg77558/pdf/CHRG-112hhrg77558.pdf Regulatory Flexibility Act Compliance: Is EPA Failing Small Businesses?], Hearing Before H. Comm. on Small Bus., 112th Cong. (2012).<br />
*<nowiki/><nowiki/><nowiki/><nowiki/>[https://www.govinfo.gov/content/pkg/CRPT-114hrpt14/pdf/CRPT-114hrpt14.pdf H.R. Rep. No. 114–14] (2015).<br />
</div><br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*Executive Order 13272, [https://www.govinfo.gov/content/pkg/FR-2002-08-16/pdf/02-21056.pdf Proper Consideration of Small Entities in Agency Rulemaking], 67 Fed. Reg. 53461 (Aug. 13, 2002).<br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2012-1, [https://www.acus.gov/recommendation/regulatory-analysis-requirements Regulatory Analysis Requirements]<br />
*2013-2, [https://www.acus.gov/recommendation/benefit-cost-analysis-independent-regulatory-agencies Benefit-Cost Analysis at Independent Regulatory Agencies]<br />
*2014-5, [https://www.acus.gov/recommendation/retrospective-review-agency-rules Retrospective Review of Agency Rules]<br />
*2015-1, [https://www.acus.gov/recommendation/promoting-accuracy-and-transparency-unified-agenda Promoting Accuracy and Transparency in the Unified Agenda]<br />
*2019-5, [https://www.acus.gov/recommendation/agency-economists Agency Economists]<br />
*2021-3, [https://www.acus.gov/recommendation/early-input-regulatory-alternatives Early Input on Regulatory Alternatives]<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/HRD-9116, [https://www.gao.gov/assets/220/213490.pdf Regulatory Flexibility Act: Inherent Weaknesses May Limit Its Usefulness for Small Governments] (1991).<br />
*GAO/GGD-94-105, [https://www.gao.gov/assets/220/219465.pdf Regulatory Flexibility Act: Status of Agencies’ Compliance] (1994).<br />
*GAO/T-GGD-95-112, [https://www.gao.gov/assets/110/105880.pdf Regulatory Flexibility Act: Status of Agencies’ Compliance: Report to Congress] (1995).<br />
*GAO-GGD-OGC-97-77R, [https://www.gao.gov/assets/90/86361.pdf Regulatory Flexibility Act: Agencies’ Use of the November 1996 Unified Agenda Did Not Satisfy Notification Requirements] (1997).<br />
*GGD-98-61R, [https://www.gao.gov/assets/90/87335.pdf Regulatory Flexibility Act: Agencies’ Use of the October 1997 Unified Agenda Often Did Not Satisfy Notification Requirements] (1998).<br />
*GAOGGD-98-75, [https://www.gao.gov/assets/110/107307.pdf Regulatory Flexibility Act: Implementation of the Small Business Advocacy Review Panel Requirements] (1998).<br />
*GAO-GGD-99-55, [https://www.gao.gov/assets/230/227145.pdf Regulatory Flexibility Act: Agencies’ Interpretations of Review Requirements Vary] (1999).<br />
*GAO-GGD-00193, [https://www.gao.gov/assets/240/230791.pdf Regulatory Flexibility Act: Implementation in EPA Programs Office and Proposed Lead Rule] (2000).<br />
*GAO-01-669T, [https://www.gao.gov/assets/110/108793.pdf Regulatory Flexibility Act: Key Terms Still Need to Be Clarified] (2001).<br />
*GAO-02-491T, [https://www.gao.gov/assets/110/109134.pdf Regulatory Flexibility Act: Clarification of Key Terms Still Needed] (2002).<br />
*GAO-06-998T, [https://www.gao.gov/assets/120/114481.pdf Regulatory Flexibility Act: Congress Should Revisit and Clarify Elements of the Act to Improve Its Effectiveness] (2006).<br />
</div><br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Dep’t of Labor, Occupational Health and Safety Admin., [https://www.osha.gov/Publications/smallbusiness/small-business.html Small Business Handbook] (2005).<br />
*Envtl. Prot. Agency, [https://www.govinfo.gov/content/pkg/FR-2000-04-11/pdf/00-8955.pdf Small Business Compliance Policy], 65 Fed. Reg. 19,630 (Apr. 11, 2000).<br />
*Envtl. Prot. Agency, [https://www.govinfo.gov/content/pkg/FR-2004-06-02/pdf/04-12417.pdf Agency Policy and Guidance: Small Local Governments Compliance Assistance Policy], 69 Fed. Reg. 31,278 (June 2, 2004).<br />
*Envtl. Prot. Agency, [https://www.epa.gov/sites/production/files/2015-06/documents/guidance-regflexact.pdf Final Guidance for EPA Rulewriters: Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act] (2006).<br />
*Office of Advocacy, Small Bus. Admin., [https://advocacy.sba.gov/category/resources/annual-report-on-the-rfa/ Annual Reports of the Chief Counsel for Advocacy on Implementation of the Regulatory Flexibility Act and Executive Order 13272] (2001-present).<br />
*Office of Advocacy, Small Bus. Admin., [https://cdn.advocacy.sba.gov/wp-content/uploads/2019/07/01092549/How-to-Comply-with-the-RFA-WEB.pdf A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act] (2012).<br />
</div><br />
<br />
===Agency Websites===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.dol.gov/general/regs/guidelines Department of Labor]<br />
*[https://www.va.gov/ORPM/Regulatory_Flexibility_Act.asp Department of Veterans Affairs]<br />
*[https://www.epa.gov/reg-flex Environmental Protection Agency]<br />
*[https://www.eeoc.gov/eeoc/plan/regflexibilityact.cfm Equal Employment Opportunity Commission]<br />
*[https://www.nrc.gov/about-nrc/regulatory/rulemaking/flexibility-act.html Nuclear Regulatory Commission]<br />
*[https://advocacy.sba.gov/category/resources/annual-report-on-the-rfa/ Small Business Administration]<br />
<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Reeve Bull & Jerry Ellig, [https://www.mercatus.org/system/files/mercatus-bull-ellig-judicial-review-ria-v1.pdf Judicial Review of Regulatory Impact Analysis: Why Not the Best?], 69 Admin. L. Rev. 725 (2017).<br />
*Doris S. Freedman, Barney Singer, & Frank Swain, ''The Regulatory Flexibility Act: Orienting Federal Regulation Toward Small Business'', 93 Dick. L. Rev. 439 (1989).<br />
*Keith Holman, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2203&context=ulj The Regulatory Flexibility Act at 25: Is the Law Achieving its Goal?], 33 Fordham Urb. L. J. 1119 (2006).<br />
*Sarah Kerman, [https://administrativelawreview.org/wp-content/uploads/sites/2/2022/03/74.1-Kerman_Final.pdf Flagged for Review: Implementing Analysis of Distributional Consequences in the Restrospective Review Process], 74 Admin. L. Rev. 191 (2022).<br />
*Jennifer McCoid, [https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1325&context=ealr EPA Rulemaking Under the Regulatory Flexibility Act: The Need for Reform], 23 B.C. Env't. Aff. L. Rev. 203 (1995).<br />
*Richard J. Pierce, Jr., ''Small Is Not Beautiful: The Case Against Special Regulatory Treatment of Small Firms'', 50 Admin. L. Rev. 537 (1998).<br />
*Barry A. Pineles, [https://scholarship.law.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1105&context=commlaw The Small Business Regulatory Enforcement Fairness Act: New Options in Regulatory Relief], 5 CommLaw Conspectus 29 (1997).<br />
*Thomas O. Sargentich, ''The Small Business Regulatory Enforcement Fairness Act'', 49 Admin. L. Rev. 123 (1997).<br />
*Michael See, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2207&context=ulj Willful Blindness: Federal Agencies’ Failure to Comply with the Regulatory Flexibility Act’s Periodic Review Requirement—and Current Proposals to Invigorate the Act], 33 Fordham Urb. L.J. 1199 (2006).<br />
*Vartan Shadarevian and Robert Delaney, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3781725 Multiple-Rule Cost Benefit Analysis], 15 Charleston L. Rev. 373 (2021).<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
*Sarah Shive, [https://kb.osu.edu/bitstream/handle/1811/78239/OSBLJ_V1N1_153.pdf?sequence=1&isAllowed=y If You’ve Always Done It That Way, It’s Probably Wrong: How The Regulatory Flexibility Act Has Failed To Change Agency Behavior, And How Congress Can Fix It], 1 Entrepreneurial Bus. L.J. 153 (2006).<br />
*Paul Verkuil, [https://www.acus.gov/sites/default/files/documents/N3%201981%20Verkuil%20Critical%20Guide%20to%20Reg%20Flex%201981%20ACUS%20203%20%28CP%20146%29.pdf A Critical Guide to the Regulatory Flexibility Act], (report to ACUS), reprinted in [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2804&context=dlj 1982 Duke L.J. 213] (1982).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Regulatory Flexibility Act<br />
<br />
Title 5 U.S. Code <br />
<br />
*[http://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter6&edition=prelim Chapter 6—The Analysis of Regulatory Functions] <br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section601&num=0&edition=prelim § 601. Definitions]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section602&num=0&edition=prelim § 602. Regulatory agenda]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section603&num=0&edition=prelim § 603. Initial regulatory flexibility analysis]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section604&num=0&edition=prelim § 604. Final regulatory flexibility analysis]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section605&num=0&edition=prelim § 605. Avoidance of duplicative or unnecessary analyses]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section606&num=0&edition=prelim § 606. Effect on other law]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section607&num=0&edition=prelim § 607. Preparation of analyses]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section608&num=0&edition=prelim § 608. Procedure for waiver or delay of completion]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section609&num=0&edition=prelim § 609. Procedures for gathering comments]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section610&num=0&edition=prelim § 610. Periodic review of rules]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section611&num=0&edition=prelim § 611. Judicial review]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section612&num=0&edition=prelim § 612. Reports and intervention rights]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Privacy_Act&diff=1682Privacy Act2023-08-15T21:15:15Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] (2012), enacted by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 3, 88 Stat. 1897, Dec. 31, 1974; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-89/pdf/STATUTE-89-Pg1057.pdf Pub. L. No. 94-183], § 2(2), 89 Stat. 1057, Dec. 31, 1975; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365], § 2, 96 Stat. 1749, Oct. 25, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1819.pdf Pub. L. No. 97-375], title II, § 201(a), (b), 96 Stat. 1821, Dec. 21, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2467.pdf Pub. L. No. 97-452], §2(a)(1), 96 Stat. 2478, Jan. 12, 1983; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c), 98 Stat. 2211, Oct. 15, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], title I, §107(g), 98 Stat. 2292, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503], §§ 28, 102 Stat. 2507-2514, Oct. 18, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1388.pdf Pub. L. No. 101-508], title VII, §7201(b)(1), 104 Stat. 1388-(3), Nov. 5, 1990; by [https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1466.pdf Pub. L. No. 103-66], title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107 Stat. 611, Aug. 10, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ193/pdf/PLAW-104publ193.pdf Pub. L. No. 104-193], title I, § 110(w), 110 Stat. 2175, Aug. 22, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ226/pdf/PLAW-104publ226.pdf Pub. L. No. 104-226], § 1(b)(3), 110 Stat. 3033, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ316/pdf/PLAW-104publ316.pdf Pub. L. No. 104-316], title I, § 115(g)(2)(b), 110 Stat. 3835, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ34/PLAW-105publ34.pdf Pub. L. No. 105-34], title IX, subtitle C, § 1026(b)(2), 111 Stat. 925, Aug. 5, 1997; by [https://www.govinfo.gov/content/pkg/PLAW-105publ362/pdf/PLAW-105publ362.pdf Pub. L. No. 105-362], title XIII, § 1301(d), 112 Stat.3292, Nov. 10, 1998; by [https://www.govinfo.gov/content/pkg/PLAW-108publ271/pdf/PLAW-108publ271.pdf Pub. L. No. 108-271], 118 Stat. 814, July 7, 2004; by [https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf Pub. L. No. 111-148], Title VI, § 6402(b)(2), 124 Stat. 756, Mar. 23, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203], Title X, § 1082, 124 Stat. 2080, July 21, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-113publ295/pdf/PLAW-113publ295.pdf Pub. L. No. 113-295], Div. B, Title I, § 102(c), 128 Stat. 4062, Dec. 19, 2014.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
==Overview==<br />
The Privacy Act of 1974 represents the Congressional response to concerns about government uses of information collected about private individuals. The Privacy Act gives individuals greater control over the gathering, dissemination, and accuracy of information collected about themselves by agencies. ''Miller v. United States'', 630 F. Supp. 347 (E.D.N.Y. 1986). The main purpose of the Privacy Act is to forbid disclosure unless it is required by the [[Freedom of Information Act]] (FOIA). ''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980). To protect individual privacy, the Privacy Act constrains executive branch recordkeeping, defines the individual’s right to access certain records, limits agency disclosure of records containing an individual’s private information, establishes safeguards to protect records concerning individuals, and provides remedies for agency violation of the Privacy Act’s provisions.<br />
<br />
===Scope===<br />
<br />
The Privacy Act covers records maintained by agencies as defined in FOIA. It applies to Cabinet-level departments, independent regulatory agencies, military departments, and government corporations. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(a)(1)]. It does not apply to the legislative branch, national banks (''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981)), or Amtrak (''Ehm v. National R.R.'' ''Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984), ''cert. denied'', 469 U.S. 982 (1984)). ''See Alexander v. FBI'', 971 F. Supp. 603, 606-07 (D.D.C. 1997) (recognizing that the definition of “agency” under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President’s immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, but, nevertheless rejecting such limitation with regard to “agency” as used in the Privacy Act due to the different purposes that the two statutes serve); ''Shannon v. Gen. Elec. Co.'', 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) (stating there is “no dispute” that General Electric (GE) falls within the definition of “agency” subject to requirements of the Privacy Act where, pursuant to a contract, it operated a Department of Energy-owned lab under the supervision, control, and oversight of the Department and where, by terms of the contract, GE agreed to comply with the Privacy Act).<br />
<br />
A record is a collection or grouping of information about an individual that, for example, may include educational, financial, or biographical information, together with personal identifiers such as names, photos, numbers, or fingerprints. 5 U.S.C. § 552a(a)(4). The Privacy Act does not apply to all government records and documents that may contain an individual’s name or other private information. For example, it does not include the private notes of a supervisor if such notes are not used by the agency to make decisions. ''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989). But such notes may become subject to the Privacy Act if they become part of an agency’s decision. ''Chapman v. NASA'', 682 F.2d 526 (5th Cir. 1982), ''cert. denied'', 469 U.S. 1038 (1984). The Act also does not apply to information in documents obtained from independent sources of information, even though identical information may be in an agency’s system of records. ''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
<br />
The Privacy Act focuses on “systems of records” established, maintained, or controlled by an agency. A “system of records” is a group of any records where individual names or other individual identifiers can be used to retrieve the information. 5 U.S.C. § 552a(a)(5). Agencies may maintain records covered by the Privacy Act only when they are relevant and necessary to accomplish the agency’s purpose. 5 U.S.C. § 552a(e)(1). The Court of Appeals for the District of Columbia Circuit addressed the “system of records” definition in the context of computerized information in ''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996), and noted that “the [Office of Management and Budget] guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person’s name, but the agency must in fact retrieve records in this way in order for a system of records to exist.” ''Id.'' at 1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is retrieved” in the statute’s definition of a system of records and focused on whether the agency “in practice” retrieved information. ''Id.'' at 1459-61.<br />
<br />
===Access to Records===<br />
Where the agency is authorized to keep records covered by the Privacy Act, an individual has a right of access to records concerning him or her. This is a central protection of the Privacy Act for individuals. The individual has a right to:<br />
<br />
*Copy any or all of the record (§ 552a(d)(1));<br />
*Request amendment of the record (§ 552a(d)(2)) and file a concise statement of disagreement if the agency refuses to amend the record that will be provided to all persons to whom the record is disclosed (§ 552a(d)(4)); and<br />
*Request an accounting from the agency on the date, nature, and purpose of each disclosure of the record (§ 552a(c)).<br />
<br />
The individual has an absolute right to access and need not provide any reason for seeking access. ''FTC v. Shaffner'', 626 F.2d 32 (7th Cir. 1980).<br />
<br />
===Agency Requirements=== <br />
For each system of records an agency maintains, it must:<br />
<br />
*Publish in the ''Federal Register'' the name and location of the system; the categories of individuals contained in the system; the routine use of the records; agency policies concerning the records including storage, retrieval, access, retention, and disposal; the person, including title and address, responsible for the system; the method used to notify individuals how to gain access to records about themselves; and the sources or records in the system. Any new use of the system must be noticed for comment 30 days prior to implementing the new use. Exempt systems must also be noticed. ''See, e.g.,'' 5 U.S.C.§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a(b)(3)], (e)(4), and (e)(11);<br />
*Maintain records in the system accurately, completely, and timely to ensure fairness to the individuals (§ 552a(e)(5));<br />
*Establish rules and training for persons designing, developing, operating, or maintaining the system to ensure compliance with the Privacy Act and the agency’s implementing policies (§ 552a(e)(9));<br />
*Establish safeguards for the protection of records (§ 552a(e)(10)); and<br />
*Inform government contractors of their duties under the Privacy Act (§ 552a(m)).<br />
<br />
When the agency collects information that “may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs,” the Privacy Act requires the information to be collected, to the “greatest extent practicable,” directly from the affected individual. 5 U.S.C. § 552a(e)(2). When requesting such information from individuals, the agency must disclose: (1) the authority under which collection is authorized; (2) the principal purposes for which the information is needed; (3) the routine use of the information; and (4) consequences, if any, of not providing the information. 5 U.S.C. § 552a(e)(3).<br />
<br />
The Privacy Act mandates that information maintained in agency records be as relevant and as necessary as possible to accomplish the agency’s purpose. It must also undertake to maintain the information with such accuracy and completeness as is reasonably necessary to assure fairness to the individual. In ''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987), the court sitting en banc held that an agency may satisfy this requirement by supplementing the information an individual considers damaging with the individual’s explanation or disagreement with the accuracy of the information. The court found that the agency made a reasonable effort to determine the accuracy of the information and that an adjudication of the disputed facts was not necessary for the agency’s purposes. The court said that in some cases, fairness may require a record to contain both versions of a disputed fact.<br />
<br />
Agencies are prohibited from maintaining records describing how an individual exercises First Amendment rights, unless such records are authorized by statute or are pertinent to and within the scope of authorized law enforcement activity. 5 U.S.C. § 552a(e)(7). Such records are subject to the Privacy Act even if not kept in “a system of records.” ''Clarkson v. IRS'', 678 F.2d 1368, 1373-77 (11th Cir. 1982), ''cert. denied'', 481 U.S. 1031. ''Cf. Pototsky v. U.S. Dep’t of Navy'', 717 F. Supp. 20 (D. Mass. 1989). Guidelines from the Office of Management and Budget (OMB) call for the broadest reasonable interpretation of the prohibition.<br />
<br />
===Exemptions from Access===<br />
The Privacy Act provides general (§ 552a(j)) and specific (§ 552a(k)) exemptions. These are exemptions allowing an agency to deny access to the record by the individual to whom the record pertains. The two types of exemptions are different in nature and consequences and are discretionary on the agency’s part. To be effective, the agency must first determine that a record or system of records meets the criteria for exemption under the Privacy Act and then publish the exemption as a rule under the [[Administrative Procedure Act]]’s (APA) notice-and-comment provisions. Failure to set out reasons demonstrating that the exemption meets the requirements of the Privacy Act may leave the records subject to the Privacy Act. ''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980). The exemptions do not authorize the agency to use the record in a manner other than the manner originally set out in the ''Federal Register'' establishing the system of records. ''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
A general exemption denies access by an affected individual under virtually all the Privacy Act’s provisions and is available for records maintained by the Central Intelligence Agency or by an agency whose principal functions are criminal law enforcement. The general exemption may not be used to exempt records compiled for a noncriminal or administrative purpose even if they are also a part of a system of records maintained by an agency qualified to assert the exemption. ''Vymetalik v. FBI'', 785 F.2d 1090, 1095 (D.C. Cir. 1986).<br />
<br />
The specific exemptions (§ 552a(k)(1)(7)) are available to any agency if the head of the agency promulgates rules pursuant to the notice-and-comment provisions of the [[Administrative Procedure Act|APA]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim 553]. The specific exemption is from a particular provision of the Privacy Act. The seven exemptions allowed are:<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim FOIA (b)(1) exemptions] (matters to be kept secret in the interest of national defense or foreign policy and properly classified by executive order);<br />
*Investigatory material compiled for law enforcement purposes that does not fall within the general exemption;<br />
*Material maintained to provide protective service to the President or pursuant to 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3056&num=0&edition=prelim § 3056];<br />
*Confidential investigatory records relating to employment or contracts;<br />
*Statistical records required by statute;<br />
*Testing and examination material related to federal employment; and<br />
*Evaluations related to military promotions obtained confidentially.<br />
<br />
An individual may sue to challenge a denial of access to records based on the general or specific exemptions, and the court will determine the substantive and procedural propriety of the agency’s assertion of the exemption. ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
<br />
===Restrictions on Disclosure===<br />
The Privacy Act prohibits disclosure of any record covered by the Privacy Act without the written request or prior written consent of the person whom the record concerns. 5 U.S.C. § 552a(b). The restriction on disclosure applies to any person or agency and includes any means of communication—written, oral, electronic, or mechanical [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Responsibilities for the Maintenance of Records About Individuals by Federal Agencies], 40 Fed. Reg. 28948, 28953 (July 9, 1975). Information obtained (or released) through sources independent of agency records is not “disclosure” under the Privacy Act.<br />
<br />
The general rule of nondisclosure is subject to 12 exceptions (§ 552a(b)(1)(12)). They are:<br />
<br />
*Internal agency use on a need to know basis;<br />
*Proper requests under FOIA;<br />
*Routine use;<br />
*Census Bureau activities;<br />
*Statistical research where the recipient has given written assurance that records are not individually identifiable;<br />
*National Archives preservation;<br />
*Information to Congress;<br />
*Information to the Comptroller General in performing Government Accountability Office (GAO) duties;<br />
*Showing of compelling circumstances affecting the health or safety of an individual;<br />
*Pursuant to court order (subpoenas issued by clerks of courts are not “orders” ''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798, 800 (N.D. Ga. 1978));<br />
*To a consumer reporting agency in accordance with 31 U.S.C. § 3711(f); and<br />
*Use by “any governmental jurisdiction . . . for a civil or criminal law enforcement activity” as long as a written request (1) is made by the head of the agency seeking the record, (2) specifies the portion of the record sought, and (3) describes the relevant enforcement activity. ''See Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
“Routine use,” considered generally the most important exception, is defined as “the use of such record for a purpose that is compatible with the purpose for which it was collected.” 5 U.S.C. § 552a(a)(7). Each routine use is identified in the ''Federal Register'' notice upon establishment or revision of each system of records. 5 U.S.C. (§ 552a(e)(4)(D). This exception permits nonconsensual intra- or interagency transfer of what is generally described as “house-keeping” information. Because the language is broad, the potential for abuse is considered great, and the courts have strictly required that the use be clearly and specifically identified in the rule adopted by the agency identifying the system of records. ''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989); ''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988); ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979). The Supreme Court has found that the Privacy Act’s provisions restricting disclosure, even while allowing disclosure for “routine uses,” are sufficient to protect persons’ constitutional right to informational privacy, if such a right exists. ''NASA v. Nelson'', 562 U.S. 134, 153-55 (2011).<br />
<br />
===Review, Relief, Remedies===<br />
The Privacy Act provides that each agency shall promulgate rules that establish, among other things, procedures of notice, disclosure, and review of requests. 5 U.S.C. § 552a(f). In the event that the rules are not followed or that a dispute persists, there are four civil actions: (1) a challenge for failure to provide access; (2) a challenge for refusal to amend; (3) a damages action for improper maintenance of the content of records; and (4) a damages action for other breaches of the Privacy Act or regulations issued thereunder that adversely affect the individual. 5 U.S.C. § 552a(g)(1). The latter two actions require proof of damages and are limited to actual damages. A cause of action for monetary damages requires a showing of an agency’s intentional or willful failure to maintain accurate records and that the violation of the Privacy Act caused the actual damages complained of. ''Molerio v. FBI'', 749 F.2d 815, 826 (D.C. Cir. 1984). Because waivers of sovereign immunity are to be strictly construed, the Supreme Court held that “actual damages” do not include nonpecuniary damages. https://tile.loc.gov/storage-services/service/ll/usrep/usrep566/usrep566284/usrep566284.pdf Fed. Aviation Admin. v. Cooper], 566 U.S. 284 (2012). Remedies for failure to grant access or refusal to amend are injunctive.<br />
<br />
An individual bringing a claim under § 552a(g)(1) must demonstrate a causal connection between the alleged violation and the harm suffered but may not use the Privacy Act claim as the forum in which to prove the entitlement the individual claims was improperly denied. ''Gizoni v. Sw. Marine, Inc.'', 909 F.2d 385 (9th Cir. 1990).<br />
<br />
Criminal penalties are established for willful disclosure of records by those who know such disclosure is prohibited, willful maintenance of a system of records without meeting the appropriate notice requirements, and knowing and willful requests for records under false pretenses. 5 U.S.C. § 552a(i). Each violation is classified as a misdemeanor, and the violator may be fined not more than $5,000. There have been at least two criminal prosecutions for unlawful disclosure of Privacy Act-protected records. ''See United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997) (finding the defendant not guilty; that the prosecution did not prove “beyond a reasonable doubt that defendant ‘willfully disclosed’ protected material”; and that the evidence presented constituted, “at best, gross negligence,” and thus was “insufficient for purposes of prosecution under § 552a(i)(1)”); ''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976) (guilty plea entered). ''See generally In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439, 1441 (D.C. Cir. 1996) (''per curiam'') (indicating the application for reimbursement of attorney fees where independent counsel found no prosecution was warranted under the Privacy Act because there was no conclusive evidence of improper disclosure of information). In a case involving the destruction of records, [https://www.cadc.uscourts.gov/internet/opinions.nsf/1E0F642CD84E034985257B3D004E4186/$file/09-5354-1427961.pdf Gerlich v. DOJ], 711 F.3d 161 (D.C. Cir. 2013), the D.C. Circuit allowed a Privacy Act claim to proceed against senior officials at the Department of Justice on the ground that they created records about appellants in the form of annotations to their applications and internet printouts concerning their political affiliations. The court relied in part on a permissive spoliation inference in light of the destruction of appellants’ records, because the senior department officials had a duty to preserve the annotated applications and internet printouts given that department investigation and future litigation were reasonably foreseeable.<br />
<br />
The Privacy Act provides a two-year statute of limitations. 5 U.S.C. § 552a(g)(5). The time begins to run when a reasonable person should have known of the alleged violation. ''Rose v. United States'', 905 F.2d 1257, 1259 (9th Cir. 1990); ''Diliberti v. United States'', 817 F.2d 1259, 1262 (7th Cir. 1987).<br />
<br />
===Computer Matching===<br />
The Privacy Act was amended in 1988 by the Computer Matching and Privacy Protection Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503]). OMB issued final guidance implementing the amendment’s provisions on June 19, 1989. [https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989)). The amendments added § 552a(o)-(q) to establish procedural safeguards affecting agencies’ use of Privacy Act records when performing computerized matching programs. The amendments require agencies to conclude written agreements specifying terms and safeguards under which matches are to be done. They provide procedures for individuals whose information is contained in the affected records to use to prevent agencies from taking adverse actions unless they have independently verified the results of matching and given the individual advance notice. Oversight is established by requiring ''Federal Register'' notice of matching agreements, reports to OMB and Congress, and the establishment of internal “data integrity boards” to oversee and coordinate the agency’s implementation of matching programs.<br />
<br />
===Relationship to the FOIA===<br />
Two provisions relate to FOIA. 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]. Section 552a(b)(2) exempts agencies from the requirement of obtaining an individual’s consent to release of information subject to disclosure under FOIA. In 1984, Congress added provisions delineating an individual’s access rights to records exempt from disclosure under FOIA or the Privacy Act. An agency must give an individual access to a record if it is accessible under either act irrespective of whether it might be withheld under the other. 5 U.S.C. § 552a(t). This gives maximum access to records by an individual whose personal information is contained therein. An accounting of the number of FOIA releases of Privacy Act information is not required. 5 U.S.C. § 552a(c)(1). If released under FOIA, the agency is relieved from ensuring the accuracy, completeness, timeliness, and relevance of the record. 5 U.S.C. § 552a(e)(6). If the system of records is made necessary by FOIA, the agency may exempt the system from the Privacy Act. 5 U.S.C. § 552a(k)(1).<br />
<br />
===Social Security Numbers===<br />
The Privacy Act restricts use of an individual’s Social Security account number. [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 7 (not codified as part of 5 U.S.C. § 552a). This provision applies to state and local governments, as well as to the federal government and makes it unlawful to deny any right, benefit, or privilege based on an individual’s failure to disclose the Social Security account number, unless the disclosure was required by any federal, state, or local system of records in operation before January 1, 1975, or the disclosure is required by federal law. Since enactment, Congress has required disclosure in the Tax Reform Act of 1976 ([http://uscode.house.gov/statutes/pl/94/455.pdf Pub. L. No. 94-455]), the Deficit Reduction Act of 1984 ([https://www.govinfo.gov/app/details/STATUTE-98/STATUTE-98-Pg494/summary Pub. L. No. 98-369]), and the Debt Collection Act of 1982 ([https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365]). In the Tax Reform Act of 1976, Congress declared it to be U.S. policy to use Social Security account numbers “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law.” Pub. L. No. 94-455, amending 42 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section405&num=0&edition=prelim 405(c)(2)].<br />
<br />
==Oversight==<br />
The Privacy Act requires OMB to develop guidelines and regulations for its implementation and to provide continuing assistance and oversight. The OMB guidelines are entitled to the usual deference accorded the interpretations of the agency charged with administration of a statute. ''Albright v. United States'', 631 F.2d 915, 919 n.5 (D.C. Cir. 1980); ''Quinn v. Stone'', 978 F.2d 126, 133 (3d Cir. 1992). However, a few courts have rejected particular aspects of the OMB guidelines as inconsistent with the statute. ''See, e.g.'', ''Kassel v. U.S. Dep’t of Veterans Affairs'', No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); [https://supreme.justia.com/cases/federal/us/540/614/ Doe v. Chao], 540 U.S. 614, 627 n.11 (2004) (disagreeing with dissent’s reliance on OMB interpretation of damages provision since the Court does “not find its unelaborated conclusion persuasive”).<br />
<br />
The vast majority of OMB’s Privacy Act guidelines are published in [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (1975). However, these original guidelines have been supplemented in particular subject areas over the years, including:<br />
<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/OMB/circulars/a130/a130revised.pdf Appendix I to OMB Circular No. A-130], most recently revised at [https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 81 Fed. Reg. 49689] (July 28, 2016)).<br />
*[https://archives.federalregister.gov/issue_slice/1975/12/4/56740-56743.pdf Implementation of the Privacy Act Supplemental Guidance], 40 Fed. Reg. 56741 (Dec. 4,1975) (system of records definition, routine use and intra-agency disclosures, consent and congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to FOIA).<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/guidance1983.pdf Guidelines on the Relationship of the Debt Collection of 1982 to the Privacy Act of 1974], 48 Fed. Reg. 15556 (Apr. 11, 1983) (relationship to Debt Collection Act).<br />
*[https://archives.federalregister.gov/issue_slice/1987/4/20/12988-12993.pdf Guidance on the Privacy Act Implications of “Call Detail” Programs to Manage Employees’ Use of the Government’s Telecommunications Systems], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf 52 Fed. Reg. 12,990-93] (Apr. 20, 1987) (“call detail” programs).<br />
*[https://archives.federalregister.gov/issue_slice/1989/6/19/25805-25829.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25,818] (June 19, 1989) (computer matching).<br />
*[https://archives.federalregister.gov/issue_slice/1991/4/23/18598-18601.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf 56 Fed. Reg. 18,599] (proposed Apr. 23, 1991) (computer matching);<br />
*[https://www.federalregister.gov/documents/1996/02/20/96-3645/management-of-federal-information-resources Management of Federal Information Resources], 61 Fed. Reg. 6428 (1996) (“Federal Agency Responsibilities for Maintaining Records About Individuals”).<br />
<br />
Thus, when researching in this area, it may be important to check subsequent supplements.<br />
<br />
In 1998, President Clinton called upon all federal agencies to take further privacy-protection steps within the next year. [https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998). Specifically, the President directed each agency to designate a senior official responsibile for the agency's privacy policy to apply the Principles for Providing and Using Personal Information, which was developed through the Information Infrastructure Task Force under the auspices of the Department of Commerce in 1995, and to review agency record systems to ensure compliance with the Privacy Act requirements. The agencies then reported the results of these reviews to OMB. The presidential memorandum also called for OMB to issue further guidance on the making of “routine use” disclosures under the Privacy Act.<br />
<br />
Section 208 of the [[E-Government Act of 2002]] (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=(title:44%20section:3501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title44-section3501)&f=treesort&edition=prelim&num=0&jumpTo=true § 3501 note]) requires that OMB issue guidance to agencies on implementing the privacy provisions of the E-Government Act. Under this guidance, agencies are required to conduct privacy impact assessments for electronic information systems and collections, make those assessments publicly available, post privacy policies on agency websites used by the public, translate privacy policies into a standardized machine-readable format, and report annually to OMB on the agency's compliance with the E-Government Act.<br />
<br />
In 2002, the Government Accountability Office (GAO) conducted an extensive review of agency Privacy Act practices and reported on its findings in June 2003. GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003). <br />
<br />
While most questions concerning the Privacy Act should first be directed to agency Privacy Act officers, important policy or litigation questions, or questions concerning the OMB guidelines, may be directed to the [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs].<br />
<br />
==Legislative History==<br />
The Privacy Act reflects the merger of seemingly disparate bills from the Senate and the House: S. 3418, introduced by Senator Sam Ervin (D-NC), and H.R. 16373, supported by the Administration. The Senate bill would have granted sweeping powers to a Federal Privacy Board for the oversight of collection, maintenance, and dissemination of individually identifiable information by both the public and private sectors, while the House bill focused on access to and correction of records, data collection, and maintenance standards. The Senate approved its bill on November 21, 1974, after consideration and, on the same day, the House bill was passed by a 353 to 1 vote, after two days of floor debate.<br />
<br />
The bills were not reconciled by the usual conference committee because of the limited time available between the end of Thanksgiving recess and the end of the session. Instead, the respective staffs of the committees studied the differing bills, reported to the committees and, after informal meetings, reached an agreement. The description of the amendments that made the two bills identical (thus avoiding a conference committee) was inserted into the record of both sides, and both houses passed identical bills. Thus, many of the most important provisions of the bill are not explained by committee reports. The only record of the final negotiations leading to the bill actually adopted is a staff memorandum entitled ''Analysis of House and Senate Compromise Amendments to the Federal Privacy Act''. ''See also'' [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S.3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976).<br />
<br />
The final product included most of the fair information practices defined in the Senate version and the access and correction provisions of the House bill. None of the Senate provisions relating to a Federal Privacy Board was included. However, the Privacy Act provided for two important means of further development and oversight. First, it instructed OMB to develop guidelines for the implementation of the Privacy Act throughout the executive branch. Second, it created the Privacy Protection Study Commission tasked with studying the issues raised by the Privacy Act and recommending further legislation. The Commission subsequently completed its thorough and informative report, [https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society].<br />
<br />
The bill was signed by President Ford on December 31, 1974 and became effective in September 1975.<br />
<br />
===Source Note===<br />
The legislative history of the original Act is exhaustively collected in [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976). <br />
<br />
The Department of Justice’s [https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition Overview of the Privacy Act of 1974] is updated periodically and discusses the extensive case law under the Privacy Act.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*Joint Comm. on Government Operations, [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy], 94th Cong. (1976).<br />
*H.R. Rep. No. 100-802 (1988).<br />
*S. Rep. No. 100-516 (1988).<br />
*''Who Cares About Privacy? Oversight of the Privacy Act of 1974 by the Office of Management and Budget and by the Congress,'' ''H.R. Rep. No. 98-455'', Hearings Before Subcomm. of the H. Comm. on Gov’t Operations, 98th Cong. (1983).<br />
*America’s Healthy Future Act of 2009, [https://www.congress.gov/111/crpt/srpt89/CRPT-111srpt89.pdf S. Rep. No. 111-89] (2009).<br />
*The Restoring American Financial Stability Act of 2010, [https://www.congress.gov/111/crpt/srpt176/CRPT-111srpt176.pdf S. Rep. No. 111-176] (2010).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. 112-689] (2012).<br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998).<br />
*Executive Order 13478, [https://www.govinfo.gov/content/pkg/FR-2008-11-20/pdf/E8-27771.pdf Amendments to Executive Order 9397 Relating to Federal Agency Use of Social Security Numbers], 73 Fed. Reg. 70,239 (Nov. 20, 2008).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2020-2, [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-2%2C%20Protected%20Materials%20CLEAN%2012%2028%202020.pdf Protected Materials in Public Rulemaking Dockets]<br />
*2021-6, [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular A-130] (2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A108/omb_circular_a-108.pdf Circular A-108] (2016).<br />
*[https://archives.federalregister.gov/issue_slice/1975/12/4/56740-56743.pdf Implementation of the Privacy Act of 1974, Supplementary Guidance], 40 Fed. Reg. 56741 (Dec. 4, 1975).<br />
*''Revised Supplemental Guidance for Conducting Matching Programs'', 47 Fed. Reg. 21656 (May 19, 1982).<br />
*https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/guidance1983.pdf Debt Collection Act Guidelines], 48 Fed. Reg. 15556 (Apr. 11, 1983).<br />
*[https://www.govinfo.gov/app/details/FR-1975-07-09 Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (July 9, 1975); supplemented at:<br />
**[https://archives.federalregister.gov/issue_slice/1975/12/4/56740-56743.pdf 40 Fed. Reg. 56741] (1975).<br />
**49 Fed. Reg. 12338 (1984).<br />
**[https://archives.federalregister.gov/issue_slice/1989/6/19/25805-25829.pdf 54 Fed. Reg. 25818] (1989).<br />
*''Management of Federal Information Resources'', Circular A130, 50 Fed. Reg. 52730 (Dec. 24, 1985).<br />
*[https://archives.federalregister.gov/issue_slice/1987/4/15/12283-12339.pdf Final Guidance on Privacy Act Implications of “Call Detail” Programs], 52 Fed. Reg. 12290 (Apr. 20, 1987).<br />
*[https://archives.federalregister.gov/issue_slice/1989/6/19/25805-25829.pdf Final Guidance Interpreting the Provisions of Pub. L. No. 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989).<br />
*[https://archives.federalregister.gov/issue_slice/1991/4/23/18598-18601.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], 56 Fed. Reg. 18599 (Apr. 23, 1991).<br />
*''Proposed Revision of OMB Circular A130'', 57 Fed. Reg. 18296 (Apr. 29, 1992).<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (Feb. 20, 1996).<br />
*M-0105, [https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-05-Guidance-on-Inter-Agency-Sharing-of-Personal-Data-Protecting-Personal-Privacy.pdf Guidance on Inter-Agency Sharing of Personal Data—Protecting Personal Privacy] (2000).<br />
*M-0322, [https://www.whitehouse.gov/wp-content/uploads/2017/11/203-M-03-22-OMB-Guidance-for-Implementing-the-Privacy-Provisions-of-the-E-Government-Act-of-2002-1.pdf Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002] (2003).<br />
*[https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 Revision of OMB Circular No. A-130 “Managing Information as a Strategic Resource”], 81 Fed. Reg. 49689 (July 28, 2016).<br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports on E-Government Act Implementation from 2003-2015]<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/egov_docs/egov_implementation_report_6_17_16.pdf 2015 Annual Report to Congress: E-Government Act Implementation]<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/egov/documents/omb-fy-2016-egov-act-report.pdf 2016 Annual Report to Congress: E-Government Act Implementation]<br />
*M-21-04, [https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act] (2020).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission] (1977).<br />
*Gen. Accounting Office, GAO/PEMD-87-2, [https://www.gao.gov/assets/150/144893.pdf Computer Matching: Assessing its Costs and Benefits] (1986).<br />
*Gen. Accounting Office, GAO/GGD-91-48, [https://www.gao.gov/assets/220/213974.pdf Peer Review: Compliance with the Privacy Act and the Federal Advisory Committee Act] (1991).<br />
*Gen. Accounting Office, GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003).<br />
*[https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf A Citizen’s Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records], Report by the Comm. on Oversight and Gov’t Reform, 112th Cong. (2012).<br />
*Dep’t of Justice, [https://www.justice.gov/archives/opcl/overview-privacy-act-1974-2015-edition Overview of the Privacy Act of 1974] (2015).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Lillian R. Bevier, [https://core.ac.uk/download/pdf/73966670.pdf Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection], 4 Wm. & Mary Bill Rights J. 455 (1991).<br />
*Babette Boliek, ''Prioritizing Privacy in the Courts and Beyond'', 103 Cornell L. Rev. 1101 (2018).<br />
*Jonathan C. Bond, Note, [http://www.gwlr.org/wp-content/uploads/2012/08/76-5-Bond.pdf Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century], 76 Geo. Wash. L. Rev. 1232 (2008).<br />
*William S. Challis & Ann Cavoukian, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1148&context=jitpl The Case for a U.S. Privacy Commissioner: A Canadian Commissioner’s Perspective], 19 J. Marshall J. Computer & Info. L. 1 (2000).<br />
*Todd Robert Coles, Comment, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1848&context=aulr Does the Privacy Act of 1974 Protect Your Right to Privacy?: An Examination of the Routine Use Exemption], 40 Am. U. L. Rev. 957 (1991).<br />
*John M. Eden, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1140&context=dltr When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID], 2005 Duke L. & Tech. Rev. 20 (2005).<br />
*Haeji Hong, [https://www.uakron.edu/dotAsset/727663.pdf Dismantling the Private Enforcement of the Privacy Act of 1974: Doe v. Chao], 38 Akron L. Rev. 71 (2005).<br />
*Margaret Hu, ''The Ironic Privacy Act'', 96 Wash. U.L. Rev. 1267 (2019).<br />
*Joseph V. Kaplan & John Mahoney, ''Reckless Disregard: Intentional and Willful Violations of the Privacy Act’s Investigatory Requirements'', 44 Fed. Law. No. 4, at 38 (1997).<br />
*Alex Kardon, [http://www.harvard-jlpp.com/wp-content/uploads/2013/10/KardonFinal.pdf Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform], 34 Harv. J. L. & Pub. Pol’y 705 (2011).<br />
*Flavio Komuves, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1243&context=jitpl We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers], 16 J. Marshall J. Computer & Info. L. 529 (1998).<br />
*Frederick Z. Lodge, Note, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2579&context=flr Damages Under the Privacy Act of 1974: Compensation and Deterrence], 52 Fordham L. Rev. 611 (1984).<br />
*Caleb A. Seeley, Note, [https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-91-5-Seeley.pdf Once More unto the Breach: The Constitutional Right to Informational Privacy and the Privacy Act], 91 N.Y.U. L. Rev. 1355 (2016).<br />
*Lisa A. Reilly, ''The Government in the Sunshine Act and the Privacy Act'', 55 Geo. Wash. L. Rev. 955 (1987).<br />
*Nicole M. Quallen, [https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4408&context=nclr Damages under the Privacy Act: Is Emotional Harm Actual], 88 N.C. L. Rev. 334 (2009).<br />
*Paul M. Schwartz, [https://lawcat.berkeley.edu/record/1115037 Privacy and Participation: Personal Information and Public Sector Regulation in the United States], 80 Iowa L. Rev. 553 (1995).<br />
*Daniel Solove, [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2085&context=faculty_publications Identity Theft, Privacy, and the Architecture of Vulnerability], 54 Hastings L.J. 1227 (2003).<br />
*Julianne M. Sullivan, Comment, [https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=cwlr Will the Privacy Act of 1974 Still Hold Up in 2004? How Advancing Technology Has Created a Need for a Change in the “System of Records” Analysis], 39 Cal. W. L. Rev. 395 (2003).<br />
*Thomas M. Susman, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=2035&context=lawreview Privacy Act and the Freedom of Information Act: Conflict and Resolution], 21 J. Marshall L. Rev. 703 (1988).<br />
*Ari Ezra Waldman, ''Privacy Law's False Promise'', 97 Wash. U.L. Rev. 773 (2020).<br />
</div><br />
<br />
===Selected Cases Not Included in the Text===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798 (N.D. Ga. 1978).<br />
*''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
*''Albright v. United States'', 631 F.2d 915 (D.C. Cir. 1980).<br />
*''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980).<br />
*''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980).<br />
*''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981).<br />
*''Fitzpatrick v. United States'', 665 F.2d 327 (11th Cir. 1982).<br />
*''Clarkson v. IRS'', 678 F.2d 1368 (11th Cir. 1982).<br />
*''Johnson v. U.S. Dep’t of the Treasury'', 700 F.2d 971 (5th Cir. 1983).<br />
*''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
*''Molerio v. FBI'', 749 F.2d 815 (D.C. Cir. 1984).<br />
*''Elm v. Nat’l R.R. Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984).<br />
*''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
*''Vymetalik v. FBI'', 785 F.2d 1090 (D.C. Cir. 1986).<br />
*''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987).<br />
*''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988).<br />
*''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989).<br />
*''Pototsky v. U.S. Dep’t of the Navy'', 717 F. Supp. 20 (D. Mass. 1989).<br />
*''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989).<br />
*''Quinn v. Stone'', 978 F.2d 126, 133 (3rd Cir. 1992).<br />
*''Kassel v.'' U.S. ''Dep’t of Veterans Affairs'', No. 87-217-S (D.N.H. Mar. 30, 1992).<br />
*''United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997).<br />
*''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976).<br />
*''In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439 (D.C. Cir. 1996).<br />
*''Alexander v. FBI'', 971 F. Supp. 603 (D.D.C. 1997).<br />
*''Shannon v. General Elec. Co.'', 812 F. Supp. 308 (N.D.N.Y. 1993).<br />
*''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996).<br />
*[http://www.vawd.uscourts.gov/OPINIONS/WILSON/600CV0005(3).PDF Falwell v. Exec. Office of the President], 113 F. Supp. 2d 967 (W.D. Va. 2000).<br />
*''Dale v. Exec. Office of the President'', 164 F. Supp. 2d 22 (D.D.C. 2001).<br />
*''Trulock v. DOJ'', No. 00-2234, slip op. (D.D.C. Sept. 18, 2001).<br />
*''Tripp v. Exec. Office of the President'', 200 F.R.D. 140 (D.D.C. 2001).<br />
*''Broaddrick v. Exec. Office of the President'', 139 F. Supp. 2d 55 (D.D.C. 2001).<br />
*''Flowers v. Exec. Office of the President'', 142 F. Supp. 2d 38 (D.D.C. 2001).<br />
*''Jones v. Exec. Office of the President'', 167 F. Supp. 2d 10 (D.D.C. 2001).<br />
*''Sculimbrene v. Reno'', 158 F. Supp. 2d 26 (D.D.C. 2001).<br />
*''Schwarz v. U.S. Dep’t of the Treasury'', 131 F. Supp. 2d 142 (D.D.C. 2000).<br />
*''Cobell v. Norton'', 157 F. Supp. 2d 82 (D.D.C. 2001).<br />
*''Cummings v. U.S. Dep’t of the Navy'', 279 F.3d 1051 (D.C. Cir. 2002).<br />
*''McCready v. Principi'', 297 F. Supp. 2d 178 (D.D.C. 2003).<br />
*''Chang v. U.S. Dep’t of the Navy'', 314 F. Supp.2d 35 (D.D.C. 2004).<br />
*''Maydak v. United States'', 363 F.3d 512 (D.C. Cir. 2004).<br />
*[https://supreme.justia.com/cases/federal/us/540/614/ Doe v. Chao], 540 U.S. 614 (2004).<br />
*''NASA v. Nelson'', 562 U.S. 134 (2011).<br />
*[https://casetext.com/case/fed-aviation-admin-v-cooper Fed. Aviation Admin. v. Cooper], 132 S. Ct. 1441 (2012).<br />
*''Logan v. U.S. Dep’t of Veterans Affairs'', 357 F. Supp. 2d 149 (D.D.C. 2004).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2006/03/13/0335877.pdf Oja v. U.S. Army Corps of Engineers], 440 F.3d 1122 (9th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/013337AFDE8A8304852574400044F8CC/$file/04-5425a.pdf McCready v. Nicholson], 465 F.3d 1 (D.C. Cir. 2006).<br />
*[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2006/D01-30/C:04-3888:J:_:aut:T:op:N:0:S:0 Bassiouni v. FBI], 436 F.3d 712 (7th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/E94B1B7BAE4935098525744000455619/$file/06-5085b.pdf Sussman v. U.S. Marshals Serv.], 494 F.3d 1106 (D.C. Cir 2007).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/9F94563D7D135A85852578000052F342/$file/07-5257-1132633.pdf Wilson v. Libby], 535 F.3d 697 (D.C. Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2008/05/02/0615191.pdf Lane v. U.S. Dep’t of the Interior], 523 F.3d 1128 (9th Cir. 2008).<br />
*[http://media.ca8.uscourts.gov/opndir/08/03/071576P.pdf Doe v. U.S. Dep’t of Veterans Affairs], 519 F.3d 456 (8th Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2009/05/21/06-15967.pdf Rouse v. U.S. Dep’t of State], 567 F.3d 408 (9th Cir. 2009).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/EAC6966EA3FE7C2885257807005C6E66/$file/07-5352-1285040.pdf Maydak v United States], 630 F.3d 166 (D.C. Cir. 2010).<br />
*[http://media.ca11.uscourts.gov/opinions/pub/files/200916154.pdf Speaker v. U.S. Dep’t of Health and Human Serv. Ctr. for Disease Control and Prevention], F.3d 1371 (11th Cir. 2010).<br />
*[https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58 Sieverding v. DOJ], 693 F. Supp. 2d 93 (D.D.C. 2010).<br />
*[http://www.opn.ca6.uscourts.gov/opinions.pdf/11a0098p-06.pdf Shearson v. DHS], 638 F.3d 498 (6th Cir. 2011).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir. 2015).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/57E67EBF550EDDAB8525822C005378F2/$file/16-5045-1716627.pdf Liff v. Office of Inspector Gen. for the U.S. Dep’t of Labor], 881 F.3d 912 (D.C. Cir. 2018).<br />
*[https://casetext.com/case/fazaga-v-fed-bureau-of-investigation-3 Fazaga v. FBI], 916 F.3d 1201 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/22/17-17349.pdf Rojas v. FAA], 941 F.3d 392 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/18-15416.pdf Garris v. FBI], 937 F.3d 1284 (9th Cir. 2019).<br />
*[https://law.justia.com/cases/federal/appellate-courts/cadc/17-5117/17-5117-2019-06-21.html In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.], 928 F.3d 42 (D.C. Cir. 2019).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Privacy Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a. Records maintained on individuals]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Privacy_Act&diff=1681Privacy Act2023-08-15T21:13:10Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] (2012), enacted by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 3, 88 Stat. 1897, Dec. 31, 1974; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-89/pdf/STATUTE-89-Pg1057.pdf Pub. L. No. 94-183], § 2(2), 89 Stat. 1057, Dec. 31, 1975; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365], § 2, 96 Stat. 1749, Oct. 25, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1819.pdf Pub. L. No. 97-375], title II, § 201(a), (b), 96 Stat. 1821, Dec. 21, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2467.pdf Pub. L. No. 97-452], §2(a)(1), 96 Stat. 2478, Jan. 12, 1983; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c), 98 Stat. 2211, Oct. 15, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], title I, §107(g), 98 Stat. 2292, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503], §§ 28, 102 Stat. 2507-2514, Oct. 18, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1388.pdf Pub. L. No. 101-508], title VII, §7201(b)(1), 104 Stat. 1388-(3), Nov. 5, 1990; by [https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1466.pdf Pub. L. No. 103-66], title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107 Stat. 611, Aug. 10, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ193/pdf/PLAW-104publ193.pdf Pub. L. No. 104-193], title I, § 110(w), 110 Stat. 2175, Aug. 22, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ226/pdf/PLAW-104publ226.pdf Pub. L. No. 104-226], § 1(b)(3), 110 Stat. 3033, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ316/pdf/PLAW-104publ316.pdf Pub. L. No. 104-316], title I, § 115(g)(2)(b), 110 Stat. 3835, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ34/PLAW-105publ34.pdf Pub. L. No. 105-34], title IX, subtitle C, § 1026(b)(2), 111 Stat. 925, Aug. 5, 1997; by [https://www.govinfo.gov/content/pkg/PLAW-105publ362/pdf/PLAW-105publ362.pdf Pub. L. No. 105-362], title XIII, § 1301(d), 112 Stat.3292, Nov. 10, 1998; by [https://www.govinfo.gov/content/pkg/PLAW-108publ271/pdf/PLAW-108publ271.pdf Pub. L. No. 108-271], 118 Stat. 814, July 7, 2004; by [https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf Pub. L. No. 111-148], Title VI, § 6402(b)(2), 124 Stat. 756, Mar. 23, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203], Title X, § 1082, 124 Stat. 2080, July 21, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-113publ295/pdf/PLAW-113publ295.pdf Pub. L. No. 113-295], Div. B, Title I, § 102(c), 128 Stat. 4062, Dec. 19, 2014.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
==Overview==<br />
The Privacy Act of 1974 represents the Congressional response to concerns about government uses of information collected about private individuals. The Privacy Act gives individuals greater control over the gathering, dissemination, and accuracy of information collected about themselves by agencies. ''Miller v. United States'', 630 F. Supp. 347 (E.D.N.Y. 1986). The main purpose of the Privacy Act is to forbid disclosure unless it is required by the [[Freedom of Information Act]] (FOIA). ''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980). To protect individual privacy, the Privacy Act constrains executive branch recordkeeping, defines the individual’s right to access certain records, limits agency disclosure of records containing an individual’s private information, establishes safeguards to protect records concerning individuals, and provides remedies for agency violation of the Privacy Act’s provisions.<br />
<br />
===Scope===<br />
<br />
The Privacy Act covers records maintained by agencies as defined in FOIA. It applies to Cabinet-level departments, independent regulatory agencies, military departments, and government corporations. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(a)(1)]. It does not apply to the legislative branch, national banks (''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981)), or Amtrak (''Ehm v. National R.R.'' ''Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984), ''cert. denied'', 469 U.S. 982 (1984)). ''See Alexander v. FBI'', 971 F. Supp. 603, 606-07 (D.D.C. 1997) (recognizing that the definition of “agency” under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President’s immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, but, nevertheless rejecting such limitation with regard to “agency” as used in the Privacy Act due to the different purposes that the two statutes serve); ''Shannon v. Gen. Elec. Co.'', 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) (stating there is “no dispute” that General Electric (GE) falls within the definition of “agency” subject to requirements of the Privacy Act where, pursuant to a contract, it operated a Department of Energy-owned lab under the supervision, control, and oversight of the Department and where, by terms of the contract, GE agreed to comply with the Privacy Act).<br />
<br />
A record is a collection or grouping of information about an individual that, for example, may include educational, financial, or biographical information, together with personal identifiers such as names, photos, numbers, or fingerprints. 5 U.S.C. § 552a(a)(4). The Privacy Act does not apply to all government records and documents that may contain an individual’s name or other private information. For example, it does not include the private notes of a supervisor if such notes are not used by the agency to make decisions. ''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989). But such notes may become subject to the Privacy Act if they become part of an agency’s decision. ''Chapman v. NASA'', 682 F.2d 526 (5th Cir. 1982), ''cert. denied'', 469 U.S. 1038 (1984). The Act also does not apply to information in documents obtained from independent sources of information, even though identical information may be in an agency’s system of records. ''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
<br />
The Privacy Act focuses on “systems of records” established, maintained, or controlled by an agency. A “system of records” is a group of any records where individual names or other individual identifiers can be used to retrieve the information. 5 U.S.C. § 552a(a)(5). Agencies may maintain records covered by the Privacy Act only when they are relevant and necessary to accomplish the agency’s purpose. 5 U.S.C. § 552a(e)(1). The Court of Appeals for the District of Columbia Circuit addressed the “system of records” definition in the context of computerized information in ''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996), and noted that “the [Office of Management and Budget] guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person’s name, but the agency must in fact retrieve records in this way in order for a system of records to exist.” ''Id.'' at 1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is retrieved” in the statute’s definition of a system of records and focused on whether the agency “in practice” retrieved information. ''Id.'' at 1459-61.<br />
<br />
===Access to Records===<br />
Where the agency is authorized to keep records covered by the Privacy Act, an individual has a right of access to records concerning him or her. This is a central protection of the Privacy Act for individuals. The individual has a right to:<br />
<br />
*Copy any or all of the record (§ 552a(d)(1));<br />
*Request amendment of the record (§ 552a(d)(2)) and file a concise statement of disagreement if the agency refuses to amend the record that will be provided to all persons to whom the record is disclosed (§ 552a(d)(4)); and<br />
*Request an accounting from the agency on the date, nature, and purpose of each disclosure of the record (§ 552a(c)).<br />
<br />
The individual has an absolute right to access and need not provide any reason for seeking access. ''FTC v. Shaffner'', 626 F.2d 32 (7th Cir. 1980).<br />
<br />
===Agency Requirements=== <br />
For each system of records an agency maintains, it must:<br />
<br />
*Publish in the ''Federal Register'' the name and location of the system; the categories of individuals contained in the system; the routine use of the records; agency policies concerning the records including storage, retrieval, access, retention, and disposal; the person, including title and address, responsible for the system; the method used to notify individuals how to gain access to records about themselves; and the sources or records in the system. Any new use of the system must be noticed for comment 30 days prior to implementing the new use. Exempt systems must also be noticed. ''See, e.g.,'' 5 U.S.C.§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a(b)(3)], (e)(4), and (e)(11);<br />
*Maintain records in the system accurately, completely, and timely to ensure fairness to the individuals (§ 552a(e)(5));<br />
*Establish rules and training for persons designing, developing, operating, or maintaining the system to ensure compliance with the Privacy Act and the agency’s implementing policies (§ 552a(e)(9));<br />
*Establish safeguards for the protection of records (§ 552a(e)(10)); and<br />
*Inform government contractors of their duties under the Privacy Act (§ 552a(m)).<br />
<br />
When the agency collects information that “may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs,” the Privacy Act requires the information to be collected, to the “greatest extent practicable,” directly from the affected individual. 5 U.S.C. § 552a(e)(2). When requesting such information from individuals, the agency must disclose: (1) the authority under which collection is authorized; (2) the principal purposes for which the information is needed; (3) the routine use of the information; and (4) consequences, if any, of not providing the information. 5 U.S.C. § 552a(e)(3).<br />
<br />
The Privacy Act mandates that information maintained in agency records be as relevant and as necessary as possible to accomplish the agency’s purpose. It must also undertake to maintain the information with such accuracy and completeness as is reasonably necessary to assure fairness to the individual. In ''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987), the court sitting en banc held that an agency may satisfy this requirement by supplementing the information an individual considers damaging with the individual’s explanation or disagreement with the accuracy of the information. The court found that the agency made a reasonable effort to determine the accuracy of the information and that an adjudication of the disputed facts was not necessary for the agency’s purposes. The court said that in some cases, fairness may require a record to contain both versions of a disputed fact.<br />
<br />
Agencies are prohibited from maintaining records describing how an individual exercises First Amendment rights, unless such records are authorized by statute or are pertinent to and within the scope of authorized law enforcement activity. 5 U.S.C. § 552a(e)(7). Such records are subject to the Privacy Act even if not kept in “a system of records.” ''Clarkson v. IRS'', 678 F.2d 1368, 1373-77 (11th Cir. 1982), ''cert. denied'', 481 U.S. 1031. ''Cf. Pototsky v. U.S. Dep’t of Navy'', 717 F. Supp. 20 (D. Mass. 1989). Guidelines from the Office of Management and Budget (OMB) call for the broadest reasonable interpretation of the prohibition.<br />
<br />
===Exemptions from Access===<br />
The Privacy Act provides general (§ 552a(j)) and specific (§ 552a(k)) exemptions. These are exemptions allowing an agency to deny access to the record by the individual to whom the record pertains. The two types of exemptions are different in nature and consequences and are discretionary on the agency’s part. To be effective, the agency must first determine that a record or system of records meets the criteria for exemption under the Privacy Act and then publish the exemption as a rule under the [[Administrative Procedure Act]]’s (APA) notice-and-comment provisions. Failure to set out reasons demonstrating that the exemption meets the requirements of the Privacy Act may leave the records subject to the Privacy Act. ''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980). The exemptions do not authorize the agency to use the record in a manner other than the manner originally set out in the ''Federal Register'' establishing the system of records. ''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
A general exemption denies access by an affected individual under virtually all the Privacy Act’s provisions and is available for records maintained by the Central Intelligence Agency or by an agency whose principal functions are criminal law enforcement. The general exemption may not be used to exempt records compiled for a noncriminal or administrative purpose even if they are also a part of a system of records maintained by an agency qualified to assert the exemption. ''Vymetalik v. FBI'', 785 F.2d 1090, 1095 (D.C. Cir. 1986).<br />
<br />
The specific exemptions (§ 552a(k)(1)(7)) are available to any agency if the head of the agency promulgates rules pursuant to the notice-and-comment provisions of the [[Administrative Procedure Act|APA]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim 553]. The specific exemption is from a particular provision of the Privacy Act. The seven exemptions allowed are:<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim FOIA (b)(1) exemptions] (matters to be kept secret in the interest of national defense or foreign policy and properly classified by executive order);<br />
*Investigatory material compiled for law enforcement purposes that does not fall within the general exemption;<br />
*Material maintained to provide protective service to the President or pursuant to 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3056&num=0&edition=prelim § 3056];<br />
*Confidential investigatory records relating to employment or contracts;<br />
*Statistical records required by statute;<br />
*Testing and examination material related to federal employment; and<br />
*Evaluations related to military promotions obtained confidentially.<br />
<br />
An individual may sue to challenge a denial of access to records based on the general or specific exemptions, and the court will determine the substantive and procedural propriety of the agency’s assertion of the exemption. ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
<br />
===Restrictions on Disclosure===<br />
The Privacy Act prohibits disclosure of any record covered by the Privacy Act without the written request or prior written consent of the person whom the record concerns. 5 U.S.C. § 552a(b). The restriction on disclosure applies to any person or agency and includes any means of communication—written, oral, electronic, or mechanical [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Responsibilities for the Maintenance of Records About Individuals by Federal Agencies], 40 Fed. Reg. 28948, 28953 (July 9, 1975). Information obtained (or released) through sources independent of agency records is not “disclosure” under the Privacy Act.<br />
<br />
The general rule of nondisclosure is subject to 12 exceptions (§ 552a(b)(1)(12)). They are:<br />
<br />
*Internal agency use on a need to know basis;<br />
*Proper requests under FOIA;<br />
*Routine use;<br />
*Census Bureau activities;<br />
*Statistical research where the recipient has given written assurance that records are not individually identifiable;<br />
*National Archives preservation;<br />
*Information to Congress;<br />
*Information to the Comptroller General in performing Government Accountability Office (GAO) duties;<br />
*Showing of compelling circumstances affecting the health or safety of an individual;<br />
*Pursuant to court order (subpoenas issued by clerks of courts are not “orders” ''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798, 800 (N.D. Ga. 1978));<br />
*To a consumer reporting agency in accordance with 31 U.S.C. § 3711(f); and<br />
*Use by “any governmental jurisdiction . . . for a civil or criminal law enforcement activity” as long as a written request (1) is made by the head of the agency seeking the record, (2) specifies the portion of the record sought, and (3) describes the relevant enforcement activity. ''See Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
“Routine use,” considered generally the most important exception, is defined as “the use of such record for a purpose that is compatible with the purpose for which it was collected.” 5 U.S.C. § 552a(a)(7). Each routine use is identified in the ''Federal Register'' notice upon establishment or revision of each system of records. 5 U.S.C. (§ 552a(e)(4)(D). This exception permits nonconsensual intra- or interagency transfer of what is generally described as “house-keeping” information. Because the language is broad, the potential for abuse is considered great, and the courts have strictly required that the use be clearly and specifically identified in the rule adopted by the agency identifying the system of records. ''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989); ''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988); ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979). The Supreme Court has found that the Privacy Act’s provisions restricting disclosure, even while allowing disclosure for “routine uses,” are sufficient to protect persons’ constitutional right to informational privacy, if such a right exists. ''NASA v. Nelson'', 562 U.S. 134, 153-55 (2011).<br />
<br />
===Review, Relief, Remedies===<br />
The Privacy Act provides that each agency shall promulgate rules that establish, among other things, procedures of notice, disclosure, and review of requests. 5 U.S.C. § 552a(f). In the event that the rules are not followed or that a dispute persists, there are four civil actions: (1) a challenge for failure to provide access; (2) a challenge for refusal to amend; (3) a damages action for improper maintenance of the content of records; and (4) a damages action for other breaches of the Privacy Act or regulations issued thereunder that adversely affect the individual. 5 U.S.C. § 552a(g)(1). The latter two actions require proof of damages and are limited to actual damages. A cause of action for monetary damages requires a showing of an agency’s intentional or willful failure to maintain accurate records and that the violation of the Privacy Act caused the actual damages complained of. ''Molerio v. FBI'', 749 F.2d 815, 826 (D.C. Cir. 1984). Because waivers of sovereign immunity are to be strictly construed, the Supreme Court held that “actual damages” do not include nonpecuniary damages. https://tile.loc.gov/storage-services/service/ll/usrep/usrep566/usrep566284/usrep566284.pdf Fed. Aviation Admin. v. Cooper], 566 U.S. 284 (2012). Remedies for failure to grant access or refusal to amend are injunctive.<br />
<br />
An individual bringing a claim under § 552a(g)(1) must demonstrate a causal connection between the alleged violation and the harm suffered but may not use the Privacy Act claim as the forum in which to prove the entitlement the individual claims was improperly denied. ''Gizoni v. Sw. Marine, Inc.'', 909 F.2d 385 (9th Cir. 1990).<br />
<br />
Criminal penalties are established for willful disclosure of records by those who know such disclosure is prohibited, willful maintenance of a system of records without meeting the appropriate notice requirements, and knowing and willful requests for records under false pretenses. 5 U.S.C. § 552a(i). Each violation is classified as a misdemeanor, and the violator may be fined not more than $5,000. There have been at least two criminal prosecutions for unlawful disclosure of Privacy Act-protected records. ''See United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997) (finding the defendant not guilty; that the prosecution did not prove “beyond a reasonable doubt that defendant ‘willfully disclosed’ protected material”; and that the evidence presented constituted, “at best, gross negligence,” and thus was “insufficient for purposes of prosecution under § 552a(i)(1)”); ''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976) (guilty plea entered). ''See generally In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439, 1441 (D.C. Cir. 1996) (''per curiam'') (indicating the application for reimbursement of attorney fees where independent counsel found no prosecution was warranted under the Privacy Act because there was no conclusive evidence of improper disclosure of information). In a case involving the destruction of records, [https://www.cadc.uscourts.gov/internet/opinions.nsf/1E0F642CD84E034985257B3D004E4186/$file/09-5354-1427961.pdf Gerlich v. DOJ], 711 F.3d 161 (D.C. Cir. 2013), the D.C. Circuit allowed a Privacy Act claim to proceed against senior officials at the Department of Justice on the ground that they created records about appellants in the form of annotations to their applications and internet printouts concerning their political affiliations. The court relied in part on a permissive spoliation inference in light of the destruction of appellants’ records, because the senior department officials had a duty to preserve the annotated applications and internet printouts given that department investigation and future litigation were reasonably foreseeable.<br />
<br />
The Privacy Act provides a two-year statute of limitations. 5 U.S.C. § 552a(g)(5). The time begins to run when a reasonable person should have known of the alleged violation. ''Rose v. United States'', 905 F.2d 1257, 1259 (9th Cir. 1990); ''Diliberti v. United States'', 817 F.2d 1259, 1262 (7th Cir. 1987).<br />
<br />
===Computer Matching===<br />
The Privacy Act was amended in 1988 by the Computer Matching and Privacy Protection Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503]). OMB issued final guidance implementing the amendment’s provisions on June 19, 1989. [https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989)). The amendments added § 552a(o)-(q) to establish procedural safeguards affecting agencies’ use of Privacy Act records when performing computerized matching programs. The amendments require agencies to conclude written agreements specifying terms and safeguards under which matches are to be done. They provide procedures for individuals whose information is contained in the affected records to use to prevent agencies from taking adverse actions unless they have independently verified the results of matching and given the individual advance notice. Oversight is established by requiring ''Federal Register'' notice of matching agreements, reports to OMB and Congress, and the establishment of internal “data integrity boards” to oversee and coordinate the agency’s implementation of matching programs.<br />
<br />
===Relationship to the FOIA===<br />
Two provisions relate to FOIA. 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]. Section 552a(b)(2) exempts agencies from the requirement of obtaining an individual’s consent to release of information subject to disclosure under FOIA. In 1984, Congress added provisions delineating an individual’s access rights to records exempt from disclosure under FOIA or the Privacy Act. An agency must give an individual access to a record if it is accessible under either act irrespective of whether it might be withheld under the other. 5 U.S.C. § 552a(t). This gives maximum access to records by an individual whose personal information is contained therein. An accounting of the number of FOIA releases of Privacy Act information is not required. 5 U.S.C. § 552a(c)(1). If released under FOIA, the agency is relieved from ensuring the accuracy, completeness, timeliness, and relevance of the record. 5 U.S.C. § 552a(e)(6). If the system of records is made necessary by FOIA, the agency may exempt the system from the Privacy Act. 5 U.S.C. § 552a(k)(1).<br />
<br />
===Social Security Numbers===<br />
The Privacy Act restricts use of an individual’s Social Security account number. [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 7 (not codified as part of 5 U.S.C. § 552a). This provision applies to state and local governments, as well as to the federal government and makes it unlawful to deny any right, benefit, or privilege based on an individual’s failure to disclose the Social Security account number, unless the disclosure was required by any federal, state, or local system of records in operation before January 1, 1975, or the disclosure is required by federal law. Since enactment, Congress has required disclosure in the Tax Reform Act of 1976 ([http://uscode.house.gov/statutes/pl/94/455.pdf Pub. L. No. 94-455]), the Deficit Reduction Act of 1984 ([https://www.govinfo.gov/app/details/STATUTE-98/STATUTE-98-Pg494/summary Pub. L. No. 98-369]), and the Debt Collection Act of 1982 ([https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365]). In the Tax Reform Act of 1976, Congress declared it to be U.S. policy to use Social Security account numbers “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law.” Pub. L. No. 94-455, amending 42 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section405&num=0&edition=prelim 405(c)(2)].<br />
<br />
==Oversight==<br />
The Privacy Act requires OMB to develop guidelines and regulations for its implementation and to provide continuing assistance and oversight. The OMB guidelines are entitled to the usual deference accorded the interpretations of the agency charged with administration of a statute. ''Albright v. United States'', 631 F.2d 915, 919 n.5 (D.C. Cir. 1980); ''Quinn v. Stone'', 978 F.2d 126, 133 (3d Cir. 1992). However, a few courts have rejected particular aspects of the OMB guidelines as inconsistent with the statute. ''See, e.g.'', ''Kassel v. U.S. Dep’t of Veterans Affairs'', No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); [https://supreme.justia.com/cases/federal/us/540/614/ Doe v. Chao], 540 U.S. 614, 627 n.11 (2004) (disagreeing with dissent’s reliance on OMB interpretation of damages provision since the Court does “not find its unelaborated conclusion persuasive”).<br />
<br />
The vast majority of OMB’s Privacy Act guidelines are published in [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (1975). However, these original guidelines have been supplemented in particular subject areas over the years, including:<br />
<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/OMB/circulars/a130/a130revised.pdf Appendix I to OMB Circular No. A-130], most recently revised at [https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 81 Fed. Reg. 49689] (July 28, 2016)).<br />
*[https://archives.federalregister.gov/issue_slice/1975/12/4/56740-56743.pdf Implementation of the Privacy Act Supplemental Guidance], 40 Fed. Reg. 56741 (Dec. 4,1975) (system of records definition, routine use and intra-agency disclosures, consent and congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to FOIA).<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/guidance1983.pdf Guidelines on the Relationship of the Debt Collection of 1982 to the Privacy Act of 1974], 48 Fed. Reg. 15556 (Apr. 11, 1983) (relationship to Debt Collection Act).<br />
*[https://archives.federalregister.gov/issue_slice/1987/4/20/12988-12993.pdf Guidance on the Privacy Act Implications of “Call Detail” Programs to Manage Employees’ Use of the Government’s Telecommunications Systems], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf 52 Fed. Reg. 12,990-93] (Apr. 20, 1987) (“call detail” programs).<br />
*[https://archives.federalregister.gov/issue_slice/1989/6/19/25805-25829.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25,818] (June 19, 1989) (computer matching).<br />
*[https://archives.federalregister.gov/issue_slice/1991/4/23/18598-18601.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf 56 Fed. Reg. 18,599] (proposed Apr. 23, 1991) (computer matching);<br />
*[https://www.federalregister.gov/documents/1996/02/20/96-3645/management-of-federal-information-resources Management of Federal Information Resources], 61 Fed. Reg. 6428 (1996) (“Federal Agency Responsibilities for Maintaining Records About Individuals”).<br />
<br />
Thus, when researching in this area, it may be important to check subsequent supplements.<br />
<br />
In 1998, President Clinton called upon all federal agencies to take further privacy-protection steps within the next year. [https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998). Specifically, the President directed each agency to designate a senior official responsibile for the agency's privacy policy to apply the Principles for Providing and Using Personal Information, which was developed through the Information Infrastructure Task Force under the auspices of the Department of Commerce in 1995, and to review agency record systems to ensure compliance with the Privacy Act requirements. The agencies then reported the results of these reviews to OMB. The presidential memorandum also called for OMB to issue further guidance on the making of “routine use” disclosures under the Privacy Act.<br />
<br />
Section 208 of the [[E-Government Act of 2002]] (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=(title:44%20section:3501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title44-section3501)&f=treesort&edition=prelim&num=0&jumpTo=true § 3501 note]) requires that OMB issue guidance to agencies on implementing the privacy provisions of the E-Government Act. Under this guidance, agencies are required to conduct privacy impact assessments for electronic information systems and collections, make those assessments publicly available, post privacy policies on agency websites used by the public, translate privacy policies into a standardized machine-readable format, and report annually to OMB on the agency's compliance with the E-Government Act.<br />
<br />
In 2002, the Government Accountability Office (GAO) conducted an extensive review of agency Privacy Act practices and reported on its findings in June 2003. GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003). <br />
<br />
While most questions concerning the Privacy Act should first be directed to agency Privacy Act officers, important policy or litigation questions, or questions concerning the OMB guidelines, may be directed to the [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs].<br />
<br />
==Legislative History==<br />
The Privacy Act reflects the merger of seemingly disparate bills from the Senate and the House: S. 3418, introduced by Senator Sam Ervin (D-NC), and H.R. 16373, supported by the Administration. The Senate bill would have granted sweeping powers to a Federal Privacy Board for the oversight of collection, maintenance, and dissemination of individually identifiable information by both the public and private sectors, while the House bill focused on access to and correction of records, data collection, and maintenance standards. The Senate approved its bill on November 21, 1974, after consideration and, on the same day, the House bill was passed by a 353 to 1 vote, after two days of floor debate.<br />
<br />
The bills were not reconciled by the usual conference committee because of the limited time available between the end of Thanksgiving recess and the end of the session. Instead, the respective staffs of the committees studied the differing bills, reported to the committees and, after informal meetings, reached an agreement. The description of the amendments that made the two bills identical (thus avoiding a conference committee) was inserted into the record of both sides, and both houses passed identical bills. Thus, many of the most important provisions of the bill are not explained by committee reports. The only record of the final negotiations leading to the bill actually adopted is a staff memorandum entitled ''Analysis of House and Senate Compromise Amendments to the Federal Privacy Act''. ''See also'' [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S.3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976).<br />
<br />
The final product included most of the fair information practices defined in the Senate version and the access and correction provisions of the House bill. None of the Senate provisions relating to a Federal Privacy Board was included. However, the Privacy Act provided for two important means of further development and oversight. First, it instructed OMB to develop guidelines for the implementation of the Privacy Act throughout the executive branch. Second, it created the Privacy Protection Study Commission tasked with studying the issues raised by the Privacy Act and recommending further legislation. The Commission subsequently completed its thorough and informative report, [https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society].<br />
<br />
The bill was signed by President Ford on December 31, 1974 and became effective in September 1975.<br />
<br />
===Source Note===<br />
The legislative history of the original Act is exhaustively collected in [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976). <br />
<br />
The Department of Justice’s [https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition Overview of the Privacy Act of 1974] is updated periodically and discusses the extensive case law under the Privacy Act.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*Joint Comm. on Government Operations, [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy], 94th Cong. (1976).<br />
*H.R. Rep. No. 100-802 (1988).<br />
*S. Rep. No. 100-516 (1988).<br />
*''Who Cares About Privacy? Oversight of the Privacy Act of 1974 by the Office of Management and Budget and by the Congress,'' ''H.R. Rep. No. 98-455'', Hearings Before Subcomm. of the H. Comm. on Gov’t Operations, 98th Cong. (1983).<br />
*America’s Healthy Future Act of 2009, [https://www.congress.gov/111/crpt/srpt89/CRPT-111srpt89.pdf S. Rep. No. 111-89] (2009).<br />
*The Restoring American Financial Stability Act of 2010, [https://www.congress.gov/111/crpt/srpt176/CRPT-111srpt176.pdf S. Rep. No. 111-176] (2010).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. 112-689] (2012).<br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998).<br />
*Executive Order 13478, [https://www.govinfo.gov/content/pkg/FR-2008-11-20/pdf/E8-27771.pdf Amendments to Executive Order 9397 Relating to Federal Agency Use of Social Security Numbers], 73 Fed. Reg. 70,239 (Nov. 20, 2008).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2020-2, [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-2%2C%20Protected%20Materials%20CLEAN%2012%2028%202020.pdf Protected Materials in Public Rulemaking Dockets]<br />
*2021-6, [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular A-130] (2016).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A108/omb_circular_a-108.pdf Circular A-108] (2016).<br />
*[https://archives.federalregister.gov/issue_slice/1975/12/4/56740-56743.pdf Implementation of the Privacy Act of 1974, Supplementary Guidance], 40 Fed. Reg. 56741 (Dec. 4, 1975).<br />
*''Revised Supplemental Guidance for Conducting Matching Programs'', 47 Fed. Reg. 21656 (May 19, 1982).<br />
*https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/guidance1983.pdf Debt Collection Act Guidelines], 48 Fed. Reg. 15556 (Apr. 11, 1983).<br />
*[https://www.govinfo.gov/app/details/FR-1975-07-09 Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (July 9, 1975); supplemented at:<br />
**[https://archives.federalregister.gov/issue_slice/1975/12/4/56740-56743.pdf 40 Fed. Reg. 56741] (1975).<br />
**49 Fed. Reg. 12338 (1984).<br />
**[https://archives.federalregister.gov/issue_slice/1989/6/19/25805-25829.pdf 54 Fed. Reg. 25818] (1989).<br />
*''Management of Federal Information Resources'', Circular A130, 50 Fed. Reg. 52730 (Dec. 24, 1985).<br />
*[https://archives.federalregister.gov/issue_slice/1987/4/15/12283-12339.pdf Final Guidance on Privacy Act Implications of “Call Detail” Programs], 52 Fed. Reg. 12290 (Apr. 20, 1987).<br />
*[https://archives.federalregister.gov/issue_slice/1989/6/19/25805-25829.pdf Final Guidance Interpreting the Provisions of Pub. L. No. 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989).<br />
*[https://archives.federalregister.gov/issue_slice/1991/4/23/18598-18601.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], 56 Fed. Reg. 18599 (Apr. 23, 1991).<br />
*''Proposed Revision of OMB Circular A130'', 57 Fed. Reg. 18296 (Apr. 29, 1992).<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (Feb. 20, 1996).<br />
*M-0105, [https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-05-Guidance-on-Inter-Agency-Sharing-of-Personal-Data-Protecting-Personal-Privacy.pdf Guidance on Inter-Agency Sharing of Personal Data—Protecting Personal Privacy] (2000).<br />
*M-0322, [https://www.whitehouse.gov/wp-content/uploads/2017/11/203-M-03-22-OMB-Guidance-for-Implementing-the-Privacy-Provisions-of-the-E-Government-Act-of-2002-1.pdf Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002] (2003).<br />
*[https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 Revision of OMB Circular No. A-130 “Managing Information as a Strategic Resource”], 81 Fed. Reg. 49689 (July 28, 2016).<br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports on E-Government Act Implementation from 2003-2015]<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/egov_docs/egov_implementation_report_6_17_16.pdf 2015 Annual Report to Congress: E-Government Act Implementation]<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/egov/documents/omb-fy-2016-egov-act-report.pdf 2016 Annual Report to Congress: E-Government Act Implementation]<br />
*M-21-04, [https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act] (2020).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission] (1977).<br />
*Gen. Accounting Office, GAO/PEMD-87-2, [https://www.gao.gov/assets/150/144893.pdf Computer Matching: Assessing its Costs and Benefits] (1986).<br />
*Gen. Accounting Office, GAO/GGD-91-48, [https://www.gao.gov/assets/220/213974.pdf Peer Review: Compliance with the Privacy Act and the Federal Advisory Committee Act] (1991).<br />
*Gen. Accounting Office, GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003).<br />
*[https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf A Citizen’s Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records], Report by the Comm. on Oversight and Gov’t Reform, 112th Cong. (2012).<br />
*Dep’t of Justice, [https://www.justice.gov/opcl/file/793026/download Overview of the Privacy Act of 1974] (2015).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Lillian R. Bevier, [https://core.ac.uk/download/pdf/73966670.pdf Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection], 4 Wm. & Mary Bill Rights J. 455 (1991).<br />
*Babette Boliek, ''Prioritizing Privacy in the Courts and Beyond'', 103 Cornell L. Rev. 1101 (2018).<br />
*Jonathan C. Bond, Note, [http://www.gwlr.org/wp-content/uploads/2012/08/76-5-Bond.pdf Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century], 76 Geo. Wash. L. Rev. 1232 (2008).<br />
*William S. Challis & Ann Cavoukian, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1148&context=jitpl The Case for a U.S. Privacy Commissioner: A Canadian Commissioner’s Perspective], 19 J. Marshall J. Computer & Info. L. 1 (2000).<br />
*Todd Robert Coles, Comment, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1848&context=aulr Does the Privacy Act of 1974 Protect Your Right to Privacy?: An Examination of the Routine Use Exemption], 40 Am. U. L. Rev. 957 (1991).<br />
*John M. Eden, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1140&context=dltr When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID], 2005 Duke L. & Tech. Rev. 20 (2005).<br />
*Haeji Hong, [https://www.uakron.edu/dotAsset/727663.pdf Dismantling the Private Enforcement of the Privacy Act of 1974: Doe v. Chao], 38 Akron L. Rev. 71 (2005).<br />
*Margaret Hu, ''The Ironic Privacy Act'', 96 Wash. U.L. Rev. 1267 (2019).<br />
*Joseph V. Kaplan & John Mahoney, ''Reckless Disregard: Intentional and Willful Violations of the Privacy Act’s Investigatory Requirements'', 44 Fed. Law. No. 4, at 38 (1997).<br />
*Alex Kardon, [http://www.harvard-jlpp.com/wp-content/uploads/2013/10/KardonFinal.pdf Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform], 34 Harv. J. L. & Pub. Pol’y 705 (2011).<br />
*Flavio Komuves, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1243&context=jitpl We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers], 16 J. Marshall J. Computer & Info. L. 529 (1998).<br />
*Frederick Z. Lodge, Note, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2579&context=flr Damages Under the Privacy Act of 1974: Compensation and Deterrence], 52 Fordham L. Rev. 611 (1984).<br />
*Caleb A. Seeley, Note, [https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-91-5-Seeley.pdf Once More unto the Breach: The Constitutional Right to Informational Privacy and the Privacy Act], 91 N.Y.U. L. Rev. 1355 (2016).<br />
*Lisa A. Reilly, ''The Government in the Sunshine Act and the Privacy Act'', 55 Geo. Wash. L. Rev. 955 (1987).<br />
*Nicole M. Quallen, [https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4408&context=nclr Damages under the Privacy Act: Is Emotional Harm Actual], 88 N.C. L. Rev. 334 (2009).<br />
*Paul M. Schwartz, [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2572&context=facpubs Privacy and Participation: Personal Information and Public Sector Regulation in the United States], 80 Iowa L. Rev. 553 (1995).<br />
*Daniel Solove, [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2085&context=faculty_publications Identity Theft, Privacy, and the Architecture of Vulnerability], 54 Hastings L.J. 1227 (2003).<br />
*Julianne M. Sullivan, Comment, [https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=cwlr Will the Privacy Act of 1974 Still Hold Up in 2004? How Advancing Technology Has Created a Need for a Change in the “System of Records” Analysis], 39 Cal. W. L. Rev. 395 (2003).<br />
*Thomas M. Susman, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=2035&context=lawreview Privacy Act and the Freedom of Information Act: Conflict and Resolution], 21 J. Marshall L. Rev. 703 (1988).<br />
*Ari Ezra Waldman, ''Privacy Law's False Promise'', 97 Wash. U.L. Rev. 773 (2020).<br />
</div><br />
<br />
===Selected Cases Not Included in the Text===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798 (N.D. Ga. 1978).<br />
*''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
*''Albright v. United States'', 631 F.2d 915 (D.C. Cir. 1980).<br />
*''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980).<br />
*''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980).<br />
*''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981).<br />
*''Fitzpatrick v. United States'', 665 F.2d 327 (11th Cir. 1982).<br />
*''Clarkson v. IRS'', 678 F.2d 1368 (11th Cir. 1982).<br />
*''Johnson v. U.S. Dep’t of the Treasury'', 700 F.2d 971 (5th Cir. 1983).<br />
*''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
*''Molerio v. FBI'', 749 F.2d 815 (D.C. Cir. 1984).<br />
*''Elm v. Nat’l R.R. Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984).<br />
*''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
*''Vymetalik v. FBI'', 785 F.2d 1090 (D.C. Cir. 1986).<br />
*''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987).<br />
*''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988).<br />
*''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989).<br />
*''Pototsky v. U.S. Dep’t of the Navy'', 717 F. Supp. 20 (D. Mass. 1989).<br />
*''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989).<br />
*''Quinn v. Stone'', 978 F.2d 126, 133 (3rd Cir. 1992).<br />
*''Kassel v.'' U.S. ''Dep’t of Veterans Affairs'', No. 87-217-S (D.N.H. Mar. 30, 1992).<br />
*''United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997).<br />
*''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976).<br />
*''In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439 (D.C. Cir. 1996).<br />
*''Alexander v. FBI'', 971 F. Supp. 603 (D.D.C. 1997).<br />
*''Shannon v. General Elec. Co.'', 812 F. Supp. 308 (N.D.N.Y. 1993).<br />
*''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996).<br />
*[http://www.vawd.uscourts.gov/OPINIONS/WILSON/600CV0005(3).PDF Falwell v. Exec. Office of the President], 113 F. Supp. 2d 967 (W.D. Va. 2000).<br />
*''Dale v. Exec. Office of the President'', 164 F. Supp. 2d 22 (D.D.C. 2001).<br />
*''Trulock v. DOJ'', No. 00-2234, slip op. (D.D.C. Sept. 18, 2001).<br />
*''Tripp v. Exec. Office of the President'', 200 F.R.D. 140 (D.D.C. 2001).<br />
*''Broaddrick v. Exec. Office of the President'', 139 F. Supp. 2d 55 (D.D.C. 2001).<br />
*''Flowers v. Exec. Office of the President'', 142 F. Supp. 2d 38 (D.D.C. 2001).<br />
*''Jones v. Exec. Office of the President'', 167 F. Supp. 2d 10 (D.D.C. 2001).<br />
*''Sculimbrene v. Reno'', 158 F. Supp. 2d 26 (D.D.C. 2001).<br />
*''Schwarz v. U.S. Dep’t of the Treasury'', 131 F. Supp. 2d 142 (D.D.C. 2000).<br />
*''Cobell v. Norton'', 157 F. Supp. 2d 82 (D.D.C. 2001).<br />
*''Cummings v. U.S. Dep’t of the Navy'', 279 F.3d 1051 (D.C. Cir. 2002).<br />
*''McCready v. Principi'', 297 F. Supp. 2d 178 (D.D.C. 2003).<br />
*''Chang v. U.S. Dep’t of the Navy'', 314 F. Supp.2d 35 (D.D.C. 2004).<br />
*''Maydak v. United States'', 363 F.3d 512 (D.C. Cir. 2004).<br />
*[https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614 (2004).<br />
*''NASA v. Nelson'', 562 U.S. 134 (2011).<br />
*[https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 132 S. Ct. 1441 (2012).<br />
*''Logan v. U.S. Dep’t of Veterans Affairs'', 357 F. Supp. 2d 149 (D.D.C. 2004).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2006/03/13/0335877.pdf Oja v. U.S. Army Corps of Engineers], 440 F.3d 1122 (9th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/013337AFDE8A8304852574400044F8CC/$file/04-5425a.pdf McCready v. Nicholson], 465 F.3d 1 (D.C. Cir. 2006).<br />
*[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2006/D01-30/C:04-3888:J:_:aut:T:op:N:0:S:0 Bassiouni v. FBI], 436 F.3d 712 (7th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/E94B1B7BAE4935098525744000455619/$file/06-5085b.pdf Sussman v. U.S. Marshals Serv.], 494 F.3d 1106 (D.C. Cir 2007).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/9F94563D7D135A85852578000052F342/$file/07-5257-1132633.pdf Wilson v. Libby], 535 F.3d 697 (D.C. Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2008/05/02/0615191.pdf Lane v. U.S. Dep’t of the Interior], 523 F.3d 1128 (9th Cir. 2008).<br />
*[http://media.ca8.uscourts.gov/opndir/08/03/071576P.pdf Doe v. U.S. Dep’t of Veterans Affairs], 519 F.3d 456 (8th Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2009/05/21/06-15967.pdf Rouse v. U.S. Dep’t of State], 567 F.3d 408 (9th Cir. 2009).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/EAC6966EA3FE7C2885257807005C6E66/$file/07-5352-1285040.pdf Maydak v United States], 630 F.3d 166 (D.C. Cir. 2010).<br />
*[http://media.ca11.uscourts.gov/opinions/pub/files/200916154.pdf Speaker v. U.S. Dep’t of Health and Human Serv. Ctr. for Disease Control and Prevention], F.3d 1371 (11th Cir. 2010).<br />
*[https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58 Sieverding v. DOJ], 693 F. Supp. 2d 93 (D.D.C. 2010).<br />
*[http://www.opn.ca6.uscourts.gov/opinions.pdf/11a0098p-06.pdf Shearson v. DHS], 638 F.3d 498 (6th Cir. 2011).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir. 2015).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/57E67EBF550EDDAB8525822C005378F2/$file/16-5045-1716627.pdf Liff v. Office of Inspector Gen. for the U.S. Dep’t of Labor], 881 F.3d 912 (D.C. Cir. 2018).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Fazaga v. FBI], 916 F.3d 1201 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/22/17-17349.pdf Rojas v. FAA], 941 F.3d 392 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/18-15416.pdf Garris v. FBI], 937 F.3d 1284 (9th Cir. 2019).<br />
*[https://law.justia.com/cases/federal/appellate-courts/cadc/17-5117/17-5117-2019-06-21.html In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.], 928 F.3d 42 (D.C. Cir. 2019).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Privacy Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a. Records maintained on individuals]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Privacy_Act&diff=1680Privacy Act2023-08-15T21:06:40Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] (2012), enacted by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 3, 88 Stat. 1897, Dec. 31, 1974; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-89/pdf/STATUTE-89-Pg1057.pdf Pub. L. No. 94-183], § 2(2), 89 Stat. 1057, Dec. 31, 1975; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365], § 2, 96 Stat. 1749, Oct. 25, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1819.pdf Pub. L. No. 97-375], title II, § 201(a), (b), 96 Stat. 1821, Dec. 21, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2467.pdf Pub. L. No. 97-452], §2(a)(1), 96 Stat. 2478, Jan. 12, 1983; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c), 98 Stat. 2211, Oct. 15, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], title I, §107(g), 98 Stat. 2292, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503], §§ 28, 102 Stat. 2507-2514, Oct. 18, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1388.pdf Pub. L. No. 101-508], title VII, §7201(b)(1), 104 Stat. 1388-(3), Nov. 5, 1990; by [https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1466.pdf Pub. L. No. 103-66], title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107 Stat. 611, Aug. 10, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ193/pdf/PLAW-104publ193.pdf Pub. L. No. 104-193], title I, § 110(w), 110 Stat. 2175, Aug. 22, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ226/pdf/PLAW-104publ226.pdf Pub. L. No. 104-226], § 1(b)(3), 110 Stat. 3033, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ316/pdf/PLAW-104publ316.pdf Pub. L. No. 104-316], title I, § 115(g)(2)(b), 110 Stat. 3835, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ34/PLAW-105publ34.pdf Pub. L. No. 105-34], title IX, subtitle C, § 1026(b)(2), 111 Stat. 925, Aug. 5, 1997; by [https://www.govinfo.gov/content/pkg/PLAW-105publ362/pdf/PLAW-105publ362.pdf Pub. L. No. 105-362], title XIII, § 1301(d), 112 Stat.3292, Nov. 10, 1998; by [https://www.govinfo.gov/content/pkg/PLAW-108publ271/pdf/PLAW-108publ271.pdf Pub. L. No. 108-271], 118 Stat. 814, July 7, 2004; by [https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf Pub. L. No. 111-148], Title VI, § 6402(b)(2), 124 Stat. 756, Mar. 23, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203], Title X, § 1082, 124 Stat. 2080, July 21, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-113publ295/pdf/PLAW-113publ295.pdf Pub. L. No. 113-295], Div. B, Title I, § 102(c), 128 Stat. 4062, Dec. 19, 2014.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
==Overview==<br />
The Privacy Act of 1974 represents the Congressional response to concerns about government uses of information collected about private individuals. The Privacy Act gives individuals greater control over the gathering, dissemination, and accuracy of information collected about themselves by agencies. ''Miller v. United States'', 630 F. Supp. 347 (E.D.N.Y. 1986). The main purpose of the Privacy Act is to forbid disclosure unless it is required by the [[Freedom of Information Act]] (FOIA). ''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980). To protect individual privacy, the Privacy Act constrains executive branch recordkeeping, defines the individual’s right to access certain records, limits agency disclosure of records containing an individual’s private information, establishes safeguards to protect records concerning individuals, and provides remedies for agency violation of the Privacy Act’s provisions.<br />
<br />
===Scope===<br />
<br />
The Privacy Act covers records maintained by agencies as defined in FOIA. It applies to Cabinet-level departments, independent regulatory agencies, military departments, and government corporations. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(a)(1)]. It does not apply to the legislative branch, national banks (''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981)), or Amtrak (''Ehm v. National R.R.'' ''Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984), ''cert. denied'', 469 U.S. 982 (1984)). ''See Alexander v. FBI'', 971 F. Supp. 603, 606-07 (D.D.C. 1997) (recognizing that the definition of “agency” under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President’s immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, but, nevertheless rejecting such limitation with regard to “agency” as used in the Privacy Act due to the different purposes that the two statutes serve); ''Shannon v. Gen. Elec. Co.'', 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) (stating there is “no dispute” that General Electric (GE) falls within the definition of “agency” subject to requirements of the Privacy Act where, pursuant to a contract, it operated a Department of Energy-owned lab under the supervision, control, and oversight of the Department and where, by terms of the contract, GE agreed to comply with the Privacy Act).<br />
<br />
A record is a collection or grouping of information about an individual that, for example, may include educational, financial, or biographical information, together with personal identifiers such as names, photos, numbers, or fingerprints. 5 U.S.C. § 552a(a)(4). The Privacy Act does not apply to all government records and documents that may contain an individual’s name or other private information. For example, it does not include the private notes of a supervisor if such notes are not used by the agency to make decisions. ''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989). But such notes may become subject to the Privacy Act if they become part of an agency’s decision. ''Chapman v. NASA'', 682 F.2d 526 (5th Cir. 1982), ''cert. denied'', 469 U.S. 1038 (1984). The Act also does not apply to information in documents obtained from independent sources of information, even though identical information may be in an agency’s system of records. ''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
<br />
The Privacy Act focuses on “systems of records” established, maintained, or controlled by an agency. A “system of records” is a group of any records where individual names or other individual identifiers can be used to retrieve the information. 5 U.S.C. § 552a(a)(5). Agencies may maintain records covered by the Privacy Act only when they are relevant and necessary to accomplish the agency’s purpose. 5 U.S.C. § 552a(e)(1). The Court of Appeals for the District of Columbia Circuit addressed the “system of records” definition in the context of computerized information in ''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996), and noted that “the [Office of Management and Budget] guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person’s name, but the agency must in fact retrieve records in this way in order for a system of records to exist.” ''Id.'' at 1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is retrieved” in the statute’s definition of a system of records and focused on whether the agency “in practice” retrieved information. ''Id.'' at 1459-61.<br />
<br />
===Access to Records===<br />
Where the agency is authorized to keep records covered by the Privacy Act, an individual has a right of access to records concerning him or her. This is a central protection of the Privacy Act for individuals. The individual has a right to:<br />
<br />
*Copy any or all of the record (§ 552a(d)(1));<br />
*Request amendment of the record (§ 552a(d)(2)) and file a concise statement of disagreement if the agency refuses to amend the record that will be provided to all persons to whom the record is disclosed (§ 552a(d)(4)); and<br />
*Request an accounting from the agency on the date, nature, and purpose of each disclosure of the record (§ 552a(c)).<br />
<br />
The individual has an absolute right to access and need not provide any reason for seeking access. ''FTC v. Shaffner'', 626 F.2d 32 (7th Cir. 1980).<br />
<br />
===Agency Requirements=== <br />
For each system of records an agency maintains, it must:<br />
<br />
*Publish in the ''Federal Register'' the name and location of the system; the categories of individuals contained in the system; the routine use of the records; agency policies concerning the records including storage, retrieval, access, retention, and disposal; the person, including title and address, responsible for the system; the method used to notify individuals how to gain access to records about themselves; and the sources or records in the system. Any new use of the system must be noticed for comment 30 days prior to implementing the new use. Exempt systems must also be noticed. ''See, e.g.,'' 5 U.S.C.§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a(b)(3)], (e)(4), and (e)(11);<br />
*Maintain records in the system accurately, completely, and timely to ensure fairness to the individuals (§ 552a(e)(5));<br />
*Establish rules and training for persons designing, developing, operating, or maintaining the system to ensure compliance with the Privacy Act and the agency’s implementing policies (§ 552a(e)(9));<br />
*Establish safeguards for the protection of records (§ 552a(e)(10)); and<br />
*Inform government contractors of their duties under the Privacy Act (§ 552a(m)).<br />
<br />
When the agency collects information that “may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs,” the Privacy Act requires the information to be collected, to the “greatest extent practicable,” directly from the affected individual. 5 U.S.C. § 552a(e)(2). When requesting such information from individuals, the agency must disclose: (1) the authority under which collection is authorized; (2) the principal purposes for which the information is needed; (3) the routine use of the information; and (4) consequences, if any, of not providing the information. 5 U.S.C. § 552a(e)(3).<br />
<br />
The Privacy Act mandates that information maintained in agency records be as relevant and as necessary as possible to accomplish the agency’s purpose. It must also undertake to maintain the information with such accuracy and completeness as is reasonably necessary to assure fairness to the individual. In ''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987), the court sitting en banc held that an agency may satisfy this requirement by supplementing the information an individual considers damaging with the individual’s explanation or disagreement with the accuracy of the information. The court found that the agency made a reasonable effort to determine the accuracy of the information and that an adjudication of the disputed facts was not necessary for the agency’s purposes. The court said that in some cases, fairness may require a record to contain both versions of a disputed fact.<br />
<br />
Agencies are prohibited from maintaining records describing how an individual exercises First Amendment rights, unless such records are authorized by statute or are pertinent to and within the scope of authorized law enforcement activity. 5 U.S.C. § 552a(e)(7). Such records are subject to the Privacy Act even if not kept in “a system of records.” ''Clarkson v. IRS'', 678 F.2d 1368, 1373-77 (11th Cir. 1982), ''cert. denied'', 481 U.S. 1031. ''Cf. Pototsky v. U.S. Dep’t of Navy'', 717 F. Supp. 20 (D. Mass. 1989). Guidelines from the Office of Management and Budget (OMB) call for the broadest reasonable interpretation of the prohibition.<br />
<br />
===Exemptions from Access===<br />
The Privacy Act provides general (§ 552a(j)) and specific (§ 552a(k)) exemptions. These are exemptions allowing an agency to deny access to the record by the individual to whom the record pertains. The two types of exemptions are different in nature and consequences and are discretionary on the agency’s part. To be effective, the agency must first determine that a record or system of records meets the criteria for exemption under the Privacy Act and then publish the exemption as a rule under the [[Administrative Procedure Act]]’s (APA) notice-and-comment provisions. Failure to set out reasons demonstrating that the exemption meets the requirements of the Privacy Act may leave the records subject to the Privacy Act. ''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980). The exemptions do not authorize the agency to use the record in a manner other than the manner originally set out in the ''Federal Register'' establishing the system of records. ''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
A general exemption denies access by an affected individual under virtually all the Privacy Act’s provisions and is available for records maintained by the Central Intelligence Agency or by an agency whose principal functions are criminal law enforcement. The general exemption may not be used to exempt records compiled for a noncriminal or administrative purpose even if they are also a part of a system of records maintained by an agency qualified to assert the exemption. ''Vymetalik v. FBI'', 785 F.2d 1090, 1095 (D.C. Cir. 1986).<br />
<br />
The specific exemptions (§ 552a(k)(1)(7)) are available to any agency if the head of the agency promulgates rules pursuant to the notice-and-comment provisions of the [[Administrative Procedure Act|APA]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim 553]. The specific exemption is from a particular provision of the Privacy Act. The seven exemptions allowed are:<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim FOIA (b)(1) exemptions] (matters to be kept secret in the interest of national defense or foreign policy and properly classified by executive order);<br />
*Investigatory material compiled for law enforcement purposes that does not fall within the general exemption;<br />
*Material maintained to provide protective service to the President or pursuant to 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3056&num=0&edition=prelim § 3056];<br />
*Confidential investigatory records relating to employment or contracts;<br />
*Statistical records required by statute;<br />
*Testing and examination material related to federal employment; and<br />
*Evaluations related to military promotions obtained confidentially.<br />
<br />
An individual may sue to challenge a denial of access to records based on the general or specific exemptions, and the court will determine the substantive and procedural propriety of the agency’s assertion of the exemption. ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
<br />
===Restrictions on Disclosure===<br />
The Privacy Act prohibits disclosure of any record covered by the Privacy Act without the written request or prior written consent of the person whom the record concerns. 5 U.S.C. § 552a(b). The restriction on disclosure applies to any person or agency and includes any means of communication—written, oral, electronic, or mechanical [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Responsibilities for the Maintenance of Records About Individuals by Federal Agencies], 40 Fed. Reg. 28948, 28953 (July 9, 1975). Information obtained (or released) through sources independent of agency records is not “disclosure” under the Privacy Act.<br />
<br />
The general rule of nondisclosure is subject to 12 exceptions (§ 552a(b)(1)(12)). They are:<br />
<br />
*Internal agency use on a need to know basis;<br />
*Proper requests under FOIA;<br />
*Routine use;<br />
*Census Bureau activities;<br />
*Statistical research where the recipient has given written assurance that records are not individually identifiable;<br />
*National Archives preservation;<br />
*Information to Congress;<br />
*Information to the Comptroller General in performing Government Accountability Office (GAO) duties;<br />
*Showing of compelling circumstances affecting the health or safety of an individual;<br />
*Pursuant to court order (subpoenas issued by clerks of courts are not “orders” ''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798, 800 (N.D. Ga. 1978));<br />
*To a consumer reporting agency in accordance with 31 U.S.C. § 3711(f); and<br />
*Use by “any governmental jurisdiction . . . for a civil or criminal law enforcement activity” as long as a written request (1) is made by the head of the agency seeking the record, (2) specifies the portion of the record sought, and (3) describes the relevant enforcement activity. ''See Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
“Routine use,” considered generally the most important exception, is defined as “the use of such record for a purpose that is compatible with the purpose for which it was collected.” 5 U.S.C. § 552a(a)(7). Each routine use is identified in the ''Federal Register'' notice upon establishment or revision of each system of records. 5 U.S.C. (§ 552a(e)(4)(D). This exception permits nonconsensual intra- or interagency transfer of what is generally described as “house-keeping” information. Because the language is broad, the potential for abuse is considered great, and the courts have strictly required that the use be clearly and specifically identified in the rule adopted by the agency identifying the system of records. ''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989); ''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988); ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979). The Supreme Court has found that the Privacy Act’s provisions restricting disclosure, even while allowing disclosure for “routine uses,” are sufficient to protect persons’ constitutional right to informational privacy, if such a right exists. ''NASA v. Nelson'', 562 U.S. 134, 153-55 (2011).<br />
<br />
===Review, Relief, Remedies===<br />
The Privacy Act provides that each agency shall promulgate rules that establish, among other things, procedures of notice, disclosure, and review of requests. 5 U.S.C. § 552a(f). In the event that the rules are not followed or that a dispute persists, there are four civil actions: (1) a challenge for failure to provide access; (2) a challenge for refusal to amend; (3) a damages action for improper maintenance of the content of records; and (4) a damages action for other breaches of the Privacy Act or regulations issued thereunder that adversely affect the individual. 5 U.S.C. § 552a(g)(1). The latter two actions require proof of damages and are limited to actual damages. A cause of action for monetary damages requires a showing of an agency’s intentional or willful failure to maintain accurate records and that the violation of the Privacy Act caused the actual damages complained of. ''Molerio v. FBI'', 749 F.2d 815, 826 (D.C. Cir. 1984). Because waivers of sovereign immunity are to be strictly construed, the Supreme Court held that “actual damages” do not include nonpecuniary damages. https://tile.loc.gov/storage-services/service/ll/usrep/usrep566/usrep566284/usrep566284.pdf Fed. Aviation Admin. v. Cooper], 566 U.S. 284 (2012). Remedies for failure to grant access or refusal to amend are injunctive.<br />
<br />
An individual bringing a claim under § 552a(g)(1) must demonstrate a causal connection between the alleged violation and the harm suffered but may not use the Privacy Act claim as the forum in which to prove the entitlement the individual claims was improperly denied. ''Gizoni v. Sw. Marine, Inc.'', 909 F.2d 385 (9th Cir. 1990).<br />
<br />
Criminal penalties are established for willful disclosure of records by those who know such disclosure is prohibited, willful maintenance of a system of records without meeting the appropriate notice requirements, and knowing and willful requests for records under false pretenses. 5 U.S.C. § 552a(i). Each violation is classified as a misdemeanor, and the violator may be fined not more than $5,000. There have been at least two criminal prosecutions for unlawful disclosure of Privacy Act-protected records. ''See United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997) (finding the defendant not guilty; that the prosecution did not prove “beyond a reasonable doubt that defendant ‘willfully disclosed’ protected material”; and that the evidence presented constituted, “at best, gross negligence,” and thus was “insufficient for purposes of prosecution under § 552a(i)(1)”); ''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976) (guilty plea entered). ''See generally In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439, 1441 (D.C. Cir. 1996) (''per curiam'') (indicating the application for reimbursement of attorney fees where independent counsel found no prosecution was warranted under the Privacy Act because there was no conclusive evidence of improper disclosure of information). In a case involving the destruction of records, [https://www.cadc.uscourts.gov/internet/opinions.nsf/1E0F642CD84E034985257B3D004E4186/$file/09-5354-1427961.pdf Gerlich v. DOJ], 711 F.3d 161 (D.C. Cir. 2013), the D.C. Circuit allowed a Privacy Act claim to proceed against senior officials at the Department of Justice on the ground that they created records about appellants in the form of annotations to their applications and internet printouts concerning their political affiliations. The court relied in part on a permissive spoliation inference in light of the destruction of appellants’ records, because the senior department officials had a duty to preserve the annotated applications and internet printouts given that department investigation and future litigation were reasonably foreseeable.<br />
<br />
The Privacy Act provides a two-year statute of limitations. 5 U.S.C. § 552a(g)(5). The time begins to run when a reasonable person should have known of the alleged violation. ''Rose v. United States'', 905 F.2d 1257, 1259 (9th Cir. 1990); ''Diliberti v. United States'', 817 F.2d 1259, 1262 (7th Cir. 1987).<br />
<br />
===Computer Matching===<br />
The Privacy Act was amended in 1988 by the Computer Matching and Privacy Protection Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503]). OMB issued final guidance implementing the amendment’s provisions on June 19, 1989. [https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989)). The amendments added § 552a(o)-(q) to establish procedural safeguards affecting agencies’ use of Privacy Act records when performing computerized matching programs. The amendments require agencies to conclude written agreements specifying terms and safeguards under which matches are to be done. They provide procedures for individuals whose information is contained in the affected records to use to prevent agencies from taking adverse actions unless they have independently verified the results of matching and given the individual advance notice. Oversight is established by requiring ''Federal Register'' notice of matching agreements, reports to OMB and Congress, and the establishment of internal “data integrity boards” to oversee and coordinate the agency’s implementation of matching programs.<br />
<br />
===Relationship to the FOIA===<br />
Two provisions relate to FOIA. 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]. Section 552a(b)(2) exempts agencies from the requirement of obtaining an individual’s consent to release of information subject to disclosure under FOIA. In 1984, Congress added provisions delineating an individual’s access rights to records exempt from disclosure under FOIA or the Privacy Act. An agency must give an individual access to a record if it is accessible under either act irrespective of whether it might be withheld under the other. 5 U.S.C. § 552a(t). This gives maximum access to records by an individual whose personal information is contained therein. An accounting of the number of FOIA releases of Privacy Act information is not required. 5 U.S.C. § 552a(c)(1). If released under FOIA, the agency is relieved from ensuring the accuracy, completeness, timeliness, and relevance of the record. 5 U.S.C. § 552a(e)(6). If the system of records is made necessary by FOIA, the agency may exempt the system from the Privacy Act. 5 U.S.C. § 552a(k)(1).<br />
<br />
===Social Security Numbers===<br />
The Privacy Act restricts use of an individual’s Social Security account number. [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 7 (not codified as part of 5 U.S.C. § 552a). This provision applies to state and local governments, as well as to the federal government and makes it unlawful to deny any right, benefit, or privilege based on an individual’s failure to disclose the Social Security account number, unless the disclosure was required by any federal, state, or local system of records in operation before January 1, 1975, or the disclosure is required by federal law. Since enactment, Congress has required disclosure in the Tax Reform Act of 1976 ([http://uscode.house.gov/statutes/pl/94/455.pdf Pub. L. No. 94-455]), the Deficit Reduction Act of 1984 ([https://www.govinfo.gov/app/details/STATUTE-98/STATUTE-98-Pg494/summary Pub. L. No. 98-369]), and the Debt Collection Act of 1982 ([https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365]). In the Tax Reform Act of 1976, Congress declared it to be U.S. policy to use Social Security account numbers “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law.” Pub. L. No. 94-455, amending 42 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section405&num=0&edition=prelim 405(c)(2)].<br />
<br />
==Oversight==<br />
The Privacy Act requires OMB to develop guidelines and regulations for its implementation and to provide continuing assistance and oversight. The OMB guidelines are entitled to the usual deference accorded the interpretations of the agency charged with administration of a statute. ''Albright v. United States'', 631 F.2d 915, 919 n.5 (D.C. Cir. 1980); ''Quinn v. Stone'', 978 F.2d 126, 133 (3d Cir. 1992). However, a few courts have rejected particular aspects of the OMB guidelines as inconsistent with the statute. ''See, e.g.'', ''Kassel v. U.S. Dep’t of Veterans Affairs'', No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); [https://supreme.justia.com/cases/federal/us/540/614/ Doe v. Chao], 540 U.S. 614, 627 n.11 (2004) (disagreeing with dissent’s reliance on OMB interpretation of damages provision since the Court does “not find its unelaborated conclusion persuasive”).<br />
<br />
The vast majority of OMB’s Privacy Act guidelines are published in [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (1975). However, these original guidelines have been supplemented in particular subject areas over the years, including:<br />
<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/OMB/circulars/a130/a130revised.pdf Appendix I to OMB Circular No. A-130], most recently revised at [https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 81 Fed. Reg. 49689] (July 28, 2016)).<br />
*[https://archives.federalregister.gov/issue_slice/1975/12/4/56740-56743.pdf Implementation of the Privacy Act Supplemental Guidance], 40 Fed. Reg. 56741 (Dec. 4,1975) (system of records definition, routine use and intra-agency disclosures, consent and congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to FOIA).<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/guidance1983.pdf Guidelines on the Relationship of the Debt Collection of 1982 to the Privacy Act of 1974], 48 Fed. Reg. 15556 (Apr. 11, 1983) (relationship to Debt Collection Act).<br />
*[https://archives.federalregister.gov/issue_slice/1987/4/20/12988-12993.pdf Guidance on the Privacy Act Implications of “Call Detail” Programs to Manage Employees’ Use of the Government’s Telecommunications Systems], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf 52 Fed. Reg. 12,990-93] (Apr. 20, 1987) (“call detail” programs).<br />
*[https://archives.federalregister.gov/issue_slice/1989/6/19/25805-25829.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25,818] (June 19, 1989) (computer matching).<br />
*[https://archives.federalregister.gov/issue_slice/1991/4/23/18598-18601.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf 56 Fed. Reg. 18,599] (proposed Apr. 23, 1991) (computer matching);<br />
*[https://www.federalregister.gov/documents/1996/02/20/96-3645/management-of-federal-information-resources Management of Federal Information Resources], 61 Fed. Reg. 6428 (1996) (“Federal Agency Responsibilities for Maintaining Records About Individuals”).<br />
<br />
Thus, when researching in this area, it may be important to check subsequent supplements.<br />
<br />
In 1998, President Clinton called upon all federal agencies to take further privacy-protection steps within the next year. [https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998). Specifically, the President directed each agency to designate a senior official responsibile for the agency's privacy policy to apply the Principles for Providing and Using Personal Information, which was developed through the Information Infrastructure Task Force under the auspices of the Department of Commerce in 1995, and to review agency record systems to ensure compliance with the Privacy Act requirements. The agencies then reported the results of these reviews to OMB. The presidential memorandum also called for OMB to issue further guidance on the making of “routine use” disclosures under the Privacy Act.<br />
<br />
Section 208 of the [[E-Government Act of 2002]] (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=(title:44%20section:3501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title44-section3501)&f=treesort&edition=prelim&num=0&jumpTo=true § 3501 note]) requires that OMB issue guidance to agencies on implementing the privacy provisions of the E-Government Act. Under this guidance, agencies are required to conduct privacy impact assessments for electronic information systems and collections, make those assessments publicly available, post privacy policies on agency websites used by the public, translate privacy policies into a standardized machine-readable format, and report annually to OMB on the agency's compliance with the E-Government Act.<br />
<br />
In 2002, the Government Accountability Office (GAO) conducted an extensive review of agency Privacy Act practices and reported on its findings in June 2003. GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003). <br />
<br />
While most questions concerning the Privacy Act should first be directed to agency Privacy Act officers, important policy or litigation questions, or questions concerning the OMB guidelines, may be directed to the [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs].<br />
<br />
==Legislative History==<br />
The Privacy Act reflects the merger of seemingly disparate bills from the Senate and the House: S. 3418, introduced by Senator Sam Ervin (D-NC), and H.R. 16373, supported by the Administration. The Senate bill would have granted sweeping powers to a Federal Privacy Board for the oversight of collection, maintenance, and dissemination of individually identifiable information by both the public and private sectors, while the House bill focused on access to and correction of records, data collection, and maintenance standards. The Senate approved its bill on November 21, 1974, after consideration and, on the same day, the House bill was passed by a 353 to 1 vote, after two days of floor debate.<br />
<br />
The bills were not reconciled by the usual conference committee because of the limited time available between the end of Thanksgiving recess and the end of the session. Instead, the respective staffs of the committees studied the differing bills, reported to the committees and, after informal meetings, reached an agreement. The description of the amendments that made the two bills identical (thus avoiding a conference committee) was inserted into the record of both sides, and both houses passed identical bills. Thus, many of the most important provisions of the bill are not explained by committee reports. The only record of the final negotiations leading to the bill actually adopted is a staff memorandum entitled ''Analysis of House and Senate Compromise Amendments to the Federal Privacy Act''. ''See also'' [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S.3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976).<br />
<br />
The final product included most of the fair information practices defined in the Senate version and the access and correction provisions of the House bill. None of the Senate provisions relating to a Federal Privacy Board was included. However, the Privacy Act provided for two important means of further development and oversight. First, it instructed OMB to develop guidelines for the implementation of the Privacy Act throughout the executive branch. Second, it created the Privacy Protection Study Commission tasked with studying the issues raised by the Privacy Act and recommending further legislation. The Commission subsequently completed its thorough and informative report, [https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society].<br />
<br />
The bill was signed by President Ford on December 31, 1974 and became effective in September 1975.<br />
<br />
===Source Note===<br />
The legislative history of the original Act is exhaustively collected in [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976). <br />
<br />
The Department of Justice’s [https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition Overview of the Privacy Act of 1974] is updated periodically and discusses the extensive case law under the Privacy Act.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*Joint Comm. on Government Operations, [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy], 94th Cong. (1976).<br />
*H.R. Rep. No. 100-802 (1988).<br />
*S. Rep. No. 100-516 (1988).<br />
*''Who Cares About Privacy? Oversight of the Privacy Act of 1974 by the Office of Management and Budget and by the Congress,'' ''H.R. Rep. No. 98-455'', Hearings Before Subcomm. of the H. Comm. on Gov’t Operations, 98th Cong. (1983).<br />
*America’s Healthy Future Act of 2009, [https://www.congress.gov/111/crpt/srpt89/CRPT-111srpt89.pdf S. Rep. No. 111-89] (2009).<br />
*The Restoring American Financial Stability Act of 2010, [https://www.congress.gov/111/crpt/srpt176/CRPT-111srpt176.pdf S. Rep. No. 111-176] (2010).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. 112-689] (2012).<br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998).<br />
*Executive Order 13478, [https://www.govinfo.gov/content/pkg/FR-2008-11-20/pdf/E8-27771.pdf Amendments to Executive Order 9397 Relating to Federal Agency Use of Social Security Numbers], 73 Fed. Reg. 70239 (Nov. 20, 2008).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2020-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-2%2C%20Protected%20Materials%20CLEAN%2012%2028%202020.pdf Protected Materials in Public Rulemaking Dockets]<br />
*2021-6 [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Circular A-108] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act of 1974, Supplementary Guidance], 40 Fed. Reg. 56741 (Dec. 4, 1975).<br />
*''Revised Supplemental Guidance for Conducting Matching Programs'', 47 Fed. Reg. 21656 (May 19, 1982).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Debt Collection Act Guidelines], 48 Fed. Reg. 15556 (Apr. 11, 1983).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (July 9, 1975); supplemented at:<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf 40 Fed. Reg. 56741] (1975).<br />
**49 Fed. Reg. 12338 (1984).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (1989).<br />
*''Management of Federal Information Resources'', Circular A130, 50 Fed. Reg. 52730 (Dec. 24, 1985).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Final Guidance on Privacy Act Implications of “Call Detail” Programs], 52 Fed. Reg. 12290 (Apr. 20, 1987).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Pub. L. No. 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], 56 Fed. Reg. 18599 (Apr. 23, 1991).<br />
*''Proposed Revision of OMB Circular A130'', 57 Fed. Reg. 18296 (Apr. 29, 1992).<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (Feb. 20, 1996).<br />
*M-0105, [https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-05-Guidance-on-Inter-Agency-Sharing-of-Personal-Data-Protecting-Personal-Privacy.pdf Guidance on Inter-Agency Sharing of Personal Data—Protecting Personal Privacy] (2000).<br />
*M-0322, [https://www.whitehouse.gov/wp-content/uploads/2017/11/203-M-03-22-OMB-Guidance-for-Implementing-the-Privacy-Provisions-of-the-E-Government-Act-of-2002-1.pdf Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002] (2003).<br />
*[https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 Revision of OMB Circular No. A-130 “Managing Information as a Strategic Resource”], 81 Fed. Reg. 49689 (July 28, 2016).<br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports on E-Government Act Implementation from 2003-2015]<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/egov_docs/egov_implementation_report_6_17_16.pdf 2015 Annual Report to Congress: E-Government Act Implementation]<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/egov/documents/omb-fy-2016-egov-act-report.pdf 2016 Annual Report to Congress: E-Government Act Implementation]<br />
*M-21-04, [https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act] (2020).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission] (1977).<br />
*Gen. Accounting Office, GAO/PEMD-87-2, [https://www.gao.gov/assets/150/144893.pdf Computer Matching: Assessing its Costs and Benefits] (1986).<br />
*Gen. Accounting Office, GAO/GGD-91-48, [https://www.gao.gov/assets/220/213974.pdf Peer Review: Compliance with the Privacy Act and the Federal Advisory Committee Act] (1991).<br />
*Gen. Accounting Office, GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003).<br />
*[https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf A Citizen’s Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records], Report by the Comm. on Oversight and Gov’t Reform, 112th Cong. (2012).<br />
*Dep’t of Justice, [https://www.justice.gov/opcl/file/793026/download Overview of the Privacy Act of 1974] (2015).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Lillian R. Bevier, [https://core.ac.uk/download/pdf/73966670.pdf Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection], 4 Wm. & Mary Bill Rights J. 455 (1991).<br />
*Babette Boliek, ''Prioritizing Privacy in the Courts and Beyond'', 103 Cornell L. Rev. 1101 (2018).<br />
*Jonathan C. Bond, Note, [http://www.gwlr.org/wp-content/uploads/2012/08/76-5-Bond.pdf Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century], 76 Geo. Wash. L. Rev. 1232 (2008).<br />
*William S. Challis & Ann Cavoukian, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1148&context=jitpl The Case for a U.S. Privacy Commissioner: A Canadian Commissioner’s Perspective], 19 J. Marshall J. Computer & Info. L. 1 (2000).<br />
*Todd Robert Coles, Comment, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1848&context=aulr Does the Privacy Act of 1974 Protect Your Right to Privacy?: An Examination of the Routine Use Exemption], 40 Am. U. L. Rev. 957 (1991).<br />
*John M. Eden, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1140&context=dltr When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID], 2005 Duke L. & Tech. Rev. 20 (2005).<br />
*Haeji Hong, [https://www.uakron.edu/dotAsset/727663.pdf Dismantling the Private Enforcement of the Privacy Act of 1974: Doe v. Chao], 38 Akron L. Rev. 71 (2005).<br />
*Margaret Hu, ''The Ironic Privacy Act'', 96 Wash. U.L. Rev. 1267 (2019).<br />
*Joseph V. Kaplan & John Mahoney, ''Reckless Disregard: Intentional and Willful Violations of the Privacy Act’s Investigatory Requirements'', 44 Fed. Law. No. 4, at 38 (1997).<br />
*Alex Kardon, [http://www.harvard-jlpp.com/wp-content/uploads/2013/10/KardonFinal.pdf Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform], 34 Harv. J. L. & Pub. Pol’y 705 (2011).<br />
*Flavio Komuves, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1243&context=jitpl We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers], 16 J. Marshall J. Computer & Info. L. 529 (1998).<br />
*Frederick Z. Lodge, Note, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2579&context=flr Damages Under the Privacy Act of 1974: Compensation and Deterrence], 52 Fordham L. Rev. 611 (1984).<br />
*Caleb A. Seeley, Note, [https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-91-5-Seeley.pdf Once More unto the Breach: The Constitutional Right to Informational Privacy and the Privacy Act], 91 N.Y.U. L. Rev. 1355 (2016).<br />
*Lisa A. Reilly, ''The Government in the Sunshine Act and the Privacy Act'', 55 Geo. Wash. L. Rev. 955 (1987).<br />
*Nicole M. Quallen, [https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4408&context=nclr Damages under the Privacy Act: Is Emotional Harm Actual], 88 N.C. L. Rev. 334 (2009).<br />
*Paul M. Schwartz, [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2572&context=facpubs Privacy and Participation: Personal Information and Public Sector Regulation in the United States], 80 Iowa L. Rev. 553 (1995).<br />
*Daniel Solove, [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2085&context=faculty_publications Identity Theft, Privacy, and the Architecture of Vulnerability], 54 Hastings L.J. 1227 (2003).<br />
*Julianne M. Sullivan, Comment, [https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=cwlr Will the Privacy Act of 1974 Still Hold Up in 2004? How Advancing Technology Has Created a Need for a Change in the “System of Records” Analysis], 39 Cal. W. L. Rev. 395 (2003).<br />
*Thomas M. Susman, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=2035&context=lawreview Privacy Act and the Freedom of Information Act: Conflict and Resolution], 21 J. Marshall L. Rev. 703 (1988).<br />
*Ari Ezra Waldman, ''Privacy Law's False Promise'', 97 Wash. U.L. Rev. 773 (2020).<br />
</div><br />
<br />
===Selected Cases Not Included in the Text===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798 (N.D. Ga. 1978).<br />
*''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
*''Albright v. United States'', 631 F.2d 915 (D.C. Cir. 1980).<br />
*''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980).<br />
*''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980).<br />
*''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981).<br />
*''Fitzpatrick v. United States'', 665 F.2d 327 (11th Cir. 1982).<br />
*''Clarkson v. IRS'', 678 F.2d 1368 (11th Cir. 1982).<br />
*''Johnson v. U.S. Dep’t of the Treasury'', 700 F.2d 971 (5th Cir. 1983).<br />
*''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
*''Molerio v. FBI'', 749 F.2d 815 (D.C. Cir. 1984).<br />
*''Elm v. Nat’l R.R. Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984).<br />
*''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
*''Vymetalik v. FBI'', 785 F.2d 1090 (D.C. Cir. 1986).<br />
*''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987).<br />
*''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988).<br />
*''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989).<br />
*''Pototsky v. U.S. Dep’t of the Navy'', 717 F. Supp. 20 (D. Mass. 1989).<br />
*''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989).<br />
*''Quinn v. Stone'', 978 F.2d 126, 133 (3rd Cir. 1992).<br />
*''Kassel v.'' U.S. ''Dep’t of Veterans Affairs'', No. 87-217-S (D.N.H. Mar. 30, 1992).<br />
*''United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997).<br />
*''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976).<br />
*''In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439 (D.C. Cir. 1996).<br />
*''Alexander v. FBI'', 971 F. Supp. 603 (D.D.C. 1997).<br />
*''Shannon v. General Elec. Co.'', 812 F. Supp. 308 (N.D.N.Y. 1993).<br />
*''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996).<br />
*[http://www.vawd.uscourts.gov/OPINIONS/WILSON/600CV0005(3).PDF Falwell v. Exec. Office of the President], 113 F. Supp. 2d 967 (W.D. Va. 2000).<br />
*''Dale v. Exec. Office of the President'', 164 F. Supp. 2d 22 (D.D.C. 2001).<br />
*''Trulock v. DOJ'', No. 00-2234, slip op. (D.D.C. Sept. 18, 2001).<br />
*''Tripp v. Exec. Office of the President'', 200 F.R.D. 140 (D.D.C. 2001).<br />
*''Broaddrick v. Exec. Office of the President'', 139 F. Supp. 2d 55 (D.D.C. 2001).<br />
*''Flowers v. Exec. Office of the President'', 142 F. Supp. 2d 38 (D.D.C. 2001).<br />
*''Jones v. Exec. Office of the President'', 167 F. Supp. 2d 10 (D.D.C. 2001).<br />
*''Sculimbrene v. Reno'', 158 F. Supp. 2d 26 (D.D.C. 2001).<br />
*''Schwarz v. U.S. Dep’t of the Treasury'', 131 F. Supp. 2d 142 (D.D.C. 2000).<br />
*''Cobell v. Norton'', 157 F. Supp. 2d 82 (D.D.C. 2001).<br />
*''Cummings v. U.S. Dep’t of the Navy'', 279 F.3d 1051 (D.C. Cir. 2002).<br />
*''McCready v. Principi'', 297 F. Supp. 2d 178 (D.D.C. 2003).<br />
*''Chang v. U.S. Dep’t of the Navy'', 314 F. Supp.2d 35 (D.D.C. 2004).<br />
*''Maydak v. United States'', 363 F.3d 512 (D.C. Cir. 2004).<br />
*[https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614 (2004).<br />
*''NASA v. Nelson'', 562 U.S. 134 (2011).<br />
*[https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 132 S. Ct. 1441 (2012).<br />
*''Logan v. U.S. Dep’t of Veterans Affairs'', 357 F. Supp. 2d 149 (D.D.C. 2004).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2006/03/13/0335877.pdf Oja v. U.S. Army Corps of Engineers], 440 F.3d 1122 (9th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/013337AFDE8A8304852574400044F8CC/$file/04-5425a.pdf McCready v. Nicholson], 465 F.3d 1 (D.C. Cir. 2006).<br />
*[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2006/D01-30/C:04-3888:J:_:aut:T:op:N:0:S:0 Bassiouni v. FBI], 436 F.3d 712 (7th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/E94B1B7BAE4935098525744000455619/$file/06-5085b.pdf Sussman v. U.S. Marshals Serv.], 494 F.3d 1106 (D.C. Cir 2007).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/9F94563D7D135A85852578000052F342/$file/07-5257-1132633.pdf Wilson v. Libby], 535 F.3d 697 (D.C. Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2008/05/02/0615191.pdf Lane v. U.S. Dep’t of the Interior], 523 F.3d 1128 (9th Cir. 2008).<br />
*[http://media.ca8.uscourts.gov/opndir/08/03/071576P.pdf Doe v. U.S. Dep’t of Veterans Affairs], 519 F.3d 456 (8th Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2009/05/21/06-15967.pdf Rouse v. U.S. Dep’t of State], 567 F.3d 408 (9th Cir. 2009).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/EAC6966EA3FE7C2885257807005C6E66/$file/07-5352-1285040.pdf Maydak v United States], 630 F.3d 166 (D.C. Cir. 2010).<br />
*[http://media.ca11.uscourts.gov/opinions/pub/files/200916154.pdf Speaker v. U.S. Dep’t of Health and Human Serv. Ctr. for Disease Control and Prevention], F.3d 1371 (11th Cir. 2010).<br />
*[https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58 Sieverding v. DOJ], 693 F. Supp. 2d 93 (D.D.C. 2010).<br />
*[http://www.opn.ca6.uscourts.gov/opinions.pdf/11a0098p-06.pdf Shearson v. DHS], 638 F.3d 498 (6th Cir. 2011).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir. 2015).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/57E67EBF550EDDAB8525822C005378F2/$file/16-5045-1716627.pdf Liff v. Office of Inspector Gen. for the U.S. Dep’t of Labor], 881 F.3d 912 (D.C. Cir. 2018).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Fazaga v. FBI], 916 F.3d 1201 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/22/17-17349.pdf Rojas v. FAA], 941 F.3d 392 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/18-15416.pdf Garris v. FBI], 937 F.3d 1284 (9th Cir. 2019).<br />
*[https://law.justia.com/cases/federal/appellate-courts/cadc/17-5117/17-5117-2019-06-21.html In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.], 928 F.3d 42 (D.C. Cir. 2019).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Privacy Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a. Records maintained on individuals]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Privacy_Act&diff=1679Privacy Act2023-08-15T21:03:52Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] (2012), enacted by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 3, 88 Stat. 1897, Dec. 31, 1974; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-89/pdf/STATUTE-89-Pg1057.pdf Pub. L. No. 94-183], § 2(2), 89 Stat. 1057, Dec. 31, 1975; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365], § 2, 96 Stat. 1749, Oct. 25, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1819.pdf Pub. L. No. 97-375], title II, § 201(a), (b), 96 Stat. 1821, Dec. 21, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2467.pdf Pub. L. No. 97-452], §2(a)(1), 96 Stat. 2478, Jan. 12, 1983; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c), 98 Stat. 2211, Oct. 15, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], title I, §107(g), 98 Stat. 2292, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503], §§ 28, 102 Stat. 2507-2514, Oct. 18, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1388.pdf Pub. L. No. 101-508], title VII, §7201(b)(1), 104 Stat. 1388-(3), Nov. 5, 1990; by [https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1466.pdf Pub. L. No. 103-66], title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107 Stat. 611, Aug. 10, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ193/pdf/PLAW-104publ193.pdf Pub. L. No. 104-193], title I, § 110(w), 110 Stat. 2175, Aug. 22, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ226/pdf/PLAW-104publ226.pdf Pub. L. No. 104-226], § 1(b)(3), 110 Stat. 3033, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ316/pdf/PLAW-104publ316.pdf Pub. L. No. 104-316], title I, § 115(g)(2)(b), 110 Stat. 3835, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ34/PLAW-105publ34.pdf Pub. L. No. 105-34], title IX, subtitle C, § 1026(b)(2), 111 Stat. 925, Aug. 5, 1997; by [https://www.govinfo.gov/content/pkg/PLAW-105publ362/pdf/PLAW-105publ362.pdf Pub. L. No. 105-362], title XIII, § 1301(d), 112 Stat.3292, Nov. 10, 1998; by [https://www.govinfo.gov/content/pkg/PLAW-108publ271/pdf/PLAW-108publ271.pdf Pub. L. No. 108-271], 118 Stat. 814, July 7, 2004; by [https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf Pub. L. No. 111-148], Title VI, § 6402(b)(2), 124 Stat. 756, Mar. 23, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203], Title X, § 1082, 124 Stat. 2080, July 21, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-113publ295/pdf/PLAW-113publ295.pdf Pub. L. No. 113-295], Div. B, Title I, § 102(c), 128 Stat. 4062, Dec. 19, 2014.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
==Overview==<br />
The Privacy Act of 1974 represents the Congressional response to concerns about government uses of information collected about private individuals. The Privacy Act gives individuals greater control over the gathering, dissemination, and accuracy of information collected about themselves by agencies. ''Miller v. United States'', 630 F. Supp. 347 (E.D.N.Y. 1986). The main purpose of the Privacy Act is to forbid disclosure unless it is required by the [[Freedom of Information Act]] (FOIA). ''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980). To protect individual privacy, the Privacy Act constrains executive branch recordkeeping, defines the individual’s right to access certain records, limits agency disclosure of records containing an individual’s private information, establishes safeguards to protect records concerning individuals, and provides remedies for agency violation of the Privacy Act’s provisions.<br />
<br />
===Scope===<br />
<br />
The Privacy Act covers records maintained by agencies as defined in FOIA. It applies to Cabinet-level departments, independent regulatory agencies, military departments, and government corporations. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(a)(1)]. It does not apply to the legislative branch, national banks (''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981)), or Amtrak (''Ehm v. National R.R.'' ''Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984), ''cert. denied'', 469 U.S. 982 (1984)). ''See Alexander v. FBI'', 971 F. Supp. 603, 606-07 (D.D.C. 1997) (recognizing that the definition of “agency” under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President’s immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, but, nevertheless rejecting such limitation with regard to “agency” as used in the Privacy Act due to the different purposes that the two statutes serve); ''Shannon v. Gen. Elec. Co.'', 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) (stating there is “no dispute” that General Electric (GE) falls within the definition of “agency” subject to requirements of the Privacy Act where, pursuant to a contract, it operated a Department of Energy-owned lab under the supervision, control, and oversight of the Department and where, by terms of the contract, GE agreed to comply with the Privacy Act).<br />
<br />
A record is a collection or grouping of information about an individual that, for example, may include educational, financial, or biographical information, together with personal identifiers such as names, photos, numbers, or fingerprints. 5 U.S.C. § 552a(a)(4). The Privacy Act does not apply to all government records and documents that may contain an individual’s name or other private information. For example, it does not include the private notes of a supervisor if such notes are not used by the agency to make decisions. ''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989). But such notes may become subject to the Privacy Act if they become part of an agency’s decision. ''Chapman v. NASA'', 682 F.2d 526 (5th Cir. 1982), ''cert. denied'', 469 U.S. 1038 (1984). The Act also does not apply to information in documents obtained from independent sources of information, even though identical information may be in an agency’s system of records. ''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
<br />
The Privacy Act focuses on “systems of records” established, maintained, or controlled by an agency. A “system of records” is a group of any records where individual names or other individual identifiers can be used to retrieve the information. 5 U.S.C. § 552a(a)(5). Agencies may maintain records covered by the Privacy Act only when they are relevant and necessary to accomplish the agency’s purpose. 5 U.S.C. § 552a(e)(1). The Court of Appeals for the District of Columbia Circuit addressed the “system of records” definition in the context of computerized information in ''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996), and noted that “the [Office of Management and Budget] guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person’s name, but the agency must in fact retrieve records in this way in order for a system of records to exist.” ''Id.'' at 1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is retrieved” in the statute’s definition of a system of records and focused on whether the agency “in practice” retrieved information. ''Id.'' at 1459-61.<br />
<br />
===Access to Records===<br />
Where the agency is authorized to keep records covered by the Privacy Act, an individual has a right of access to records concerning him or her. This is a central protection of the Privacy Act for individuals. The individual has a right to:<br />
<br />
*Copy any or all of the record (§ 552a(d)(1));<br />
*Request amendment of the record (§ 552a(d)(2)) and file a concise statement of disagreement if the agency refuses to amend the record that will be provided to all persons to whom the record is disclosed (§ 552a(d)(4)); and<br />
*Request an accounting from the agency on the date, nature, and purpose of each disclosure of the record (§ 552a(c)).<br />
<br />
The individual has an absolute right to access and need not provide any reason for seeking access. ''FTC v. Shaffner'', 626 F.2d 32 (7th Cir. 1980).<br />
<br />
===Agency Requirements=== <br />
For each system of records an agency maintains, it must:<br />
<br />
*Publish in the ''Federal Register'' the name and location of the system; the categories of individuals contained in the system; the routine use of the records; agency policies concerning the records including storage, retrieval, access, retention, and disposal; the person, including title and address, responsible for the system; the method used to notify individuals how to gain access to records about themselves; and the sources or records in the system. Any new use of the system must be noticed for comment 30 days prior to implementing the new use. Exempt systems must also be noticed. ''See, e.g.,'' 5 U.S.C.§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a(b)(3)], (e)(4), and (e)(11);<br />
*Maintain records in the system accurately, completely, and timely to ensure fairness to the individuals (§ 552a(e)(5));<br />
*Establish rules and training for persons designing, developing, operating, or maintaining the system to ensure compliance with the Privacy Act and the agency’s implementing policies (§ 552a(e)(9));<br />
*Establish safeguards for the protection of records (§ 552a(e)(10)); and<br />
*Inform government contractors of their duties under the Privacy Act (§ 552a(m)).<br />
<br />
When the agency collects information that “may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs,” the Privacy Act requires the information to be collected, to the “greatest extent practicable,” directly from the affected individual. 5 U.S.C. § 552a(e)(2). When requesting such information from individuals, the agency must disclose: (1) the authority under which collection is authorized; (2) the principal purposes for which the information is needed; (3) the routine use of the information; and (4) consequences, if any, of not providing the information. 5 U.S.C. § 552a(e)(3).<br />
<br />
The Privacy Act mandates that information maintained in agency records be as relevant and as necessary as possible to accomplish the agency’s purpose. It must also undertake to maintain the information with such accuracy and completeness as is reasonably necessary to assure fairness to the individual. In ''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987), the court sitting en banc held that an agency may satisfy this requirement by supplementing the information an individual considers damaging with the individual’s explanation or disagreement with the accuracy of the information. The court found that the agency made a reasonable effort to determine the accuracy of the information and that an adjudication of the disputed facts was not necessary for the agency’s purposes. The court said that in some cases, fairness may require a record to contain both versions of a disputed fact.<br />
<br />
Agencies are prohibited from maintaining records describing how an individual exercises First Amendment rights, unless such records are authorized by statute or are pertinent to and within the scope of authorized law enforcement activity. 5 U.S.C. § 552a(e)(7). Such records are subject to the Privacy Act even if not kept in “a system of records.” ''Clarkson v. IRS'', 678 F.2d 1368, 1373-77 (11th Cir. 1982), ''cert. denied'', 481 U.S. 1031. ''Cf. Pototsky v. U.S. Dep’t of Navy'', 717 F. Supp. 20 (D. Mass. 1989). Guidelines from the Office of Management and Budget (OMB) call for the broadest reasonable interpretation of the prohibition.<br />
<br />
===Exemptions from Access===<br />
The Privacy Act provides general (§ 552a(j)) and specific (§ 552a(k)) exemptions. These are exemptions allowing an agency to deny access to the record by the individual to whom the record pertains. The two types of exemptions are different in nature and consequences and are discretionary on the agency’s part. To be effective, the agency must first determine that a record or system of records meets the criteria for exemption under the Privacy Act and then publish the exemption as a rule under the [[Administrative Procedure Act]]’s (APA) notice-and-comment provisions. Failure to set out reasons demonstrating that the exemption meets the requirements of the Privacy Act may leave the records subject to the Privacy Act. ''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980). The exemptions do not authorize the agency to use the record in a manner other than the manner originally set out in the ''Federal Register'' establishing the system of records. ''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
A general exemption denies access by an affected individual under virtually all the Privacy Act’s provisions and is available for records maintained by the Central Intelligence Agency or by an agency whose principal functions are criminal law enforcement. The general exemption may not be used to exempt records compiled for a noncriminal or administrative purpose even if they are also a part of a system of records maintained by an agency qualified to assert the exemption. ''Vymetalik v. FBI'', 785 F.2d 1090, 1095 (D.C. Cir. 1986).<br />
<br />
The specific exemptions (§ 552a(k)(1)(7)) are available to any agency if the head of the agency promulgates rules pursuant to the notice-and-comment provisions of the [[Administrative Procedure Act|APA]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim 553]. The specific exemption is from a particular provision of the Privacy Act. The seven exemptions allowed are:<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim FOIA (b)(1) exemptions] (matters to be kept secret in the interest of national defense or foreign policy and properly classified by executive order);<br />
*Investigatory material compiled for law enforcement purposes that does not fall within the general exemption;<br />
*Material maintained to provide protective service to the President or pursuant to 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3056&num=0&edition=prelim § 3056];<br />
*Confidential investigatory records relating to employment or contracts;<br />
*Statistical records required by statute;<br />
*Testing and examination material related to federal employment; and<br />
*Evaluations related to military promotions obtained confidentially.<br />
<br />
An individual may sue to challenge a denial of access to records based on the general or specific exemptions, and the court will determine the substantive and procedural propriety of the agency’s assertion of the exemption. ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
<br />
===Restrictions on Disclosure===<br />
The Privacy Act prohibits disclosure of any record covered by the Privacy Act without the written request or prior written consent of the person whom the record concerns. 5 U.S.C. § 552a(b). The restriction on disclosure applies to any person or agency and includes any means of communication—written, oral, electronic, or mechanical [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Responsibilities for the Maintenance of Records About Individuals by Federal Agencies], 40 Fed. Reg. 28948, 28953 (July 9, 1975). Information obtained (or released) through sources independent of agency records is not “disclosure” under the Privacy Act.<br />
<br />
The general rule of nondisclosure is subject to 12 exceptions (§ 552a(b)(1)(12)). They are:<br />
<br />
*Internal agency use on a need to know basis;<br />
*Proper requests under FOIA;<br />
*Routine use;<br />
*Census Bureau activities;<br />
*Statistical research where the recipient has given written assurance that records are not individually identifiable;<br />
*National Archives preservation;<br />
*Information to Congress;<br />
*Information to the Comptroller General in performing Government Accountability Office (GAO) duties;<br />
*Showing of compelling circumstances affecting the health or safety of an individual;<br />
*Pursuant to court order (subpoenas issued by clerks of courts are not “orders” ''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798, 800 (N.D. Ga. 1978));<br />
*To a consumer reporting agency in accordance with 31 U.S.C. § 3711(f); and<br />
*Use by “any governmental jurisdiction . . . for a civil or criminal law enforcement activity” as long as a written request (1) is made by the head of the agency seeking the record, (2) specifies the portion of the record sought, and (3) describes the relevant enforcement activity. ''See Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
“Routine use,” considered generally the most important exception, is defined as “the use of such record for a purpose that is compatible with the purpose for which it was collected.” 5 U.S.C. § 552a(a)(7). Each routine use is identified in the ''Federal Register'' notice upon establishment or revision of each system of records. 5 U.S.C. (§ 552a(e)(4)(D). This exception permits nonconsensual intra- or interagency transfer of what is generally described as “house-keeping” information. Because the language is broad, the potential for abuse is considered great, and the courts have strictly required that the use be clearly and specifically identified in the rule adopted by the agency identifying the system of records. ''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989); ''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988); ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979). The Supreme Court has found that the Privacy Act’s provisions restricting disclosure, even while allowing disclosure for “routine uses,” are sufficient to protect persons’ constitutional right to informational privacy, if such a right exists. ''NASA v. Nelson'', 562 U.S. 134, 153-55 (2011).<br />
<br />
===Review, Relief, Remedies===<br />
The Privacy Act provides that each agency shall promulgate rules that establish, among other things, procedures of notice, disclosure, and review of requests. 5 U.S.C. § 552a(f). In the event that the rules are not followed or that a dispute persists, there are four civil actions: (1) a challenge for failure to provide access; (2) a challenge for refusal to amend; (3) a damages action for improper maintenance of the content of records; and (4) a damages action for other breaches of the Privacy Act or regulations issued thereunder that adversely affect the individual. 5 U.S.C. § 552a(g)(1). The latter two actions require proof of damages and are limited to actual damages. A cause of action for monetary damages requires a showing of an agency’s intentional or willful failure to maintain accurate records and that the violation of the Privacy Act caused the actual damages complained of. ''Molerio v. FBI'', 749 F.2d 815, 826 (D.C. Cir. 1984). Because waivers of sovereign immunity are to be strictly construed, the Supreme Court held that “actual damages” do not include nonpecuniary damages. https://tile.loc.gov/storage-services/service/ll/usrep/usrep566/usrep566284/usrep566284.pdf Fed. Aviation Admin. v. Cooper], 566 U.S. 284 (2012). Remedies for failure to grant access or refusal to amend are injunctive.<br />
<br />
An individual bringing a claim under § 552a(g)(1) must demonstrate a causal connection between the alleged violation and the harm suffered but may not use the Privacy Act claim as the forum in which to prove the entitlement the individual claims was improperly denied. ''Gizoni v. Sw. Marine, Inc.'', 909 F.2d 385 (9th Cir. 1990).<br />
<br />
Criminal penalties are established for willful disclosure of records by those who know such disclosure is prohibited, willful maintenance of a system of records without meeting the appropriate notice requirements, and knowing and willful requests for records under false pretenses. 5 U.S.C. § 552a(i). Each violation is classified as a misdemeanor, and the violator may be fined not more than $5,000. There have been at least two criminal prosecutions for unlawful disclosure of Privacy Act-protected records. ''See United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997) (finding the defendant not guilty; that the prosecution did not prove “beyond a reasonable doubt that defendant ‘willfully disclosed’ protected material”; and that the evidence presented constituted, “at best, gross negligence,” and thus was “insufficient for purposes of prosecution under § 552a(i)(1)”); ''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976) (guilty plea entered). ''See generally In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439, 1441 (D.C. Cir. 1996) (''per curiam'') (indicating the application for reimbursement of attorney fees where independent counsel found no prosecution was warranted under the Privacy Act because there was no conclusive evidence of improper disclosure of information). In a case involving the destruction of records, [https://www.cadc.uscourts.gov/internet/opinions.nsf/1E0F642CD84E034985257B3D004E4186/$file/09-5354-1427961.pdf Gerlich v. DOJ], 711 F.3d 161 (D.C. Cir. 2013), the D.C. Circuit allowed a Privacy Act claim to proceed against senior officials at the Department of Justice on the ground that they created records about appellants in the form of annotations to their applications and internet printouts concerning their political affiliations. The court relied in part on a permissive spoliation inference in light of the destruction of appellants’ records, because the senior department officials had a duty to preserve the annotated applications and internet printouts given that department investigation and future litigation were reasonably foreseeable.<br />
<br />
The Privacy Act provides a two-year statute of limitations. 5 U.S.C. § 552a(g)(5). The time begins to run when a reasonable person should have known of the alleged violation. ''Rose v. United States'', 905 F.2d 1257, 1259 (9th Cir. 1990); ''Diliberti v. United States'', 817 F.2d 1259, 1262 (7th Cir. 1987).<br />
<br />
===Computer Matching===<br />
The Privacy Act was amended in 1988 by the Computer Matching and Privacy Protection Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503]). OMB issued final guidance implementing the amendment’s provisions on June 19, 1989. [https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989)). The amendments added § 552a(o)-(q) to establish procedural safeguards affecting agencies’ use of Privacy Act records when performing computerized matching programs. The amendments require agencies to conclude written agreements specifying terms and safeguards under which matches are to be done. They provide procedures for individuals whose information is contained in the affected records to use to prevent agencies from taking adverse actions unless they have independently verified the results of matching and given the individual advance notice. Oversight is established by requiring ''Federal Register'' notice of matching agreements, reports to OMB and Congress, and the establishment of internal “data integrity boards” to oversee and coordinate the agency’s implementation of matching programs.<br />
<br />
===Relationship to the FOIA===<br />
Two provisions relate to FOIA. 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]. Section 552a(b)(2) exempts agencies from the requirement of obtaining an individual’s consent to release of information subject to disclosure under FOIA. In 1984, Congress added provisions delineating an individual’s access rights to records exempt from disclosure under FOIA or the Privacy Act. An agency must give an individual access to a record if it is accessible under either act irrespective of whether it might be withheld under the other. 5 U.S.C. § 552a(t). This gives maximum access to records by an individual whose personal information is contained therein. An accounting of the number of FOIA releases of Privacy Act information is not required. 5 U.S.C. § 552a(c)(1). If released under FOIA, the agency is relieved from ensuring the accuracy, completeness, timeliness, and relevance of the record. 5 U.S.C. § 552a(e)(6). If the system of records is made necessary by FOIA, the agency may exempt the system from the Privacy Act. 5 U.S.C. § 552a(k)(1).<br />
<br />
===Social Security Numbers===<br />
The Privacy Act restricts use of an individual’s Social Security account number. [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 7 (not codified as part of 5 U.S.C. § 552a). This provision applies to state and local governments, as well as to the federal government and makes it unlawful to deny any right, benefit, or privilege based on an individual’s failure to disclose the Social Security account number, unless the disclosure was required by any federal, state, or local system of records in operation before January 1, 1975, or the disclosure is required by federal law. Since enactment, Congress has required disclosure in the Tax Reform Act of 1976 ([http://uscode.house.gov/statutes/pl/94/455.pdf Pub. L. No. 94-455]), the Deficit Reduction Act of 1984 ([https://www.govinfo.gov/app/details/STATUTE-98/STATUTE-98-Pg494/summary Pub. L. No. 98-369]), and the Debt Collection Act of 1982 ([https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365]). In the Tax Reform Act of 1976, Congress declared it to be U.S. policy to use Social Security account numbers “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law.” Pub. L. No. 94-455, amending 42 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section405&num=0&edition=prelim 405(c)(2)].<br />
<br />
==Oversight==<br />
The Privacy Act requires OMB to develop guidelines and regulations for its implementation and to provide continuing assistance and oversight. The OMB guidelines are entitled to the usual deference accorded the interpretations of the agency charged with administration of a statute. ''Albright v. United States'', 631 F.2d 915, 919 n.5 (D.C. Cir. 1980); ''Quinn v. Stone'', 978 F.2d 126, 133 (3d Cir. 1992). However, a few courts have rejected particular aspects of the OMB guidelines as inconsistent with the statute. ''See, e.g.'', ''Kassel v. U.S. Dep’t of Veterans Affairs'', No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); [https://supreme.justia.com/cases/federal/us/540/614/ Doe v. Chao], 540 U.S. 614, 627 n.11 (2004) (disagreeing with dissent’s reliance on OMB interpretation of damages provision since the Court does “not find its unelaborated conclusion persuasive”).<br />
<br />
The vast majority of OMB’s Privacy Act guidelines are published in [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (1975). However, these original guidelines have been supplemented in particular subject areas over the years, including:<br />
<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/OMB/circulars/a130/a130revised.pdf Appendix I to OMB Circular No. A-130], most recently revised at [https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 81 Fed. Reg. 49689] (July 28, 2016)).<br />
*[https://archives.federalregister.gov/issue_slice/1975/12/4/56740-56743.pdf Implementation of the Privacy Act Supplemental Guidance], 40 Fed. Reg. 56741 (Dec. 4,1975) (system of records definition, routine use and intra-agency disclosures, consent and congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to FOIA).<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/guidance1983.pdf Guidelines on the Relationship of the Debt Collection of 1982 to the Privacy Act of 1974], 48 Fed. Reg. 15556 (Apr. 11, 1983) (relationship to Debt Collection Act).<br />
*[https://archives.federalregister.gov/issue_slice/1987/4/20/12988-12993.pdf Guidance on the Privacy Act Implications of “Call Detail” Programs to Manage Employees’ Use of the Government’s Telecommunications Systems], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf 52 Fed. Reg. 12,990-93] (Apr. 20, 1987) (“call detail” programs).<br />
*[https://archives.federalregister.gov/issue_slice/1989/6/19/25805-25829.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25,818] (June 19, 1989) (computer matching).<br />
*[https://archives.federalregister.gov/issue_slice/1991/4/23/18598-18601.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf 56 Fed. Reg. 18,599] (proposed Apr. 23, 1991) (computer matching);<br />
*[https://www.federalregister.gov/documents/1996/02/20/96-3645/management-of-federal-information-resources Management of Federal Information Resources], 61 Fed. Reg. 6428 (1996) (“Federal Agency Responsibilities for Maintaining Records About Individuals”).<br />
<br />
Thus, when researching in this area, it may be important to check subsequent supplements.<br />
<br />
In 1998, President Clinton called upon all federal agencies to take further privacy-protection steps within the next year. [https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998). Specifically, the President directed each agency to designate a senior official responsibile for the agency's privacy policy to apply the Principles for Providing and Using Personal Information, which was developed through the Information Infrastructure Task Force under the auspices of the Department of Commerce in 1995, and to review agency record systems to ensure compliance with the Privacy Act requirements. The agencies then reported the results of these reviews to OMB. The presidential memorandum also called for OMB to issue further guidance on the making of “routine use” disclosures under the Privacy Act.<br />
<br />
Section 208 of the [[E-Government Act of 2002]] (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=(title:44%20section:3501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title44-section3501)&f=treesort&edition=prelim&num=0&jumpTo=true § 3501 note]) requires that OMB issue guidance to agencies on implementing the privacy provisions of the E-Government Act. Under this guidance, agencies are required to conduct privacy impact assessments for electronic information systems and collections, make those assessments publicly available, post privacy policies on agency websites used by the public, translate privacy policies into a standardized machine-readable format, and report annually to OMB on the agency's compliance with the E-Government Act.<br />
<br />
In 2002, the Government Accountability Office (GAO) conducted an extensive review of agency Privacy Act practices and reported on its findings in June 2003. GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003). <br />
<br />
While most questions concerning the Privacy Act should first be directed to agency Privacy Act officers, important policy or litigation questions, or questions concerning the OMB guidelines, may be directed to the [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs].<br />
<br />
==Legislative History==<br />
The Privacy Act reflects the merger of seemingly disparate bills from the Senate and the House: S. 3418, introduced by Senator Sam Ervin (D-NC), and H.R. 16373, supported by the Administration. The Senate bill would have granted sweeping powers to a Federal Privacy Board for the oversight of collection, maintenance, and dissemination of individually identifiable information by both the public and private sectors, while the House bill focused on access to and correction of records, data collection, and maintenance standards. The Senate approved its bill on November 21, 1974, after consideration and, on the same day, the House bill was passed by a 353 to 1 vote, after two days of floor debate.<br />
<br />
The bills were not reconciled by the usual conference committee because of the limited time available between the end of Thanksgiving recess and the end of the session. Instead, the respective staffs of the committees studied the differing bills, reported to the committees and, after informal meetings, reached an agreement. The description of the amendments that made the two bills identical (thus avoiding a conference committee) was inserted into the record of both sides, and both houses passed identical bills. Thus, many of the most important provisions of the bill are not explained by committee reports. The only record of the final negotiations leading to the bill actually adopted is a staff memorandum entitled ''Analysis of House and Senate Compromise Amendments to the Federal Privacy Act''; ''see also'' [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S.3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976)).<br />
<br />
The final product included most of the fair information practices defined in the Senate version and the access and correction provisions of the House bill. None of the Senate provisions relating to a Federal Privacy Board was included. However, the Privacy Act provided for two important means of further development and oversight:<br />
<br />
*it instructed OMB to develop guidelines for the implementation of the Privacy Act throughout the executive branch; and<br />
*the Privacy Protection Study Commission was created by the Privacy Act to study the issues raised by the Privacy Act and to recommend further legislation, and it subsequently completed its thorough and informative report, [https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society].<br />
<br />
The bill was signed by President Ford on December 31, 1974 and became effective September 1975.<br />
<br />
===Source Note===<br />
The legislative history of the original Act is exhaustively collected in [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976). <br />
<br />
The Department of Justice’s [https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition Overview of the Privacy Act of 1974] is updated periodically and discusses the extensive case law under the Privacy Act.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*Joint Comm. on Government Operations, [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy], 94th Cong. (1976).<br />
*H.R. Rep. No. 100-802 (1988).<br />
*S. Rep. No. 100-516 (1988).<br />
*''Who Cares About Privacy? Oversight of the Privacy Act of 1974 by the Office of Management and Budget and by the Congress,'' ''H.R. Rep. No. 98-455'', Hearings Before Subcomm. of the H. Comm. on Gov’t Operations, 98th Cong. (1983).<br />
*America’s Healthy Future Act of 2009, [https://www.congress.gov/111/crpt/srpt89/CRPT-111srpt89.pdf S. Rep. No. 111-89] (2009).<br />
*The Restoring American Financial Stability Act of 2010, [https://www.congress.gov/111/crpt/srpt176/CRPT-111srpt176.pdf S. Rep. No. 111-176] (2010).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. 112-689] (2012).<br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998).<br />
*Executive Order 13478, [https://www.govinfo.gov/content/pkg/FR-2008-11-20/pdf/E8-27771.pdf Amendments to Executive Order 9397 Relating to Federal Agency Use of Social Security Numbers], 73 Fed. Reg. 70239 (Nov. 20, 2008).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2020-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-2%2C%20Protected%20Materials%20CLEAN%2012%2028%202020.pdf Protected Materials in Public Rulemaking Dockets]<br />
*2021-6 [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Circular A-108] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act of 1974, Supplementary Guidance], 40 Fed. Reg. 56741 (Dec. 4, 1975).<br />
*''Revised Supplemental Guidance for Conducting Matching Programs'', 47 Fed. Reg. 21656 (May 19, 1982).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Debt Collection Act Guidelines], 48 Fed. Reg. 15556 (Apr. 11, 1983).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (July 9, 1975); supplemented at:<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf 40 Fed. Reg. 56741] (1975).<br />
**49 Fed. Reg. 12338 (1984).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (1989).<br />
*''Management of Federal Information Resources'', Circular A130, 50 Fed. Reg. 52730 (Dec. 24, 1985).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Final Guidance on Privacy Act Implications of “Call Detail” Programs], 52 Fed. Reg. 12290 (Apr. 20, 1987).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Pub. L. No. 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], 56 Fed. Reg. 18599 (Apr. 23, 1991).<br />
*''Proposed Revision of OMB Circular A130'', 57 Fed. Reg. 18296 (Apr. 29, 1992).<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (Feb. 20, 1996).<br />
*M-0105, [https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-05-Guidance-on-Inter-Agency-Sharing-of-Personal-Data-Protecting-Personal-Privacy.pdf Guidance on Inter-Agency Sharing of Personal Data—Protecting Personal Privacy] (2000).<br />
*M-0322, [https://www.whitehouse.gov/wp-content/uploads/2017/11/203-M-03-22-OMB-Guidance-for-Implementing-the-Privacy-Provisions-of-the-E-Government-Act-of-2002-1.pdf Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002] (2003).<br />
*[https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 Revision of OMB Circular No. A-130 “Managing Information as a Strategic Resource”], 81 Fed. Reg. 49689 (July 28, 2016).<br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports on E-Government Act Implementation from 2003-2015]<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/egov_docs/egov_implementation_report_6_17_16.pdf 2015 Annual Report to Congress: E-Government Act Implementation]<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/egov/documents/omb-fy-2016-egov-act-report.pdf 2016 Annual Report to Congress: E-Government Act Implementation]<br />
*M-21-04, [https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act] (2020).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission] (1977).<br />
*Gen. Accounting Office, GAO/PEMD-87-2, [https://www.gao.gov/assets/150/144893.pdf Computer Matching: Assessing its Costs and Benefits] (1986).<br />
*Gen. Accounting Office, GAO/GGD-91-48, [https://www.gao.gov/assets/220/213974.pdf Peer Review: Compliance with the Privacy Act and the Federal Advisory Committee Act] (1991).<br />
*Gen. Accounting Office, GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003).<br />
*[https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf A Citizen’s Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records], Report by the Comm. on Oversight and Gov’t Reform, 112th Cong. (2012).<br />
*Dep’t of Justice, [https://www.justice.gov/opcl/file/793026/download Overview of the Privacy Act of 1974] (2015).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Lillian R. Bevier, [https://core.ac.uk/download/pdf/73966670.pdf Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection], 4 Wm. & Mary Bill Rights J. 455 (1991).<br />
*Babette Boliek, ''Prioritizing Privacy in the Courts and Beyond'', 103 Cornell L. Rev. 1101 (2018).<br />
*Jonathan C. Bond, Note, [http://www.gwlr.org/wp-content/uploads/2012/08/76-5-Bond.pdf Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century], 76 Geo. Wash. L. Rev. 1232 (2008).<br />
*William S. Challis & Ann Cavoukian, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1148&context=jitpl The Case for a U.S. Privacy Commissioner: A Canadian Commissioner’s Perspective], 19 J. Marshall J. Computer & Info. L. 1 (2000).<br />
*Todd Robert Coles, Comment, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1848&context=aulr Does the Privacy Act of 1974 Protect Your Right to Privacy?: An Examination of the Routine Use Exemption], 40 Am. U. L. Rev. 957 (1991).<br />
*John M. Eden, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1140&context=dltr When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID], 2005 Duke L. & Tech. Rev. 20 (2005).<br />
*Haeji Hong, [https://www.uakron.edu/dotAsset/727663.pdf Dismantling the Private Enforcement of the Privacy Act of 1974: Doe v. Chao], 38 Akron L. Rev. 71 (2005).<br />
*Margaret Hu, ''The Ironic Privacy Act'', 96 Wash. U.L. Rev. 1267 (2019).<br />
*Joseph V. Kaplan & John Mahoney, ''Reckless Disregard: Intentional and Willful Violations of the Privacy Act’s Investigatory Requirements'', 44 Fed. Law. No. 4, at 38 (1997).<br />
*Alex Kardon, [http://www.harvard-jlpp.com/wp-content/uploads/2013/10/KardonFinal.pdf Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform], 34 Harv. J. L. & Pub. Pol’y 705 (2011).<br />
*Flavio Komuves, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1243&context=jitpl We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers], 16 J. Marshall J. Computer & Info. L. 529 (1998).<br />
*Frederick Z. Lodge, Note, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2579&context=flr Damages Under the Privacy Act of 1974: Compensation and Deterrence], 52 Fordham L. Rev. 611 (1984).<br />
*Caleb A. Seeley, Note, [https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-91-5-Seeley.pdf Once More unto the Breach: The Constitutional Right to Informational Privacy and the Privacy Act], 91 N.Y.U. L. Rev. 1355 (2016).<br />
*Lisa A. Reilly, ''The Government in the Sunshine Act and the Privacy Act'', 55 Geo. Wash. L. Rev. 955 (1987).<br />
*Nicole M. Quallen, [https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4408&context=nclr Damages under the Privacy Act: Is Emotional Harm Actual], 88 N.C. L. Rev. 334 (2009).<br />
*Paul M. Schwartz, [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2572&context=facpubs Privacy and Participation: Personal Information and Public Sector Regulation in the United States], 80 Iowa L. Rev. 553 (1995).<br />
*Daniel Solove, [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2085&context=faculty_publications Identity Theft, Privacy, and the Architecture of Vulnerability], 54 Hastings L.J. 1227 (2003).<br />
*Julianne M. Sullivan, Comment, [https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=cwlr Will the Privacy Act of 1974 Still Hold Up in 2004? How Advancing Technology Has Created a Need for a Change in the “System of Records” Analysis], 39 Cal. W. L. Rev. 395 (2003).<br />
*Thomas M. Susman, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=2035&context=lawreview Privacy Act and the Freedom of Information Act: Conflict and Resolution], 21 J. Marshall L. Rev. 703 (1988).<br />
*Ari Ezra Waldman, ''Privacy Law's False Promise'', 97 Wash. U.L. Rev. 773 (2020).<br />
</div><br />
<br />
===Selected Cases Not Included in the Text===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798 (N.D. Ga. 1978).<br />
*''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
*''Albright v. United States'', 631 F.2d 915 (D.C. Cir. 1980).<br />
*''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980).<br />
*''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980).<br />
*''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981).<br />
*''Fitzpatrick v. United States'', 665 F.2d 327 (11th Cir. 1982).<br />
*''Clarkson v. IRS'', 678 F.2d 1368 (11th Cir. 1982).<br />
*''Johnson v. U.S. Dep’t of the Treasury'', 700 F.2d 971 (5th Cir. 1983).<br />
*''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
*''Molerio v. FBI'', 749 F.2d 815 (D.C. Cir. 1984).<br />
*''Elm v. Nat’l R.R. Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984).<br />
*''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
*''Vymetalik v. FBI'', 785 F.2d 1090 (D.C. Cir. 1986).<br />
*''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987).<br />
*''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988).<br />
*''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989).<br />
*''Pototsky v. U.S. Dep’t of the Navy'', 717 F. Supp. 20 (D. Mass. 1989).<br />
*''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989).<br />
*''Quinn v. Stone'', 978 F.2d 126, 133 (3rd Cir. 1992).<br />
*''Kassel v.'' U.S. ''Dep’t of Veterans Affairs'', No. 87-217-S (D.N.H. Mar. 30, 1992).<br />
*''United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997).<br />
*''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976).<br />
*''In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439 (D.C. Cir. 1996).<br />
*''Alexander v. FBI'', 971 F. Supp. 603 (D.D.C. 1997).<br />
*''Shannon v. General Elec. Co.'', 812 F. Supp. 308 (N.D.N.Y. 1993).<br />
*''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996).<br />
*[http://www.vawd.uscourts.gov/OPINIONS/WILSON/600CV0005(3).PDF Falwell v. Exec. Office of the President], 113 F. Supp. 2d 967 (W.D. Va. 2000).<br />
*''Dale v. Exec. Office of the President'', 164 F. Supp. 2d 22 (D.D.C. 2001).<br />
*''Trulock v. DOJ'', No. 00-2234, slip op. (D.D.C. Sept. 18, 2001).<br />
*''Tripp v. Exec. Office of the President'', 200 F.R.D. 140 (D.D.C. 2001).<br />
*''Broaddrick v. Exec. Office of the President'', 139 F. Supp. 2d 55 (D.D.C. 2001).<br />
*''Flowers v. Exec. Office of the President'', 142 F. Supp. 2d 38 (D.D.C. 2001).<br />
*''Jones v. Exec. Office of the President'', 167 F. Supp. 2d 10 (D.D.C. 2001).<br />
*''Sculimbrene v. Reno'', 158 F. Supp. 2d 26 (D.D.C. 2001).<br />
*''Schwarz v. U.S. Dep’t of the Treasury'', 131 F. Supp. 2d 142 (D.D.C. 2000).<br />
*''Cobell v. Norton'', 157 F. Supp. 2d 82 (D.D.C. 2001).<br />
*''Cummings v. U.S. Dep’t of the Navy'', 279 F.3d 1051 (D.C. Cir. 2002).<br />
*''McCready v. Principi'', 297 F. Supp. 2d 178 (D.D.C. 2003).<br />
*''Chang v. U.S. Dep’t of the Navy'', 314 F. Supp.2d 35 (D.D.C. 2004).<br />
*''Maydak v. United States'', 363 F.3d 512 (D.C. Cir. 2004).<br />
*[https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614 (2004).<br />
*''NASA v. Nelson'', 562 U.S. 134 (2011).<br />
*[https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 132 S. Ct. 1441 (2012).<br />
*''Logan v. U.S. Dep’t of Veterans Affairs'', 357 F. Supp. 2d 149 (D.D.C. 2004).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2006/03/13/0335877.pdf Oja v. U.S. Army Corps of Engineers], 440 F.3d 1122 (9th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/013337AFDE8A8304852574400044F8CC/$file/04-5425a.pdf McCready v. Nicholson], 465 F.3d 1 (D.C. Cir. 2006).<br />
*[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2006/D01-30/C:04-3888:J:_:aut:T:op:N:0:S:0 Bassiouni v. FBI], 436 F.3d 712 (7th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/E94B1B7BAE4935098525744000455619/$file/06-5085b.pdf Sussman v. U.S. Marshals Serv.], 494 F.3d 1106 (D.C. Cir 2007).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/9F94563D7D135A85852578000052F342/$file/07-5257-1132633.pdf Wilson v. Libby], 535 F.3d 697 (D.C. Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2008/05/02/0615191.pdf Lane v. U.S. Dep’t of the Interior], 523 F.3d 1128 (9th Cir. 2008).<br />
*[http://media.ca8.uscourts.gov/opndir/08/03/071576P.pdf Doe v. U.S. Dep’t of Veterans Affairs], 519 F.3d 456 (8th Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2009/05/21/06-15967.pdf Rouse v. U.S. Dep’t of State], 567 F.3d 408 (9th Cir. 2009).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/EAC6966EA3FE7C2885257807005C6E66/$file/07-5352-1285040.pdf Maydak v United States], 630 F.3d 166 (D.C. Cir. 2010).<br />
*[http://media.ca11.uscourts.gov/opinions/pub/files/200916154.pdf Speaker v. U.S. Dep’t of Health and Human Serv. Ctr. for Disease Control and Prevention], F.3d 1371 (11th Cir. 2010).<br />
*[https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58 Sieverding v. DOJ], 693 F. Supp. 2d 93 (D.D.C. 2010).<br />
*[http://www.opn.ca6.uscourts.gov/opinions.pdf/11a0098p-06.pdf Shearson v. DHS], 638 F.3d 498 (6th Cir. 2011).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir. 2015).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/57E67EBF550EDDAB8525822C005378F2/$file/16-5045-1716627.pdf Liff v. Office of Inspector Gen. for the U.S. Dep’t of Labor], 881 F.3d 912 (D.C. Cir. 2018).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Fazaga v. FBI], 916 F.3d 1201 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/22/17-17349.pdf Rojas v. FAA], 941 F.3d 392 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/18-15416.pdf Garris v. FBI], 937 F.3d 1284 (9th Cir. 2019).<br />
*[https://law.justia.com/cases/federal/appellate-courts/cadc/17-5117/17-5117-2019-06-21.html In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.], 928 F.3d 42 (D.C. Cir. 2019).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Privacy Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a. Records maintained on individuals]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Privacy_Act&diff=1678Privacy Act2023-08-15T20:57:05Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] (2012), enacted by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 3, 88 Stat. 1897, Dec. 31, 1974; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-89/pdf/STATUTE-89-Pg1057.pdf Pub. L. No. 94-183], § 2(2), 89 Stat. 1057, Dec. 31, 1975; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365], § 2, 96 Stat. 1749, Oct. 25, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1819.pdf Pub. L. No. 97-375], title II, § 201(a), (b), 96 Stat. 1821, Dec. 21, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2467.pdf Pub. L. No. 97-452], §2(a)(1), 96 Stat. 2478, Jan. 12, 1983; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c), 98 Stat. 2211, Oct. 15, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], title I, §107(g), 98 Stat. 2292, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503], §§ 28, 102 Stat. 2507-2514, Oct. 18, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1388.pdf Pub. L. No. 101-508], title VII, §7201(b)(1), 104 Stat. 1388-(3), Nov. 5, 1990; by [https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1466.pdf Pub. L. No. 103-66], title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107 Stat. 611, Aug. 10, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ193/pdf/PLAW-104publ193.pdf Pub. L. No. 104-193], title I, § 110(w), 110 Stat. 2175, Aug. 22, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ226/pdf/PLAW-104publ226.pdf Pub. L. No. 104-226], § 1(b)(3), 110 Stat. 3033, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ316/pdf/PLAW-104publ316.pdf Pub. L. No. 104-316], title I, § 115(g)(2)(b), 110 Stat. 3835, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ34/PLAW-105publ34.pdf Pub. L. No. 105-34], title IX, subtitle C, § 1026(b)(2), 111 Stat. 925, Aug. 5, 1997; by [https://www.govinfo.gov/content/pkg/PLAW-105publ362/pdf/PLAW-105publ362.pdf Pub. L. No. 105-362], title XIII, § 1301(d), 112 Stat.3292, Nov. 10, 1998; by [https://www.govinfo.gov/content/pkg/PLAW-108publ271/pdf/PLAW-108publ271.pdf Pub. L. No. 108-271], 118 Stat. 814, July 7, 2004; by [https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf Pub. L. No. 111-148], Title VI, § 6402(b)(2), 124 Stat. 756, Mar. 23, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203], Title X, § 1082, 124 Stat. 2080, July 21, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-113publ295/pdf/PLAW-113publ295.pdf Pub. L. No. 113-295], Div. B, Title I, § 102(c), 128 Stat. 4062, Dec. 19, 2014.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
==Overview==<br />
The Privacy Act of 1974 represents the Congressional response to concerns about government uses of information collected about private individuals. The Privacy Act gives individuals greater control over the gathering, dissemination, and accuracy of information collected about themselves by agencies. ''Miller v. United States'', 630 F. Supp. 347 (E.D.N.Y. 1986). The main purpose of the Privacy Act is to forbid disclosure unless it is required by the [[Freedom of Information Act]] (FOIA). ''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980). To protect individual privacy, the Privacy Act constrains executive branch recordkeeping, defines the individual’s right to access certain records, limits agency disclosure of records containing an individual’s private information, establishes safeguards to protect records concerning individuals, and provides remedies for agency violation of the Privacy Act’s provisions.<br />
<br />
===Scope===<br />
<br />
The Privacy Act covers records maintained by agencies as defined in FOIA. It applies to Cabinet-level departments, independent regulatory agencies, military departments, and government corporations. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(a)(1)]. It does not apply to the legislative branch, national banks (''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981)), or Amtrak (''Ehm v. National R.R.'' ''Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984), ''cert. denied'', 469 U.S. 982 (1984)). ''See Alexander v. FBI'', 971 F. Supp. 603, 606-07 (D.D.C. 1997) (recognizing that the definition of “agency” under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President’s immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, but, nevertheless rejecting such limitation with regard to “agency” as used in the Privacy Act due to the different purposes that the two statutes serve); ''Shannon v. Gen. Elec. Co.'', 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) (stating there is “no dispute” that General Electric (GE) falls within the definition of “agency” subject to requirements of the Privacy Act where, pursuant to a contract, it operated a Department of Energy-owned lab under the supervision, control, and oversight of the Department and where, by terms of the contract, GE agreed to comply with the Privacy Act).<br />
<br />
A record is a collection or grouping of information about an individual that, for example, may include educational, financial, or biographical information, together with personal identifiers such as names, photos, numbers, or fingerprints. 5 U.S.C. § 552a(a)(4). The Privacy Act does not apply to all government records and documents that may contain an individual’s name or other private information. For example, it does not include the private notes of a supervisor if such notes are not used by the agency to make decisions. ''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989). But such notes may become subject to the Privacy Act if they become part of an agency’s decision. ''Chapman v. NASA'', 682 F.2d 526 (5th Cir. 1982), ''cert. denied'', 469 U.S. 1038 (1984). The Act also does not apply to information in documents obtained from independent sources of information, even though identical information may be in an agency’s system of records. ''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
<br />
The Privacy Act focuses on “systems of records” established, maintained, or controlled by an agency. A “system of records” is a group of any records where individual names or other individual identifiers can be used to retrieve the information. 5 U.S.C. § 552a(a)(5). Agencies may maintain records covered by the Privacy Act only when they are relevant and necessary to accomplish the agency’s purpose. 5 U.S.C. § 552a(e)(1). The Court of Appeals for the District of Columbia Circuit addressed the “system of records” definition in the context of computerized information in ''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996), and noted that “the [Office of Management and Budget] guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person’s name, but the agency must in fact retrieve records in this way in order for a system of records to exist.” ''Id.'' at 1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is retrieved” in the statute’s definition of a system of records and focused on whether the agency “in practice” retrieved information. ''Id.'' at 1459-61.<br />
<br />
===Access to Records===<br />
Where the agency is authorized to keep records covered by the Privacy Act, an individual has a right of access to records concerning him or her. This is a central protection of the Privacy Act for individuals. The individual has a right to:<br />
<br />
*Copy any or all of the record (§ 552a(d)(1));<br />
*Request amendment of the record (§ 552a(d)(2)) and file a concise statement of disagreement if the agency refuses to amend the record that will be provided to all persons to whom the record is disclosed (§ 552a(d)(4)); and<br />
*Request an accounting from the agency on the date, nature, and purpose of each disclosure of the record (§ 552a(c)).<br />
<br />
The individual has an absolute right to access and need not provide any reason for seeking access. ''FTC v. Shaffner'', 626 F.2d 32 (7th Cir. 1980).<br />
<br />
===Agency Requirements=== <br />
For each system of records an agency maintains, it must:<br />
<br />
*Publish in the ''Federal Register'' the name and location of the system; the categories of individuals contained in the system; the routine use of the records; agency policies concerning the records including storage, retrieval, access, retention, and disposal; the person, including title and address, responsible for the system; the method used to notify individuals how to gain access to records about themselves; and the sources or records in the system. Any new use of the system must be noticed for comment 30 days prior to implementing the new use. Exempt systems must also be noticed. ''See, e.g.,'' 5 U.S.C.§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a(b)(3)], (e)(4), and (e)(11);<br />
*Maintain records in the system accurately, completely, and timely to ensure fairness to the individuals (§ 552a(e)(5));<br />
*Establish rules and training for persons designing, developing, operating, or maintaining the system to ensure compliance with the Privacy Act and the agency’s implementing policies (§ 552a(e)(9));<br />
*Establish safeguards for the protection of records (§ 552a(e)(10)); and<br />
*Inform government contractors of their duties under the Privacy Act (§ 552a(m)).<br />
<br />
When the agency collects information that “may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs,” the Privacy Act requires the information to be collected, to the “greatest extent practicable,” directly from the affected individual. 5 U.S.C. § 552a(e)(2). When requesting such information from individuals, the agency must disclose: (1) the authority under which collection is authorized; (2) the principal purposes for which the information is needed; (3) the routine use of the information; and (4) consequences, if any, of not providing the information. 5 U.S.C. § 552a(e)(3).<br />
<br />
The Privacy Act mandates that information maintained in agency records be as relevant and as necessary as possible to accomplish the agency’s purpose. It must also undertake to maintain the information with such accuracy and completeness as is reasonably necessary to assure fairness to the individual. In ''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987), the court sitting en banc held that an agency may satisfy this requirement by supplementing the information an individual considers damaging with the individual’s explanation or disagreement with the accuracy of the information. The court found that the agency made a reasonable effort to determine the accuracy of the information and that an adjudication of the disputed facts was not necessary for the agency’s purposes. The court said that in some cases, fairness may require a record to contain both versions of a disputed fact.<br />
<br />
Agencies are prohibited from maintaining records describing how an individual exercises First Amendment rights, unless such records are authorized by statute or are pertinent to and within the scope of authorized law enforcement activity. 5 U.S.C. § 552a(e)(7). Such records are subject to the Privacy Act even if not kept in “a system of records.” ''Clarkson v. IRS'', 678 F.2d 1368, 1373-77 (11th Cir. 1982), ''cert. denied'', 481 U.S. 1031. ''Cf. Pototsky v. U.S. Dep’t of Navy'', 717 F. Supp. 20 (D. Mass. 1989). Guidelines from the Office of Management and Budget (OMB) call for the broadest reasonable interpretation of the prohibition.<br />
<br />
===Exemptions from Access===<br />
The Privacy Act provides general (§ 552a(j)) and specific (§ 552a(k)) exemptions. These are exemptions allowing an agency to deny access to the record by the individual to whom the record pertains. The two types of exemptions are different in nature and consequences and are discretionary on the agency’s part. To be effective, the agency must first determine that a record or system of records meets the criteria for exemption under the Privacy Act and then publish the exemption as a rule under the [[Administrative Procedure Act]]’s (APA) notice-and-comment provisions. Failure to set out reasons demonstrating that the exemption meets the requirements of the Privacy Act may leave the records subject to the Privacy Act. ''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980). The exemptions do not authorize the agency to use the record in a manner other than the manner originally set out in the ''Federal Register'' establishing the system of records. ''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
A general exemption denies access by an affected individual under virtually all the Privacy Act’s provisions and is available for records maintained by the Central Intelligence Agency or by an agency whose principal functions are criminal law enforcement. The general exemption may not be used to exempt records compiled for a noncriminal or administrative purpose even if they are also a part of a system of records maintained by an agency qualified to assert the exemption. ''Vymetalik v. FBI'', 785 F.2d 1090, 1095 (D.C. Cir. 1986).<br />
<br />
The specific exemptions (§ 552a(k)(1)(7)) are available to any agency if the head of the agency promulgates rules pursuant to the notice-and-comment provisions of the [[Administrative Procedure Act|APA]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim 553]. The specific exemption is from a particular provision of the Privacy Act. The seven exemptions allowed are:<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim FOIA (b)(1) exemptions] (matters to be kept secret in the interest of national defense or foreign policy and properly classified by executive order);<br />
*Investigatory material compiled for law enforcement purposes that does not fall within the general exemption;<br />
*Material maintained to provide protective service to the President or pursuant to 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3056&num=0&edition=prelim § 3056];<br />
*Confidential investigatory records relating to employment or contracts;<br />
*Statistical records required by statute;<br />
*Testing and examination material related to federal employment; and<br />
*Evaluations related to military promotions obtained confidentially.<br />
<br />
An individual may sue to challenge a denial of access to records based on the general or specific exemptions, and the court will determine the substantive and procedural propriety of the agency’s assertion of the exemption. ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
<br />
===Restrictions on Disclosure===<br />
The Privacy Act prohibits disclosure of any record covered by the Privacy Act without the written request or prior written consent of the person whom the record concerns. 5 U.S.C. § 552a(b). The restriction on disclosure applies to any person or agency and includes any means of communication—written, oral, electronic, or mechanical [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Responsibilities for the Maintenance of Records About Individuals by Federal Agencies], 40 Fed. Reg. 28948, 28953 (July 9, 1975). Information obtained (or released) through sources independent of agency records is not “disclosure” under the Privacy Act.<br />
<br />
The general rule of nondisclosure is subject to 12 exceptions (§ 552a(b)(1)(12)). They are:<br />
<br />
*Internal agency use on a need to know basis;<br />
*Proper requests under FOIA;<br />
*Routine use;<br />
*Census Bureau activities;<br />
*Statistical research where the recipient has given written assurance that records are not individually identifiable;<br />
*National Archives preservation;<br />
*Information to Congress;<br />
*Information to the Comptroller General in performing Government Accountability Office (GAO) duties;<br />
*Showing of compelling circumstances affecting the health or safety of an individual;<br />
*Pursuant to court order (subpoenas issued by clerks of courts are not “orders” ''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798, 800 (N.D. Ga. 1978));<br />
*To a consumer reporting agency in accordance with 31 U.S.C. § 3711(f); and<br />
*Use by “any governmental jurisdiction . . . for a civil or criminal law enforcement activity” as long as a written request (1) is made by the head of the agency seeking the record, (2) specifies the portion of the record sought, and (3) describes the relevant enforcement activity. ''See Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
“Routine use,” considered generally the most important exception, is defined as “the use of such record for a purpose that is compatible with the purpose for which it was collected.” 5 U.S.C. § 552a(a)(7). Each routine use is identified in the ''Federal Register'' notice upon establishment or revision of each system of records. 5 U.S.C. (§ 552a(e)(4)(D). This exception permits nonconsensual intra- or interagency transfer of what is generally described as “house-keeping” information. Because the language is broad, the potential for abuse is considered great, and the courts have strictly required that the use be clearly and specifically identified in the rule adopted by the agency identifying the system of records. ''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989); ''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988); ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979). The Supreme Court has found that the Privacy Act’s provisions restricting disclosure, even while allowing disclosure for “routine uses,” are sufficient to protect persons’ constitutional right to informational privacy, if such a right exists. ''NASA v. Nelson'', 562 U.S. 134, 153-55 (2011).<br />
<br />
===Review, Relief, Remedies===<br />
The Privacy Act provides that each agency shall promulgate rules that establish, among other things, procedures of notice, disclosure, and review of requests. 5 U.S.C. § 552a(f). In the event that the rules are not followed or that a dispute persists, there are four civil actions: (1) a challenge for failure to provide access; (2) a challenge for refusal to amend; (3) a damages action for improper maintenance of the content of records; and (4) a damages action for other breaches of the Privacy Act or regulations issued thereunder that adversely affect the individual. 5 U.S.C. § 552a(g)(1). The latter two actions require proof of damages and are limited to actual damages. A cause of action for monetary damages requires a showing of an agency’s intentional or willful failure to maintain accurate records and that the violation of the Privacy Act caused the actual damages complained of. ''Molerio v. FBI'', 749 F.2d 815, 826 (D.C. Cir. 1984). Because waivers of sovereign immunity are to be strictly construed, the Supreme Court held that “actual damages” do not include nonpecuniary damages. https://tile.loc.gov/storage-services/service/ll/usrep/usrep566/usrep566284/usrep566284.pdf Fed. Aviation Admin. v. Cooper], 566 U.S. 284 (2012). Remedies for failure to grant access or refusal to amend are injunctive.<br />
<br />
An individual bringing a claim under § 552a(g)(1) must demonstrate a causal connection between the alleged violation and the harm suffered but may not use the Privacy Act claim as the forum in which to prove the entitlement the individual claims was improperly denied. ''Gizoni v. Sw. Marine, Inc.'', 909 F.2d 385 (9th Cir. 1990).<br />
<br />
Criminal penalties are established for willful disclosure of records by those who know such disclosure is prohibited, willful maintenance of a system of records without meeting the appropriate notice requirements, and knowing and willful requests for records under false pretenses. 5 U.S.C. § 552a(i). Each violation is classified as a misdemeanor, and the violator may be fined not more than $5,000. There have been at least two criminal prosecutions for unlawful disclosure of Privacy Act-protected records. ''See United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997) (finding the defendant not guilty; that the prosecution did not prove “beyond a reasonable doubt that defendant ‘willfully disclosed’ protected material”; and that the evidence presented constituted, “at best, gross negligence,” and thus was “insufficient for purposes of prosecution under § 552a(i)(1)”); ''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976) (guilty plea entered). ''See generally In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439, 1441 (D.C. Cir. 1996) (''per curiam'') (indicating the application for reimbursement of attorney fees where independent counsel found no prosecution was warranted under the Privacy Act because there was no conclusive evidence of improper disclosure of information). In a case involving the destruction of records, [https://www.cadc.uscourts.gov/internet/opinions.nsf/1E0F642CD84E034985257B3D004E4186/$file/09-5354-1427961.pdf Gerlich v. DOJ], 711 F.3d 161 (D.C. Cir. 2013), the D.C. Circuit allowed a Privacy Act claim to proceed against senior officials at the Department of Justice on the ground that they created records about appellants in the form of annotations to their applications and internet printouts concerning their political affiliations. The court relied in part on a permissive spoliation inference in light of the destruction of appellants’ records, because the senior department officials had a duty to preserve the annotated applications and internet printouts given that department investigation and future litigation were reasonably foreseeable.<br />
<br />
The Privacy Act provides a two-year statute of limitations. 5 U.S.C. § 552a(g)(5). The time begins to run when a reasonable person should have known of the alleged violation. ''Rose v. United States'', 905 F.2d 1257, 1259 (9th Cir. 1990); ''Diliberti v. United States'', 817 F.2d 1259, 1262 (7th Cir. 1987).<br />
<br />
===Computer Matching===<br />
The Privacy Act was amended in 1988 by the Computer Matching and Privacy Protection Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503]). OMB issued final guidance implementing the amendment’s provisions on June 19, 1989. [https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989)). The amendments added § 552a(o)-(q) to establish procedural safeguards affecting agencies’ use of Privacy Act records when performing computerized matching programs. The amendments require agencies to conclude written agreements specifying terms and safeguards under which matches are to be done. They provide procedures for individuals whose information is contained in the affected records to use to prevent agencies from taking adverse actions unless they have independently verified the results of matching and given the individual advance notice. Oversight is established by requiring ''Federal Register'' notice of matching agreements, reports to OMB and Congress, and the establishment of internal “data integrity boards” to oversee and coordinate the agency’s implementation of matching programs.<br />
<br />
===Relationship to the FOIA===<br />
Two provisions relate to FOIA. 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]. Section 552a(b)(2) exempts agencies from the requirement of obtaining an individual’s consent to release of information subject to disclosure under FOIA. In 1984, Congress added provisions delineating an individual’s access rights to records exempt from disclosure under FOIA or the Privacy Act. An agency must give an individual access to a record if it is accessible under either act irrespective of whether it might be withheld under the other. 5 U.S.C. § 552a(t). This gives maximum access to records by an individual whose personal information is contained therein. An accounting of the number of FOIA releases of Privacy Act information is not required. 5 U.S.C. § 552a(c)(1). If released under FOIA, the agency is relieved from ensuring the accuracy, completeness, timeliness, and relevance of the record. 5 U.S.C. § 552a(e)(6). If the system of records is made necessary by FOIA, the agency may exempt the system from the Privacy Act. 5 U.S.C. § 552a(k)(1).<br />
<br />
===Social Security Numbers===<br />
The Privacy Act restricts use of an individual’s Social Security account number. [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 7 (not codified as part of 5 U.S.C. § 552a). This provision applies to state and local governments, as well as to the federal government and makes it unlawful to deny any right, benefit, or privilege based on an individual’s failure to disclose the Social Security account number, unless the disclosure was required by any federal, state, or local system of records in operation before January 1, 1975, or the disclosure is required by federal law. Since enactment, Congress has required disclosure in the Tax Reform Act of 1976 ([http://uscode.house.gov/statutes/pl/94/455.pdf Pub. L. No. 94-455]), the Deficit Reduction Act of 1984 ([http://uscode.house.gov/statutes/pl/109/171.pdf Pub. L. No. 98-369]), and the Debt Collection Act of 1982 ([https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365]). In the Tax Reform Act of 1976, Congress declared it to be U.S. policy to use Social Security account numbers “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law.” Pub. L. No. 94-455, amending 42 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section405&num=0&edition=prelim 405(c)(2)].<br />
<br />
==Oversight==<br />
The Privacy Act requires OMB to develop guidelines and regulations for its implementation and to provide continuing assistance and oversight. The OMB guidelines are entitled to the usual deference accorded the interpretations of the agency charged with administration of a statute. ''Albright v. United States'', 631 F.2d 915, 919 n.5 (D.C. Cir. 1980); ''Quinn v. Stone'', 978 F.2d 126, 133 (3d Cir. 1992). However, a few courts have rejected particular aspects of the OMB Guidelines as inconsistent with the statute. ''See, e.g.'', ''Kassel v. U.S. Dep’t of Veterans Affairs'', No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); [https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614, 627 n.11 (2004) (disagreeing with dissent’s reliance on OMB interpretation of damages provision since the Court does “not find its unelaborated conclusion persuasive”).<br />
<br />
The vast majority of OMB’s Privacy Act guidelines are published in [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (1975). However, these original guidelines have been supplemented in particular subject areas over the years, including:<br />
<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Appendix I to OMB Circular No. A-130], most recently revised at [https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 81 Fed. Reg. 49689] (July 28, 2016)).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act Supplemental Guidance], 40 Fed. Reg. 56741 (Dec. 4,1975) (system of records definition, routine use and intra-agency disclosures, consent and congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to FOIA).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Guidelines on the Relationship of the Debt Collection of 1982 to the Privacy Act of 1974], 48 Fed. Reg. 15556 (Apr. 11, 1983) (relationship to Debt Collection Act).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Guidance on the Privacy Act Implications of “Call Detail” Programs to Manage Employees’ Use of the Government’s Telecommunications Systems], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf 52 Fed. Reg. 12990-93] (Apr. 20, 1987) (“call detail” programs).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (June 19, 1989) (computer matching).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf 56 Fed. Reg. 18599] (proposed Apr. 23, 1991) (computer matching);<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (1996) (“Federal Agency Responsibilities for Maintaining Records About Individuals”).<br />
<br />
Thus, when researching in this area, it may be important to check subsequent supplements.<br />
<br />
In 1998, President Clinton called upon all federal agencies to take further privacy-protection steps within the next year. [https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998). Specifically, the President directed each agency to designate a senior official with responsibility for privacy policy to apply the Principles for Providing and Using Personal Information that were developed through the Information Infrastructure Task Force under the auspices of the Department of Commerce in 1995 and to conduct a series of reviews of agency record systems in order to ensure compliance with Privacy Act requirements. The Privacy Act related reviews, conducted in accordance with instructions issued by OMB, reported results to OMB. The memorandum also provided that OMB issue further guidance on the making of “routine use” disclosures under the Privacy Act.<br />
<br />
Section 208 (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=(title:44%20section:3501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title44-section3501)&f=treesort&edition=prelim&num=0&jumpTo=true § 3501 note]) of the [[E-Government Act of 2002]] requires that OMB issue guidance to agencies on implementing the privacy provisions of the E-Government Act. Under this guidance, agencies are required to conduct privacy impact assessments for electronic information systems and collections, make them publicly available, post privacy policies on agency websites used by the public, translate privacy policies into a standardized machine-readable format, and report annually to OMB on compliance with the E-Government Act.<br />
<br />
In 2002, GAO conducted an extensive review of agency Privacy Act practices, and reported on its findings in June 2003. GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003). <br />
<br />
While most questions concerning the Privacy Act should first be directed to agency Privacy Act officers, important policy or litigation questions, or questions concerning the OMB Guidelines, may be directed to the [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs].<br />
<br />
==Legislative History==<br />
The Privacy Act reflects the merger of seemingly disparate bills from the Senate and the House: S. 3418, introduced by Senator Sam Ervin (D-NC), and H.R. 16373, supported by the Administration. The Senate bill would have granted sweeping powers to a Federal Privacy Board for the oversight of collection, maintenance, and dissemination of individually identifiable information by both the public and private sectors, while the House bill focused on access to and correction of records, data collection, and maintenance standards. The Senate approved its bill on November 21, 1974, after consideration and, on the same day, the House bill was passed by a 353 to 1 vote, after two days of floor debate.<br />
<br />
The bills were not reconciled by the usual conference committee because of the limited time available between the end of Thanksgiving recess and the end of the session. Instead, the respective staffs of the committees studied the differing bills, reported to the committees and, after informal meetings, reached an agreement. The description of the amendments that made the two bills identical (thus avoiding a conference committee) was inserted into the record of both sides, and both houses passed identical bills. Thus, many of the most important provisions of the bill are not explained by committee reports. The only record of the final negotiations leading to the bill actually adopted is a staff memorandum entitled ''Analysis of House and Senate Compromise Amendments to the Federal Privacy Act''; ''see also'' [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S.3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976)).<br />
<br />
The final product included most of the fair information practices defined in the Senate version and the access and correction provisions of the House bill. None of the Senate provisions relating to a Federal Privacy Board was included. However, the Privacy Act provided for two important means of further development and oversight:<br />
<br />
*it instructed OMB to develop guidelines for the implementation of the Privacy Act throughout the executive branch; and<br />
*the Privacy Protection Study Commission was created by the Privacy Act to study the issues raised by the Privacy Act and to recommend further legislation, and it subsequently completed its thorough and informative report, [https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society].<br />
<br />
The bill was signed by President Ford on December 31, 1974 and became effective September 1975.<br />
<br />
===Source Note===<br />
The legislative history of the original Act is exhaustively collected in [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976). <br />
<br />
The Department of Justice’s [https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition Overview of the Privacy Act of 1974] is updated periodically and discusses the extensive case law under the Privacy Act.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*Joint Comm. on Government Operations, [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy], 94th Cong. (1976).<br />
*H.R. Rep. No. 100-802 (1988).<br />
*S. Rep. No. 100-516 (1988).<br />
*''Who Cares About Privacy? Oversight of the Privacy Act of 1974 by the Office of Management and Budget and by the Congress,'' ''H.R. Rep. No. 98-455'', Hearings Before Subcomm. of the H. Comm. on Gov’t Operations, 98th Cong. (1983).<br />
*America’s Healthy Future Act of 2009, [https://www.congress.gov/111/crpt/srpt89/CRPT-111srpt89.pdf S. Rep. No. 111-89] (2009).<br />
*The Restoring American Financial Stability Act of 2010, [https://www.congress.gov/111/crpt/srpt176/CRPT-111srpt176.pdf S. Rep. No. 111-176] (2010).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. 112-689] (2012).<br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998).<br />
*Executive Order 13478, [https://www.govinfo.gov/content/pkg/FR-2008-11-20/pdf/E8-27771.pdf Amendments to Executive Order 9397 Relating to Federal Agency Use of Social Security Numbers], 73 Fed. Reg. 70239 (Nov. 20, 2008).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2020-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-2%2C%20Protected%20Materials%20CLEAN%2012%2028%202020.pdf Protected Materials in Public Rulemaking Dockets]<br />
*2021-6 [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Circular A-108] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act of 1974, Supplementary Guidance], 40 Fed. Reg. 56741 (Dec. 4, 1975).<br />
*''Revised Supplemental Guidance for Conducting Matching Programs'', 47 Fed. Reg. 21656 (May 19, 1982).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Debt Collection Act Guidelines], 48 Fed. Reg. 15556 (Apr. 11, 1983).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (July 9, 1975); supplemented at:<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf 40 Fed. Reg. 56741] (1975).<br />
**49 Fed. Reg. 12338 (1984).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (1989).<br />
*''Management of Federal Information Resources'', Circular A130, 50 Fed. Reg. 52730 (Dec. 24, 1985).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Final Guidance on Privacy Act Implications of “Call Detail” Programs], 52 Fed. Reg. 12290 (Apr. 20, 1987).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Pub. L. No. 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], 56 Fed. Reg. 18599 (Apr. 23, 1991).<br />
*''Proposed Revision of OMB Circular A130'', 57 Fed. Reg. 18296 (Apr. 29, 1992).<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (Feb. 20, 1996).<br />
*M-0105, [https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-05-Guidance-on-Inter-Agency-Sharing-of-Personal-Data-Protecting-Personal-Privacy.pdf Guidance on Inter-Agency Sharing of Personal Data—Protecting Personal Privacy] (2000).<br />
*M-0322, [https://www.whitehouse.gov/wp-content/uploads/2017/11/203-M-03-22-OMB-Guidance-for-Implementing-the-Privacy-Provisions-of-the-E-Government-Act-of-2002-1.pdf Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002] (2003).<br />
*[https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 Revision of OMB Circular No. A-130 “Managing Information as a Strategic Resource”], 81 Fed. Reg. 49689 (July 28, 2016).<br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports on E-Government Act Implementation from 2003-2015]<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/egov_docs/egov_implementation_report_6_17_16.pdf 2015 Annual Report to Congress: E-Government Act Implementation]<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/egov/documents/omb-fy-2016-egov-act-report.pdf 2016 Annual Report to Congress: E-Government Act Implementation]<br />
*M-21-04, [https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act] (2020).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission] (1977).<br />
*Gen. Accounting Office, GAO/PEMD-87-2, [https://www.gao.gov/assets/150/144893.pdf Computer Matching: Assessing its Costs and Benefits] (1986).<br />
*Gen. Accounting Office, GAO/GGD-91-48, [https://www.gao.gov/assets/220/213974.pdf Peer Review: Compliance with the Privacy Act and the Federal Advisory Committee Act] (1991).<br />
*Gen. Accounting Office, GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003).<br />
*[https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf A Citizen’s Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records], Report by the Comm. on Oversight and Gov’t Reform, 112th Cong. (2012).<br />
*Dep’t of Justice, [https://www.justice.gov/opcl/file/793026/download Overview of the Privacy Act of 1974] (2015).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Lillian R. Bevier, [https://core.ac.uk/download/pdf/73966670.pdf Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection], 4 Wm. & Mary Bill Rights J. 455 (1991).<br />
*Babette Boliek, ''Prioritizing Privacy in the Courts and Beyond'', 103 Cornell L. Rev. 1101 (2018).<br />
*Jonathan C. Bond, Note, [http://www.gwlr.org/wp-content/uploads/2012/08/76-5-Bond.pdf Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century], 76 Geo. Wash. L. Rev. 1232 (2008).<br />
*William S. Challis & Ann Cavoukian, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1148&context=jitpl The Case for a U.S. Privacy Commissioner: A Canadian Commissioner’s Perspective], 19 J. Marshall J. Computer & Info. L. 1 (2000).<br />
*Todd Robert Coles, Comment, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1848&context=aulr Does the Privacy Act of 1974 Protect Your Right to Privacy?: An Examination of the Routine Use Exemption], 40 Am. U. L. Rev. 957 (1991).<br />
*John M. Eden, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1140&context=dltr When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID], 2005 Duke L. & Tech. Rev. 20 (2005).<br />
*Haeji Hong, [https://www.uakron.edu/dotAsset/727663.pdf Dismantling the Private Enforcement of the Privacy Act of 1974: Doe v. Chao], 38 Akron L. Rev. 71 (2005).<br />
*Margaret Hu, ''The Ironic Privacy Act'', 96 Wash. U.L. Rev. 1267 (2019).<br />
*Joseph V. Kaplan & John Mahoney, ''Reckless Disregard: Intentional and Willful Violations of the Privacy Act’s Investigatory Requirements'', 44 Fed. Law. No. 4, at 38 (1997).<br />
*Alex Kardon, [http://www.harvard-jlpp.com/wp-content/uploads/2013/10/KardonFinal.pdf Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform], 34 Harv. J. L. & Pub. Pol’y 705 (2011).<br />
*Flavio Komuves, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1243&context=jitpl We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers], 16 J. Marshall J. Computer & Info. L. 529 (1998).<br />
*Frederick Z. Lodge, Note, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2579&context=flr Damages Under the Privacy Act of 1974: Compensation and Deterrence], 52 Fordham L. Rev. 611 (1984).<br />
*Caleb A. Seeley, Note, [https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-91-5-Seeley.pdf Once More unto the Breach: The Constitutional Right to Informational Privacy and the Privacy Act], 91 N.Y.U. L. Rev. 1355 (2016).<br />
*Lisa A. Reilly, ''The Government in the Sunshine Act and the Privacy Act'', 55 Geo. Wash. L. Rev. 955 (1987).<br />
*Nicole M. Quallen, [https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4408&context=nclr Damages under the Privacy Act: Is Emotional Harm Actual], 88 N.C. L. Rev. 334 (2009).<br />
*Paul M. Schwartz, [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2572&context=facpubs Privacy and Participation: Personal Information and Public Sector Regulation in the United States], 80 Iowa L. Rev. 553 (1995).<br />
*Daniel Solove, [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2085&context=faculty_publications Identity Theft, Privacy, and the Architecture of Vulnerability], 54 Hastings L.J. 1227 (2003).<br />
*Julianne M. Sullivan, Comment, [https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=cwlr Will the Privacy Act of 1974 Still Hold Up in 2004? How Advancing Technology Has Created a Need for a Change in the “System of Records” Analysis], 39 Cal. W. L. Rev. 395 (2003).<br />
*Thomas M. Susman, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=2035&context=lawreview Privacy Act and the Freedom of Information Act: Conflict and Resolution], 21 J. Marshall L. Rev. 703 (1988).<br />
*Ari Ezra Waldman, ''Privacy Law's False Promise'', 97 Wash. U.L. Rev. 773 (2020).<br />
</div><br />
<br />
===Selected Cases Not Included in the Text===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798 (N.D. Ga. 1978).<br />
*''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
*''Albright v. United States'', 631 F.2d 915 (D.C. Cir. 1980).<br />
*''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980).<br />
*''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980).<br />
*''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981).<br />
*''Fitzpatrick v. United States'', 665 F.2d 327 (11th Cir. 1982).<br />
*''Clarkson v. IRS'', 678 F.2d 1368 (11th Cir. 1982).<br />
*''Johnson v. U.S. Dep’t of the Treasury'', 700 F.2d 971 (5th Cir. 1983).<br />
*''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
*''Molerio v. FBI'', 749 F.2d 815 (D.C. Cir. 1984).<br />
*''Elm v. Nat’l R.R. Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984).<br />
*''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
*''Vymetalik v. FBI'', 785 F.2d 1090 (D.C. Cir. 1986).<br />
*''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987).<br />
*''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988).<br />
*''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989).<br />
*''Pototsky v. U.S. Dep’t of the Navy'', 717 F. Supp. 20 (D. Mass. 1989).<br />
*''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989).<br />
*''Quinn v. Stone'', 978 F.2d 126, 133 (3rd Cir. 1992).<br />
*''Kassel v.'' U.S. ''Dep’t of Veterans Affairs'', No. 87-217-S (D.N.H. Mar. 30, 1992).<br />
*''United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997).<br />
*''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976).<br />
*''In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439 (D.C. Cir. 1996).<br />
*''Alexander v. FBI'', 971 F. Supp. 603 (D.D.C. 1997).<br />
*''Shannon v. General Elec. Co.'', 812 F. Supp. 308 (N.D.N.Y. 1993).<br />
*''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996).<br />
*[http://www.vawd.uscourts.gov/OPINIONS/WILSON/600CV0005(3).PDF Falwell v. Exec. Office of the President], 113 F. Supp. 2d 967 (W.D. Va. 2000).<br />
*''Dale v. Exec. Office of the President'', 164 F. Supp. 2d 22 (D.D.C. 2001).<br />
*''Trulock v. DOJ'', No. 00-2234, slip op. (D.D.C. Sept. 18, 2001).<br />
*''Tripp v. Exec. Office of the President'', 200 F.R.D. 140 (D.D.C. 2001).<br />
*''Broaddrick v. Exec. Office of the President'', 139 F. Supp. 2d 55 (D.D.C. 2001).<br />
*''Flowers v. Exec. Office of the President'', 142 F. Supp. 2d 38 (D.D.C. 2001).<br />
*''Jones v. Exec. Office of the President'', 167 F. Supp. 2d 10 (D.D.C. 2001).<br />
*''Sculimbrene v. Reno'', 158 F. Supp. 2d 26 (D.D.C. 2001).<br />
*''Schwarz v. U.S. Dep’t of the Treasury'', 131 F. Supp. 2d 142 (D.D.C. 2000).<br />
*''Cobell v. Norton'', 157 F. Supp. 2d 82 (D.D.C. 2001).<br />
*''Cummings v. U.S. Dep’t of the Navy'', 279 F.3d 1051 (D.C. Cir. 2002).<br />
*''McCready v. Principi'', 297 F. Supp. 2d 178 (D.D.C. 2003).<br />
*''Chang v. U.S. Dep’t of the Navy'', 314 F. Supp.2d 35 (D.D.C. 2004).<br />
*''Maydak v. United States'', 363 F.3d 512 (D.C. Cir. 2004).<br />
*[https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614 (2004).<br />
*''NASA v. Nelson'', 562 U.S. 134 (2011).<br />
*[https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 132 S. Ct. 1441 (2012).<br />
*''Logan v. U.S. Dep’t of Veterans Affairs'', 357 F. Supp. 2d 149 (D.D.C. 2004).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2006/03/13/0335877.pdf Oja v. U.S. Army Corps of Engineers], 440 F.3d 1122 (9th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/013337AFDE8A8304852574400044F8CC/$file/04-5425a.pdf McCready v. Nicholson], 465 F.3d 1 (D.C. Cir. 2006).<br />
*[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2006/D01-30/C:04-3888:J:_:aut:T:op:N:0:S:0 Bassiouni v. FBI], 436 F.3d 712 (7th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/E94B1B7BAE4935098525744000455619/$file/06-5085b.pdf Sussman v. U.S. Marshals Serv.], 494 F.3d 1106 (D.C. Cir 2007).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/9F94563D7D135A85852578000052F342/$file/07-5257-1132633.pdf Wilson v. Libby], 535 F.3d 697 (D.C. Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2008/05/02/0615191.pdf Lane v. U.S. Dep’t of the Interior], 523 F.3d 1128 (9th Cir. 2008).<br />
*[http://media.ca8.uscourts.gov/opndir/08/03/071576P.pdf Doe v. U.S. Dep’t of Veterans Affairs], 519 F.3d 456 (8th Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2009/05/21/06-15967.pdf Rouse v. U.S. Dep’t of State], 567 F.3d 408 (9th Cir. 2009).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/EAC6966EA3FE7C2885257807005C6E66/$file/07-5352-1285040.pdf Maydak v United States], 630 F.3d 166 (D.C. Cir. 2010).<br />
*[http://media.ca11.uscourts.gov/opinions/pub/files/200916154.pdf Speaker v. U.S. Dep’t of Health and Human Serv. Ctr. for Disease Control and Prevention], F.3d 1371 (11th Cir. 2010).<br />
*[https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58 Sieverding v. DOJ], 693 F. Supp. 2d 93 (D.D.C. 2010).<br />
*[http://www.opn.ca6.uscourts.gov/opinions.pdf/11a0098p-06.pdf Shearson v. DHS], 638 F.3d 498 (6th Cir. 2011).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir. 2015).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/57E67EBF550EDDAB8525822C005378F2/$file/16-5045-1716627.pdf Liff v. Office of Inspector Gen. for the U.S. Dep’t of Labor], 881 F.3d 912 (D.C. Cir. 2018).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Fazaga v. FBI], 916 F.3d 1201 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/22/17-17349.pdf Rojas v. FAA], 941 F.3d 392 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/18-15416.pdf Garris v. FBI], 937 F.3d 1284 (9th Cir. 2019).<br />
*[https://law.justia.com/cases/federal/appellate-courts/cadc/17-5117/17-5117-2019-06-21.html In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.], 928 F.3d 42 (D.C. Cir. 2019).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Privacy Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a. Records maintained on individuals]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Privacy_Act&diff=1677Privacy Act2023-08-15T20:55:31Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] (2012), enacted by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 3, 88 Stat. 1897, Dec. 31, 1974; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-89/pdf/STATUTE-89-Pg1057.pdf Pub. L. No. 94-183], § 2(2), 89 Stat. 1057, Dec. 31, 1975; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365], § 2, 96 Stat. 1749, Oct. 25, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1819.pdf Pub. L. No. 97-375], title II, § 201(a), (b), 96 Stat. 1821, Dec. 21, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2467.pdf Pub. L. No. 97-452], §2(a)(1), 96 Stat. 2478, Jan. 12, 1983; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c), 98 Stat. 2211, Oct. 15, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], title I, §107(g), 98 Stat. 2292, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503], §§ 28, 102 Stat. 2507-2514, Oct. 18, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1388.pdf Pub. L. No. 101-508], title VII, §7201(b)(1), 104 Stat. 1388-(3), Nov. 5, 1990; by [https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1466.pdf Pub. L. No. 103-66], title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107 Stat. 611, Aug. 10, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ193/pdf/PLAW-104publ193.pdf Pub. L. No. 104-193], title I, § 110(w), 110 Stat. 2175, Aug. 22, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ226/pdf/PLAW-104publ226.pdf Pub. L. No. 104-226], § 1(b)(3), 110 Stat. 3033, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ316/pdf/PLAW-104publ316.pdf Pub. L. No. 104-316], title I, § 115(g)(2)(b), 110 Stat. 3835, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ34/PLAW-105publ34.pdf Pub. L. No. 105-34], title IX, subtitle C, § 1026(b)(2), 111 Stat. 925, Aug. 5, 1997; by [https://www.govinfo.gov/content/pkg/PLAW-105publ362/pdf/PLAW-105publ362.pdf Pub. L. No. 105-362], title XIII, § 1301(d), 112 Stat.3292, Nov. 10, 1998; by [https://www.govinfo.gov/content/pkg/PLAW-108publ271/pdf/PLAW-108publ271.pdf Pub. L. No. 108-271], 118 Stat. 814, July 7, 2004; by [https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf Pub. L. No. 111-148], Title VI, § 6402(b)(2), 124 Stat. 756, Mar. 23, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203], Title X, § 1082, 124 Stat. 2080, July 21, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-113publ295/pdf/PLAW-113publ295.pdf Pub. L. No. 113-295], Div. B, Title I, § 102(c), 128 Stat. 4062, Dec. 19, 2014.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
==Overview==<br />
The Privacy Act of 1974 represents the Congressional response to concerns about government uses of information collected about private individuals. The Privacy Act gives individuals greater control over the gathering, dissemination, and accuracy of information collected about themselves by agencies. ''Miller v. United States'', 630 F. Supp. 347 (E.D.N.Y. 1986). The main purpose of the Privacy Act is to forbid disclosure unless it is required by the [[Freedom of Information Act]] (FOIA). ''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980). To protect individual privacy, the Privacy Act constrains executive branch recordkeeping, defines the individual’s right to access certain records, limits agency disclosure of records containing an individual’s private information, establishes safeguards to protect records concerning individuals, and provides remedies for agency violation of the Privacy Act’s provisions.<br />
<br />
===Scope===<br />
<br />
The Privacy Act covers records maintained by agencies as defined in FOIA. It applies to Cabinet-level departments, independent regulatory agencies, military departments, and government corporations. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(a)(1)]. It does not apply to the legislative branch, national banks (''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981)), or Amtrak (''Ehm v. National R.R.'' ''Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984), ''cert. denied'', 469 U.S. 982 (1984)). ''See Alexander v. FBI'', 971 F. Supp. 603, 606-07 (D.D.C. 1997) (recognizing that the definition of “agency” under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President’s immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, but, nevertheless rejecting such limitation with regard to “agency” as used in the Privacy Act due to the different purposes that the two statutes serve); ''Shannon v. Gen. Elec. Co.'', 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) (stating there is “no dispute” that General Electric (GE) falls within the definition of “agency” subject to requirements of the Privacy Act where, pursuant to a contract, it operated a Department of Energy-owned lab under the supervision, control, and oversight of the Department and where, by terms of the contract, GE agreed to comply with the Privacy Act).<br />
<br />
A record is a collection or grouping of information about an individual that, for example, may include educational, financial, or biographical information, together with personal identifiers such as names, photos, numbers, or fingerprints. 5 U.S.C. § 552a(a)(4). The Privacy Act does not apply to all government records and documents that may contain an individual’s name or other private information. For example, it does not include the private notes of a supervisor if such notes are not used by the agency to make decisions. ''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989). But such notes may become subject to the Privacy Act if they become part of an agency’s decision. ''Chapman v. NASA'', 682 F.2d 526 (5th Cir. 1982), ''cert. denied'', 469 U.S. 1038 (1984). The Act also does not apply to information in documents obtained from independent sources of information, even though identical information may be in an agency’s system of records. ''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
<br />
The Privacy Act focuses on “systems of records” established, maintained, or controlled by an agency. A “system of records” is a group of any records where individual names or other individual identifiers can be used to retrieve the information. 5 U.S.C. § 552a(a)(5). Agencies may maintain records covered by the Privacy Act only when they are relevant and necessary to accomplish the agency’s purpose. 5 U.S.C. § 552a(e)(1). The Court of Appeals for the District of Columbia Circuit addressed the “system of records” definition in the context of computerized information in ''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996), and noted that “the [Office of Management and Budget] guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person’s name, but the agency must in fact retrieve records in this way in order for a system of records to exist.” ''Id.'' at 1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is retrieved” in the statute’s definition of a system of records and focused on whether the agency “in practice” retrieved information. ''Id.'' at 1459-61.<br />
<br />
===Access to Records===<br />
Where the agency is authorized to keep records covered by the Privacy Act, an individual has a right of access to records concerning him or her. This is a central protection of the Privacy Act for individuals. The individual has a right to:<br />
<br />
*Copy any or all of the record (§ 552a(d)(1));<br />
*Request amendment of the record (§ 552a(d)(2)) and file a concise statement of disagreement if the agency refuses to amend the record that will be provided to all persons to whom the record is disclosed (§ 552a(d)(4)); and<br />
*Request an accounting from the agency on the date, nature, and purpose of each disclosure of the record (§ 552a(c)).<br />
<br />
The individual has an absolute right to access and need not provide any reason for seeking access. ''FTC v. Shaffner'', 626 F.2d 32 (7th Cir. 1980).<br />
<br />
===Agency Requirements=== <br />
For each system of records an agency maintains, it must:<br />
<br />
*Publish in the ''Federal Register'' the name and location of the system; the categories of individuals contained in the system; the routine use of the records; agency policies concerning the records including storage, retrieval, access, retention, and disposal; the person, including title and address, responsible for the system; the method used to notify individuals how to gain access to records about themselves; and the sources or records in the system. Any new use of the system must be noticed for comment 30 days prior to implementing the new use. Exempt systems must also be noticed. ''See, e.g.,'' 5 U.S.C.§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a(b)(3)], (e)(4), and (e)(11);<br />
*Maintain records in the system accurately, completely, and timely to ensure fairness to the individuals (§ 552a(e)(5));<br />
*Establish rules and training for persons designing, developing, operating, or maintaining the system to ensure compliance with the Privacy Act and the agency’s implementing policies (§ 552a(e)(9));<br />
*Establish safeguards for the protection of records (§ 552a(e)(10)); and<br />
*Inform government contractors of their duties under the Privacy Act (§ 552a(m)).<br />
<br />
When the agency collects information that “may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs,” the Privacy Act requires the information to be collected, to the “greatest extent practicable,” directly from the affected individual. 5 U.S.C. § 552a(e)(2). When requesting such information from individuals, the agency must disclose: (1) the authority under which collection is authorized; (2) the principal purposes for which the information is needed; (3) the routine use of the information; and (4) consequences, if any, of not providing the information. 5 U.S.C. § 552a(e)(3).<br />
<br />
The Privacy Act mandates that information maintained in agency records be as relevant and as necessary as possible to accomplish the agency’s purpose. It must also undertake to maintain the information with such accuracy and completeness as is reasonably necessary to assure fairness to the individual. In ''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987), the court sitting en banc held that an agency may satisfy this requirement by supplementing the information an individual considers damaging with the individual’s explanation or disagreement with the accuracy of the information. The court found that the agency made a reasonable effort to determine the accuracy of the information and that an adjudication of the disputed facts was not necessary for the agency’s purposes. The court said that in some cases, fairness may require a record to contain both versions of a disputed fact.<br />
<br />
Agencies are prohibited from maintaining records describing how an individual exercises First Amendment rights, unless such records are authorized by statute or are pertinent to and within the scope of authorized law enforcement activity. 5 U.S.C. § 552a(e)(7). Such records are subject to the Privacy Act even if not kept in “a system of records.” ''Clarkson v. IRS'', 678 F.2d 1368, 1373-77 (11th Cir. 1982), ''cert. denied'', 481 U.S. 1031. ''Cf. Pototsky v. U.S. Dep’t of Navy'', 717 F. Supp. 20 (D. Mass. 1989). Guidelines from the Office of Management and Budget (OMB) call for the broadest reasonable interpretation of the prohibition.<br />
<br />
===Exemptions from Access===<br />
The Privacy Act provides general (§ 552a(j)) and specific (§ 552a(k)) exemptions. These are exemptions allowing an agency to deny access to the record by the individual to whom the record pertains. The two types of exemptions are different in nature and consequences and are discretionary on the agency’s part. To be effective, the agency must first determine that a record or system of records meets the criteria for exemption under the Privacy Act and then publish the exemption as a rule under the [[Administrative Procedure Act]]’s (APA) notice-and-comment provisions. Failure to set out reasons demonstrating that the exemption meets the requirements of the Privacy Act may leave the records subject to the Privacy Act. ''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980). The exemptions do not authorize the agency to use the record in a manner other than the manner originally set out in the ''Federal Register'' establishing the system of records. ''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
A general exemption denies access by an affected individual under virtually all the Privacy Act’s provisions and is available for records maintained by the Central Intelligence Agency or by an agency whose principal functions are criminal law enforcement. The general exemption may not be used to exempt records compiled for a noncriminal or administrative purpose even if they are also a part of a system of records maintained by an agency qualified to assert the exemption. ''Vymetalik v. FBI'', 785 F.2d 1090, 1095 (D.C. Cir. 1986).<br />
<br />
The specific exemptions (§ 552a(k)(1)(7)) are available to any agency if the head of the agency promulgates rules pursuant to the notice-and-comment provisions of the [[Administrative Procedure Act|APA]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim 553]. The specific exemption is from a particular provision of the Privacy Act. The seven exemptions allowed are:<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim FOIA (b)(1) exemptions] (matters to be kept secret in the interest of national defense or foreign policy and properly classified by executive order);<br />
*Investigatory material compiled for law enforcement purposes that does not fall within the general exemption;<br />
*Material maintained to provide protective service to the President or pursuant to 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3056&num=0&edition=prelim § 3056];<br />
*Confidential investigatory records relating to employment or contracts;<br />
*Statistical records required by statute;<br />
*Testing and examination material related to federal employment; and<br />
*Evaluations related to military promotions obtained confidentially.<br />
<br />
An individual may sue to challenge a denial of access to records based on the general or specific exemptions, and the court will determine the substantive and procedural propriety of the agency’s assertion of the exemption. ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
<br />
===Restrictions on Disclosure===<br />
The Privacy Act prohibits disclosure of any record covered by the Privacy Act without the written request or prior written consent of the person whom the record concerns. 5 U.S.C. § 552a(b). The restriction on disclosure applies to any person or agency and includes any means of communication—written, oral, electronic, or mechanical [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf Responsibilities for the Maintenance of Records About Individuals by Federal Agencies], 40 Fed. Reg. 28948, 28953 (July 9, 1975). Information obtained (or released) through sources independent of agency records is not “disclosure” under the Privacy Act.<br />
<br />
The general rule of nondisclosure is subject to 12 exceptions (§ 552a(b)(1)(12)). They are:<br />
<br />
*Internal agency use on a need to know basis;<br />
*Proper requests under FOIA;<br />
*Routine use;<br />
*Census Bureau activities;<br />
*Statistical research where the recipient has given written assurance that records are not individually identifiable;<br />
*National Archives preservation;<br />
*Information to Congress;<br />
*Information to the Comptroller General in performing Government Accountability Office (GAO) duties;<br />
*Showing of compelling circumstances affecting the health or safety of an individual;<br />
*Pursuant to court order (subpoenas issued by clerks of courts are not “orders” ''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798, 800 (N.D. Ga. 1978));<br />
*To a consumer reporting agency in accordance with 31 U.S.C. § 3711(f); and<br />
*Use by “any governmental jurisdiction . . . for a civil or criminal law enforcement activity” as long as a written request (1) is made by the head of the agency seeking the record, (2) specifies the portion of the record sought, and (3) describes the relevant enforcement activity. ''See Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
“Routine use,” considered generally the most important exception, is defined as “the use of such record for a purpose that is compatible with the purpose for which it was collected.” 5 U.S.C. § 552a(a)(7). Each routine use is identified in the ''Federal Register'' notice upon establishment or revision of each system of records. 5 U.S.C. (§ 552a(e)(4)(D). This exception permits nonconsensual intra- or interagency transfer of what is generally described as “house-keeping” information. Because the language is broad, the potential for abuse is considered great, and the courts have strictly required that the use be clearly and specifically identified in the rule adopted by the agency identifying the system of records. ''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989); ''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988); ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979). The Supreme Court has found that the Privacy Act’s provisions restricting disclosure, even while allowing disclosure for “routine uses,” are sufficient to protect persons’ constitutional right to informational privacy, if such a right exists. ''NASA v. Nelson'', 562 U.S. 134, 153-55 (2011).<br />
<br />
===Review, Relief, Remedies===<br />
The Privacy Act provides that each agency shall promulgate rules that establish, among other things, procedures of notice, disclosure, and review of requests. 5 U.S.C. § 552a(f). In the event that the rules are not followed or that a dispute persists, there are four civil actions: (1) a challenge for failure to provide access; (2) a challenge for refusal to amend; (3) a damages action for improper maintenance of the content of records; and (4) a damages action for other breaches of the Privacy Act or regulations issued thereunder that adversely affect the individual. 5 U.S.C. § 552a(g)(1). The latter two actions require proof of damages and are limited to actual damages. A cause of action for monetary damages requires a showing of an agency’s intentional or willful failure to maintain accurate records and that the violation of the Privacy Act caused the actual damages complained of. ''Molerio v. FBI'', 749 F.2d 815, 826 (D.C. Cir. 1984). Because waivers of sovereign immunity are to be strictly construed, the Supreme Court held that “actual damages” do not include nonpecuniary damages. https://tile.loc.gov/storage-services/service/ll/usrep/usrep566/usrep566284/usrep566284.pdf Fed. Aviation Admin. v. Cooper], 566 U.S. 284 (2012). Remedies for failure to grant access or refusal to amend are injunctive.<br />
<br />
An individual bringing a claim under § 552a(g)(1) must demonstrate a causal connection between the alleged violation and the harm suffered but may not use the Privacy Act claim as the forum in which to prove the entitlement the individual claims was improperly denied. ''Gizoni v. Sw. Marine, Inc.'', 909 F.2d 385 (9th Cir. 1990).<br />
<br />
Criminal penalties are established for willful disclosure of records by those who know such disclosure is prohibited, willful maintenance of a system of records without meeting the appropriate notice requirements, and knowing and willful requests for records under false pretenses. 5 U.S.C. § 552a(i). Each violation is classified as a misdemeanor, and the violator may be fined not more than $5,000. There have been at least two criminal prosecutions for unlawful disclosure of Privacy Act-protected records. ''See United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997) (finding the defendant not guilty; that the prosecution did not prove “beyond a reasonable doubt that defendant ‘willfully disclosed’ protected material”; and that the evidence presented constituted, “at best, gross negligence,” and thus was “insufficient for purposes of prosecution under § 552a(i)(1)”); ''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976) (guilty plea entered). ''See generally In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439, 1441 (D.C. Cir. 1996) (''per curiam'') (indicating the application for reimbursement of attorney fees where independent counsel found no prosecution was warranted under the Privacy Act because there was no conclusive evidence of improper disclosure of information). In a case involving the destruction of records, [https://www.cadc.uscourts.gov/internet/opinions.nsf/1E0F642CD84E034985257B3D004E4186/$file/09-5354-1427961.pdf Gerlich v. DOJ], 711 F.3d 161 (D.C. Cir. 2013), the D.C. Circuit allowed a Privacy Act claim to proceed against senior officials at the Department of Justice on the ground that they created records about appellants in the form of annotations to their applications and internet printouts concerning their political affiliations. The court relied in part on a permissive spoliation inference in light of the destruction of appellants’ records, because the senior department officials had a duty to preserve the annotated applications and internet printouts given that department investigation and future litigation were reasonably foreseeable.<br />
<br />
The Privacy Act provides a two-year statute of limitations. 5 U.S.C. § 552a(g)(5). The time begins to run when a reasonable person should have known of the alleged violation. ''Rose v. United States'', 905 F.2d 1257, 1259 (9th Cir. 1990); ''Diliberti v. United States'', 817 F.2d 1259, 1262 (7th Cir. 1987).<br />
<br />
===Computer Matching===<br />
The Privacy Act was amended in 1988 by the Computer Matching and Privacy Protection Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503]). OMB issued final guidance implementing the amendment’s provisions on June 19, 1989. [https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989)). The amendments added § 552a(o)-(q) to establish procedural safeguards affecting agencies’ use of Privacy Act records when performing computerized matching programs. The amendments require agencies to conclude written agreements specifying terms and safeguards under which matches are to be done. They provide procedures for individuals whose information is contained in the affected records to use to prevent agencies from taking adverse actions unless they have independently verified the results of matching and given the individual advance notice. Oversight is established by requiring ''Federal Register'' notice of matching agreements, reports to OMB and Congress, and the establishment of internal “data integrity boards” to oversee and coordinate the agency’s implementation of matching programs.<br />
<br />
===Relationship to the FOIA===<br />
Two provisions relate to FOIA (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]). Section 552a(b)(2) exempts agencies from the requirement of obtaining an individual’s consent to release of information subject to disclosure under FOIA. In 1984, Congress added provisions delineating an individual’s access rights to records exempt from disclosure under FOIA or the Privacy Act. An agency must give an individual access to a record if it is accessible under either act irrespective of whether it might be withheld under the other (§ 552a(t)). This gives maximum access to records by an individual whose personal information is contained therein. An accounting of the number of FOIA releases of Privacy Act information is not required (§ 552a(c)(1)). If released under FOIA, the agency is relieved from ensuring the accuracy, completeness, timeliness, and relevance of the record (§ 552a(e)(6)). If the system of records is made necessary by FOIA, the agency may exempt the system from the Privacy Act (§ 552a(k)(1)).<br />
<br />
===Social Security Numbers===<br />
The Privacy Act restricts use of an individual’s Social Security account number ([https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 7) (not codified as part of 5 U.S.C. § 552a). This provision applies to state and local governments as well as the federal government and makes it unlawful to deny any right, benefit, or privilege based on an individual’s failure to disclose the Social Security account number, unless the disclosure was required by any federal, state, or local system of records in operation before January 1, 1975, or the disclosure is required by federal law. Since enactment, Congress has required disclosure in the Tax Reform Act of 1976 ([http://uscode.house.gov/statutes/pl/94/455.pdf Pub. L. No. 94-455]), the Deficit Reduction Act of 1984 ([http://uscode.house.gov/statutes/pl/109/171.pdf Pub. L. No. 98-369]), and the Debt Collection Act of 1982 ([https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365]). In the Tax Reform Act of 1976, Congress declared it to be U.S. policy to use Social Security account numbers “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law.” Pub. L. No. 94-455, amending 42 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section405&num=0&edition=prelim 405(c)(2)].<br />
<br />
==Oversight==<br />
The Privacy Act requires OMB to develop guidelines and regulations for its implementation and to provide continuing assistance and oversight. The OMB guidelines are entitled to the usual deference accorded the interpretations of the agency charged with administration of a statute. ''Albright v. United States'', 631 F.2d 915, 919 n.5 (D.C. Cir. 1980); ''Quinn v. Stone'', 978 F.2d 126, 133 (3d Cir. 1992). However, a few courts have rejected particular aspects of the OMB Guidelines as inconsistent with the statute. ''See, e.g.'', ''Kassel v. U.S. Dep’t of Veterans Affairs'', No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); [https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614, 627 n.11 (2004) (disagreeing with dissent’s reliance on OMB interpretation of damages provision since the Court does “not find its unelaborated conclusion persuasive”).<br />
<br />
The vast majority of OMB’s Privacy Act guidelines are published in [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (1975). However, these original guidelines have been supplemented in particular subject areas over the years, including:<br />
<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Appendix I to OMB Circular No. A-130], most recently revised at [https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 81 Fed. Reg. 49689] (July 28, 2016)).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act Supplemental Guidance], 40 Fed. Reg. 56741 (Dec. 4,1975) (system of records definition, routine use and intra-agency disclosures, consent and congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to FOIA).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Guidelines on the Relationship of the Debt Collection of 1982 to the Privacy Act of 1974], 48 Fed. Reg. 15556 (Apr. 11, 1983) (relationship to Debt Collection Act).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Guidance on the Privacy Act Implications of “Call Detail” Programs to Manage Employees’ Use of the Government’s Telecommunications Systems], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf 52 Fed. Reg. 12990-93] (Apr. 20, 1987) (“call detail” programs).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (June 19, 1989) (computer matching).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf 56 Fed. Reg. 18599] (proposed Apr. 23, 1991) (computer matching);<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (1996) (“Federal Agency Responsibilities for Maintaining Records About Individuals”).<br />
<br />
Thus, when researching in this area, it may be important to check subsequent supplements.<br />
<br />
In 1998, President Clinton called upon all federal agencies to take further privacy-protection steps within the next year. [https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998). Specifically, the President directed each agency to designate a senior official with responsibility for privacy policy to apply the Principles for Providing and Using Personal Information that were developed through the Information Infrastructure Task Force under the auspices of the Department of Commerce in 1995 and to conduct a series of reviews of agency record systems in order to ensure compliance with Privacy Act requirements. The Privacy Act related reviews, conducted in accordance with instructions issued by OMB, reported results to OMB. The memorandum also provided that OMB issue further guidance on the making of “routine use” disclosures under the Privacy Act.<br />
<br />
Section 208 (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=(title:44%20section:3501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title44-section3501)&f=treesort&edition=prelim&num=0&jumpTo=true § 3501 note]) of the [[E-Government Act of 2002]] requires that OMB issue guidance to agencies on implementing the privacy provisions of the E-Government Act. Under this guidance, agencies are required to conduct privacy impact assessments for electronic information systems and collections, make them publicly available, post privacy policies on agency websites used by the public, translate privacy policies into a standardized machine-readable format, and report annually to OMB on compliance with the E-Government Act.<br />
<br />
In 2002, GAO conducted an extensive review of agency Privacy Act practices, and reported on its findings in June 2003. GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003). <br />
<br />
While most questions concerning the Privacy Act should first be directed to agency Privacy Act officers, important policy or litigation questions, or questions concerning the OMB Guidelines, may be directed to the [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs].<br />
<br />
==Legislative History==<br />
The Privacy Act reflects the merger of seemingly disparate bills from the Senate and the House: S. 3418, introduced by Senator Sam Ervin (D-NC), and H.R. 16373, supported by the Administration. The Senate bill would have granted sweeping powers to a Federal Privacy Board for the oversight of collection, maintenance, and dissemination of individually identifiable information by both the public and private sectors, while the House bill focused on access to and correction of records, data collection, and maintenance standards. The Senate approved its bill on November 21, 1974, after consideration and, on the same day, the House bill was passed by a 353 to 1 vote, after two days of floor debate.<br />
<br />
The bills were not reconciled by the usual conference committee because of the limited time available between the end of Thanksgiving recess and the end of the session. Instead, the respective staffs of the committees studied the differing bills, reported to the committees and, after informal meetings, reached an agreement. The description of the amendments that made the two bills identical (thus avoiding a conference committee) was inserted into the record of both sides, and both houses passed identical bills. Thus, many of the most important provisions of the bill are not explained by committee reports. The only record of the final negotiations leading to the bill actually adopted is a staff memorandum entitled ''Analysis of House and Senate Compromise Amendments to the Federal Privacy Act''; ''see also'' [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S.3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976)).<br />
<br />
The final product included most of the fair information practices defined in the Senate version and the access and correction provisions of the House bill. None of the Senate provisions relating to a Federal Privacy Board was included. However, the Privacy Act provided for two important means of further development and oversight:<br />
<br />
*it instructed OMB to develop guidelines for the implementation of the Privacy Act throughout the executive branch; and<br />
*the Privacy Protection Study Commission was created by the Privacy Act to study the issues raised by the Privacy Act and to recommend further legislation, and it subsequently completed its thorough and informative report, [https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society].<br />
<br />
The bill was signed by President Ford on December 31, 1974 and became effective September 1975.<br />
<br />
===Source Note===<br />
The legislative history of the original Act is exhaustively collected in [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976). <br />
<br />
The Department of Justice’s [https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition Overview of the Privacy Act of 1974] is updated periodically and discusses the extensive case law under the Privacy Act.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*Joint Comm. on Government Operations, [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy], 94th Cong. (1976).<br />
*H.R. Rep. No. 100-802 (1988).<br />
*S. Rep. No. 100-516 (1988).<br />
*''Who Cares About Privacy? Oversight of the Privacy Act of 1974 by the Office of Management and Budget and by the Congress,'' ''H.R. Rep. No. 98-455'', Hearings Before Subcomm. of the H. Comm. on Gov’t Operations, 98th Cong. (1983).<br />
*America’s Healthy Future Act of 2009, [https://www.congress.gov/111/crpt/srpt89/CRPT-111srpt89.pdf S. Rep. No. 111-89] (2009).<br />
*The Restoring American Financial Stability Act of 2010, [https://www.congress.gov/111/crpt/srpt176/CRPT-111srpt176.pdf S. Rep. No. 111-176] (2010).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. 112-689] (2012).<br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998).<br />
*Executive Order 13478, [https://www.govinfo.gov/content/pkg/FR-2008-11-20/pdf/E8-27771.pdf Amendments to Executive Order 9397 Relating to Federal Agency Use of Social Security Numbers], 73 Fed. Reg. 70239 (Nov. 20, 2008).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2020-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-2%2C%20Protected%20Materials%20CLEAN%2012%2028%202020.pdf Protected Materials in Public Rulemaking Dockets]<br />
*2021-6 [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Circular A-108] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act of 1974, Supplementary Guidance], 40 Fed. Reg. 56741 (Dec. 4, 1975).<br />
*''Revised Supplemental Guidance for Conducting Matching Programs'', 47 Fed. Reg. 21656 (May 19, 1982).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Debt Collection Act Guidelines], 48 Fed. Reg. 15556 (Apr. 11, 1983).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (July 9, 1975); supplemented at:<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf 40 Fed. Reg. 56741] (1975).<br />
**49 Fed. Reg. 12338 (1984).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (1989).<br />
*''Management of Federal Information Resources'', Circular A130, 50 Fed. Reg. 52730 (Dec. 24, 1985).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Final Guidance on Privacy Act Implications of “Call Detail” Programs], 52 Fed. Reg. 12290 (Apr. 20, 1987).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Pub. L. No. 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], 56 Fed. Reg. 18599 (Apr. 23, 1991).<br />
*''Proposed Revision of OMB Circular A130'', 57 Fed. Reg. 18296 (Apr. 29, 1992).<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (Feb. 20, 1996).<br />
*M-0105, [https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-05-Guidance-on-Inter-Agency-Sharing-of-Personal-Data-Protecting-Personal-Privacy.pdf Guidance on Inter-Agency Sharing of Personal Data—Protecting Personal Privacy] (2000).<br />
*M-0322, [https://www.whitehouse.gov/wp-content/uploads/2017/11/203-M-03-22-OMB-Guidance-for-Implementing-the-Privacy-Provisions-of-the-E-Government-Act-of-2002-1.pdf Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002] (2003).<br />
*[https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 Revision of OMB Circular No. A-130 “Managing Information as a Strategic Resource”], 81 Fed. Reg. 49689 (July 28, 2016).<br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports on E-Government Act Implementation from 2003-2015]<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/egov_docs/egov_implementation_report_6_17_16.pdf 2015 Annual Report to Congress: E-Government Act Implementation]<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/egov/documents/omb-fy-2016-egov-act-report.pdf 2016 Annual Report to Congress: E-Government Act Implementation]<br />
*M-21-04, [https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act] (2020).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission] (1977).<br />
*Gen. Accounting Office, GAO/PEMD-87-2, [https://www.gao.gov/assets/150/144893.pdf Computer Matching: Assessing its Costs and Benefits] (1986).<br />
*Gen. Accounting Office, GAO/GGD-91-48, [https://www.gao.gov/assets/220/213974.pdf Peer Review: Compliance with the Privacy Act and the Federal Advisory Committee Act] (1991).<br />
*Gen. Accounting Office, GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003).<br />
*[https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf A Citizen’s Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records], Report by the Comm. on Oversight and Gov’t Reform, 112th Cong. (2012).<br />
*Dep’t of Justice, [https://www.justice.gov/opcl/file/793026/download Overview of the Privacy Act of 1974] (2015).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Lillian R. Bevier, [https://core.ac.uk/download/pdf/73966670.pdf Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection], 4 Wm. & Mary Bill Rights J. 455 (1991).<br />
*Babette Boliek, ''Prioritizing Privacy in the Courts and Beyond'', 103 Cornell L. Rev. 1101 (2018).<br />
*Jonathan C. Bond, Note, [http://www.gwlr.org/wp-content/uploads/2012/08/76-5-Bond.pdf Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century], 76 Geo. Wash. L. Rev. 1232 (2008).<br />
*William S. Challis & Ann Cavoukian, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1148&context=jitpl The Case for a U.S. Privacy Commissioner: A Canadian Commissioner’s Perspective], 19 J. Marshall J. Computer & Info. L. 1 (2000).<br />
*Todd Robert Coles, Comment, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1848&context=aulr Does the Privacy Act of 1974 Protect Your Right to Privacy?: An Examination of the Routine Use Exemption], 40 Am. U. L. Rev. 957 (1991).<br />
*John M. Eden, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1140&context=dltr When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID], 2005 Duke L. & Tech. Rev. 20 (2005).<br />
*Haeji Hong, [https://www.uakron.edu/dotAsset/727663.pdf Dismantling the Private Enforcement of the Privacy Act of 1974: Doe v. Chao], 38 Akron L. Rev. 71 (2005).<br />
*Margaret Hu, ''The Ironic Privacy Act'', 96 Wash. U.L. Rev. 1267 (2019).<br />
*Joseph V. Kaplan & John Mahoney, ''Reckless Disregard: Intentional and Willful Violations of the Privacy Act’s Investigatory Requirements'', 44 Fed. Law. No. 4, at 38 (1997).<br />
*Alex Kardon, [http://www.harvard-jlpp.com/wp-content/uploads/2013/10/KardonFinal.pdf Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform], 34 Harv. J. L. & Pub. Pol’y 705 (2011).<br />
*Flavio Komuves, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1243&context=jitpl We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers], 16 J. Marshall J. Computer & Info. L. 529 (1998).<br />
*Frederick Z. Lodge, Note, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2579&context=flr Damages Under the Privacy Act of 1974: Compensation and Deterrence], 52 Fordham L. Rev. 611 (1984).<br />
*Caleb A. Seeley, Note, [https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-91-5-Seeley.pdf Once More unto the Breach: The Constitutional Right to Informational Privacy and the Privacy Act], 91 N.Y.U. L. Rev. 1355 (2016).<br />
*Lisa A. Reilly, ''The Government in the Sunshine Act and the Privacy Act'', 55 Geo. Wash. L. Rev. 955 (1987).<br />
*Nicole M. Quallen, [https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4408&context=nclr Damages under the Privacy Act: Is Emotional Harm Actual], 88 N.C. L. Rev. 334 (2009).<br />
*Paul M. Schwartz, [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2572&context=facpubs Privacy and Participation: Personal Information and Public Sector Regulation in the United States], 80 Iowa L. Rev. 553 (1995).<br />
*Daniel Solove, [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2085&context=faculty_publications Identity Theft, Privacy, and the Architecture of Vulnerability], 54 Hastings L.J. 1227 (2003).<br />
*Julianne M. Sullivan, Comment, [https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=cwlr Will the Privacy Act of 1974 Still Hold Up in 2004? How Advancing Technology Has Created a Need for a Change in the “System of Records” Analysis], 39 Cal. W. L. Rev. 395 (2003).<br />
*Thomas M. Susman, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=2035&context=lawreview Privacy Act and the Freedom of Information Act: Conflict and Resolution], 21 J. Marshall L. Rev. 703 (1988).<br />
*Ari Ezra Waldman, ''Privacy Law's False Promise'', 97 Wash. U.L. Rev. 773 (2020).<br />
</div><br />
<br />
===Selected Cases Not Included in the Text===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798 (N.D. Ga. 1978).<br />
*''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
*''Albright v. United States'', 631 F.2d 915 (D.C. Cir. 1980).<br />
*''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980).<br />
*''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980).<br />
*''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981).<br />
*''Fitzpatrick v. United States'', 665 F.2d 327 (11th Cir. 1982).<br />
*''Clarkson v. IRS'', 678 F.2d 1368 (11th Cir. 1982).<br />
*''Johnson v. U.S. Dep’t of the Treasury'', 700 F.2d 971 (5th Cir. 1983).<br />
*''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
*''Molerio v. FBI'', 749 F.2d 815 (D.C. Cir. 1984).<br />
*''Elm v. Nat’l R.R. Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984).<br />
*''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
*''Vymetalik v. FBI'', 785 F.2d 1090 (D.C. Cir. 1986).<br />
*''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987).<br />
*''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988).<br />
*''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989).<br />
*''Pototsky v. U.S. Dep’t of the Navy'', 717 F. Supp. 20 (D. Mass. 1989).<br />
*''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989).<br />
*''Quinn v. Stone'', 978 F.2d 126, 133 (3rd Cir. 1992).<br />
*''Kassel v.'' U.S. ''Dep’t of Veterans Affairs'', No. 87-217-S (D.N.H. Mar. 30, 1992).<br />
*''United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997).<br />
*''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976).<br />
*''In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439 (D.C. Cir. 1996).<br />
*''Alexander v. FBI'', 971 F. Supp. 603 (D.D.C. 1997).<br />
*''Shannon v. General Elec. Co.'', 812 F. Supp. 308 (N.D.N.Y. 1993).<br />
*''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996).<br />
*[http://www.vawd.uscourts.gov/OPINIONS/WILSON/600CV0005(3).PDF Falwell v. Exec. Office of the President], 113 F. Supp. 2d 967 (W.D. Va. 2000).<br />
*''Dale v. Exec. Office of the President'', 164 F. Supp. 2d 22 (D.D.C. 2001).<br />
*''Trulock v. DOJ'', No. 00-2234, slip op. (D.D.C. Sept. 18, 2001).<br />
*''Tripp v. Exec. Office of the President'', 200 F.R.D. 140 (D.D.C. 2001).<br />
*''Broaddrick v. Exec. Office of the President'', 139 F. Supp. 2d 55 (D.D.C. 2001).<br />
*''Flowers v. Exec. Office of the President'', 142 F. Supp. 2d 38 (D.D.C. 2001).<br />
*''Jones v. Exec. Office of the President'', 167 F. Supp. 2d 10 (D.D.C. 2001).<br />
*''Sculimbrene v. Reno'', 158 F. Supp. 2d 26 (D.D.C. 2001).<br />
*''Schwarz v. U.S. Dep’t of the Treasury'', 131 F. Supp. 2d 142 (D.D.C. 2000).<br />
*''Cobell v. Norton'', 157 F. Supp. 2d 82 (D.D.C. 2001).<br />
*''Cummings v. U.S. Dep’t of the Navy'', 279 F.3d 1051 (D.C. Cir. 2002).<br />
*''McCready v. Principi'', 297 F. Supp. 2d 178 (D.D.C. 2003).<br />
*''Chang v. U.S. Dep’t of the Navy'', 314 F. Supp.2d 35 (D.D.C. 2004).<br />
*''Maydak v. United States'', 363 F.3d 512 (D.C. Cir. 2004).<br />
*[https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614 (2004).<br />
*''NASA v. Nelson'', 562 U.S. 134 (2011).<br />
*[https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 132 S. Ct. 1441 (2012).<br />
*''Logan v. U.S. Dep’t of Veterans Affairs'', 357 F. Supp. 2d 149 (D.D.C. 2004).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2006/03/13/0335877.pdf Oja v. U.S. Army Corps of Engineers], 440 F.3d 1122 (9th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/013337AFDE8A8304852574400044F8CC/$file/04-5425a.pdf McCready v. Nicholson], 465 F.3d 1 (D.C. Cir. 2006).<br />
*[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2006/D01-30/C:04-3888:J:_:aut:T:op:N:0:S:0 Bassiouni v. FBI], 436 F.3d 712 (7th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/E94B1B7BAE4935098525744000455619/$file/06-5085b.pdf Sussman v. U.S. Marshals Serv.], 494 F.3d 1106 (D.C. Cir 2007).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/9F94563D7D135A85852578000052F342/$file/07-5257-1132633.pdf Wilson v. Libby], 535 F.3d 697 (D.C. Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2008/05/02/0615191.pdf Lane v. U.S. Dep’t of the Interior], 523 F.3d 1128 (9th Cir. 2008).<br />
*[http://media.ca8.uscourts.gov/opndir/08/03/071576P.pdf Doe v. U.S. Dep’t of Veterans Affairs], 519 F.3d 456 (8th Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2009/05/21/06-15967.pdf Rouse v. U.S. Dep’t of State], 567 F.3d 408 (9th Cir. 2009).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/EAC6966EA3FE7C2885257807005C6E66/$file/07-5352-1285040.pdf Maydak v United States], 630 F.3d 166 (D.C. Cir. 2010).<br />
*[http://media.ca11.uscourts.gov/opinions/pub/files/200916154.pdf Speaker v. U.S. Dep’t of Health and Human Serv. Ctr. for Disease Control and Prevention], F.3d 1371 (11th Cir. 2010).<br />
*[https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58 Sieverding v. DOJ], 693 F. Supp. 2d 93 (D.D.C. 2010).<br />
*[http://www.opn.ca6.uscourts.gov/opinions.pdf/11a0098p-06.pdf Shearson v. DHS], 638 F.3d 498 (6th Cir. 2011).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir. 2015).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/57E67EBF550EDDAB8525822C005378F2/$file/16-5045-1716627.pdf Liff v. Office of Inspector Gen. for the U.S. Dep’t of Labor], 881 F.3d 912 (D.C. Cir. 2018).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Fazaga v. FBI], 916 F.3d 1201 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/22/17-17349.pdf Rojas v. FAA], 941 F.3d 392 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/18-15416.pdf Garris v. FBI], 937 F.3d 1284 (9th Cir. 2019).<br />
*[https://law.justia.com/cases/federal/appellate-courts/cadc/17-5117/17-5117-2019-06-21.html In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.], 928 F.3d 42 (D.C. Cir. 2019).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Privacy Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a. Records maintained on individuals]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Privacy_Act&diff=1676Privacy Act2023-08-15T20:51:01Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] (2012), enacted by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 3, 88 Stat. 1897, Dec. 31, 1974; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-89/pdf/STATUTE-89-Pg1057.pdf Pub. L. No. 94-183], § 2(2), 89 Stat. 1057, Dec. 31, 1975; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365], § 2, 96 Stat. 1749, Oct. 25, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1819.pdf Pub. L. No. 97-375], title II, § 201(a), (b), 96 Stat. 1821, Dec. 21, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2467.pdf Pub. L. No. 97-452], §2(a)(1), 96 Stat. 2478, Jan. 12, 1983; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c), 98 Stat. 2211, Oct. 15, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], title I, §107(g), 98 Stat. 2292, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503], §§ 28, 102 Stat. 2507-2514, Oct. 18, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1388.pdf Pub. L. No. 101-508], title VII, §7201(b)(1), 104 Stat. 1388-(3), Nov. 5, 1990; by [https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1466.pdf Pub. L. No. 103-66], title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107 Stat. 611, Aug. 10, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ193/pdf/PLAW-104publ193.pdf Pub. L. No. 104-193], title I, § 110(w), 110 Stat. 2175, Aug. 22, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ226/pdf/PLAW-104publ226.pdf Pub. L. No. 104-226], § 1(b)(3), 110 Stat. 3033, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ316/pdf/PLAW-104publ316.pdf Pub. L. No. 104-316], title I, § 115(g)(2)(b), 110 Stat. 3835, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ34/PLAW-105publ34.pdf Pub. L. No. 105-34], title IX, subtitle C, § 1026(b)(2), 111 Stat. 925, Aug. 5, 1997; by [https://www.govinfo.gov/content/pkg/PLAW-105publ362/pdf/PLAW-105publ362.pdf Pub. L. No. 105-362], title XIII, § 1301(d), 112 Stat.3292, Nov. 10, 1998; by [https://www.govinfo.gov/content/pkg/PLAW-108publ271/pdf/PLAW-108publ271.pdf Pub. L. No. 108-271], 118 Stat. 814, July 7, 2004; by [https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf Pub. L. No. 111-148], Title VI, § 6402(b)(2), 124 Stat. 756, Mar. 23, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203], Title X, § 1082, 124 Stat. 2080, July 21, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-113publ295/pdf/PLAW-113publ295.pdf Pub. L. No. 113-295], Div. B, Title I, § 102(c), 128 Stat. 4062, Dec. 19, 2014.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
==Overview==<br />
The Privacy Act of 1974 represents the Congressional response to concerns about government uses of information collected about private individuals. The Privacy Act gives individuals greater control over the gathering, dissemination, and accuracy of information collected about themselves by agencies. ''Miller v. United States'', 630 F. Supp. 347 (E.D.N.Y. 1986). The main purpose of the Privacy Act is to forbid disclosure unless it is required by the [[Freedom of Information Act]] (FOIA). ''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980). To protect individual privacy, the Privacy Act constrains executive branch recordkeeping, defines the individual’s right to access certain records, limits agency disclosure of records containing an individual’s private information, establishes safeguards to protect records concerning individuals, and provides remedies for agency violation of the Privacy Act’s provisions.<br />
<br />
===Scope===<br />
<br />
The Privacy Act covers records maintained by agencies as defined in FOIA. It applies to Cabinet-level departments, independent regulatory agencies, military departments, and government corporations. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(a)(1)]. It does not apply to the legislative branch, national banks (''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981)), or Amtrak (''Ehm v. National R.R.'' ''Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984), ''cert. denied'', 469 U.S. 982 (1984)). ''See Alexander v. FBI'', 971 F. Supp. 603, 606-07 (D.D.C. 1997) (recognizing that the definition of “agency” under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President’s immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, but, nevertheless rejecting such limitation with regard to “agency” as used in the Privacy Act due to the different purposes that the two statutes serve); ''Shannon v. Gen. Elec. Co.'', 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) (stating there is “no dispute” that General Electric (GE) falls within the definition of “agency” subject to requirements of the Privacy Act where, pursuant to a contract, it operated a Department of Energy-owned lab under the supervision, control, and oversight of the Department and where, by terms of the contract, GE agreed to comply with the Privacy Act).<br />
<br />
A record is a collection or grouping of information about an individual that, for example, may include educational, financial, or biographical information, together with personal identifiers such as names, photos, numbers, or fingerprints. 5 U.S.C. § 552a(a)(4). The Privacy Act does not apply to all government records and documents that may contain an individual’s name or other private information. For example, it does not include the private notes of a supervisor if such notes are not used by the agency to make decisions. ''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989). But such notes may become subject to the Privacy Act if they become part of an agency’s decision. ''Chapman v. NASA'', 682 F.2d 526 (5th Cir. 1982), ''cert. denied'', 469 U.S. 1038 (1984). The Act also does not apply to information in documents obtained from independent sources of information, even though identical information may be in an agency’s system of records. ''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
<br />
The Privacy Act focuses on “systems of records” established, maintained, or controlled by an agency. A “system of records” is a group of any records where individual names or other individual identifiers can be used to retrieve the information. 5 U.S.C. § 552a(a)(5). Agencies may maintain records covered by the Privacy Act only when they are relevant and necessary to accomplish the agency’s purpose. 5 U.S.C. § 552a(e)(1). The Court of Appeals for the District of Columbia Circuit addressed the “system of records” definition in the context of computerized information in ''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996), and noted that “the [Office of Management and Budget] guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person’s name, but the agency must in fact retrieve records in this way in order for a system of records to exist.” ''Id.'' at 1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is retrieved” in the statute’s definition of a system of records and focused on whether the agency “in practice” retrieved information. ''Id.'' at 1459-61.<br />
<br />
===Access to Records===<br />
Where the agency is authorized to keep records covered by the Privacy Act, an individual has a right of access to records concerning him or her. This is a central protection of the Privacy Act for individuals. The individual has a right to:<br />
<br />
*Copy any or all of the record (§ 552a(d)(1));<br />
*Request amendment of the record (§ 552a(d)(2)) and file a concise statement of disagreement if the agency refuses to amend the record that will be provided to all persons to whom the record is disclosed (§ 552a(d)(4)); and<br />
*Request an accounting from the agency on the date, nature, and purpose of each disclosure of the record (§ 552a(c)).<br />
<br />
The individual has an absolute right to access and need not provide any reason for seeking access. ''FTC v. Shaffner'', 626 F.2d 32 (7th Cir. 1980).<br />
<br />
===Agency Requirements=== <br />
For each system of records an agency maintains, it must:<br />
<br />
*Publish in the ''Federal Register'' the name and location of the system; the categories of individuals contained in the system; the routine use of the records; agency policies concerning the records including storage, retrieval, access, retention, and disposal; the person, including title and address, responsible for the system; the method used to notify individuals how to gain access to records about themselves; and the sources or records in the system. Any new use of the system must be noticed for comment 30 days prior to implementing the new use. Exempt systems must also be noticed. ''See, e.g.,'' 5 U.S.C.§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a(b)(3)], (e)(4), and (e)(11);<br />
*Maintain records in the system accurately, completely, and timely to ensure fairness to the individuals (§ 552a(e)(5));<br />
*Establish rules and training for persons designing, developing, operating, or maintaining the system to ensure compliance with the Privacy Act and the agency’s implementing policies (§ 552a(e)(9));<br />
*Establish safeguards for the protection of records (§ 552a(e)(10)); and<br />
*Inform government contractors of their duties under the Privacy Act (§ 552a(m)).<br />
<br />
When the agency collects information that “may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs,” the Privacy Act requires the information to be collected, to the “greatest extent practicable,” directly from the affected individual. 5 U.S.C. § 552a(e)(2). When requesting such information from individuals, the agency must disclose: (1) the authority under which collection is authorized; (2) the principal purposes for which the information is needed; (3) the routine use of the information; and (4) consequences, if any, of not providing the information. 5 U.S.C. § 552a(e)(3).<br />
<br />
The Privacy Act mandates that information maintained in agency records be as relevant and as necessary as possible to accomplish the agency’s purpose. It must also undertake to maintain the information with such accuracy and completeness as is reasonably necessary to assure fairness to the individual. In ''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987), the court sitting en banc held that an agency may satisfy this requirement by supplementing the information an individual considers damaging with the individual’s explanation or disagreement with the accuracy of the information. The court found that the agency made a reasonable effort to determine the accuracy of the information and that an adjudication of the disputed facts was not necessary for the agency’s purposes. The court said that in some cases, fairness may require a record to contain both versions of a disputed fact.<br />
<br />
Agencies are prohibited from maintaining records describing how an individual exercises First Amendment rights, unless such records are authorized by statute or are pertinent to and within the scope of authorized law enforcement activity. 5 U.S.C. § 552a(e)(7). Such records are subject to the Privacy Act even if not kept in “a system of records.” ''Clarkson v. IRS'', 678 F.2d 1368, 1373-77 (11th Cir. 1982), ''cert. denied'', 481 U.S. 1031. ''Cf. Pototsky v. U.S. Dep’t of Navy'', 717 F. Supp. 20 (D. Mass. 1989). Guidelines from the Office of Management and Budget (OMB) call for the broadest reasonable interpretation of the prohibition.<br />
<br />
===Exemptions from Access===<br />
The Privacy Act provides general (§ 552a(j)) and specific (§ 552a(k)) exemptions. These are exemptions allowing an agency to deny access to the record by the individual to whom the record pertains. The two types of exemptions are different in nature and consequences and are discretionary on the agency’s part. To be effective, the agency must first determine that a record or system of records meets the criteria for exemption under the Privacy Act and then publish the exemption as a rule under the [[Administrative Procedure Act]]’s (APA) notice-and-comment provisions. Failure to set out reasons demonstrating that the exemption meets the requirements of the Privacy Act may leave the records subject to the Privacy Act. ''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980). The exemptions do not authorize the agency to use the record in a manner other than the manner originally set out in the ''Federal Register'' establishing the system of records. ''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
A general exemption denies access by an affected individual under virtually all the Privacy Act’s provisions and is available for records maintained by the Central Intelligence Agency or by an agency whose principal functions are criminal law enforcement. The general exemption may not be used to exempt records compiled for a noncriminal or administrative purpose even if they are also a part of a system of records maintained by an agency qualified to assert the exemption. ''Vymetalik v. FBI'', 785 F.2d 1090, 1095 (D.C. Cir. 1986).<br />
<br />
The specific exemptions (§ 552a(k)(1)(7)) are available to any agency if the head of the agency promulgates rules pursuant to the notice-and-comment provisions of the [[Administrative Procedure Act|APA]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim 553]. The specific exemption is from a particular provision of the Privacy Act. The seven exemptions allowed are:<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim FOIA (b)(1) exemptions] (matters to be kept secret in the interest of national defense or foreign policy and properly classified by executive order);<br />
*Investigatory material compiled for law enforcement purposes that does not fall within the general exemption;<br />
*Material maintained to provide protective service to the President or pursuant to 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3056&num=0&edition=prelim § 3056];<br />
*Confidential investigatory records relating to employment or contracts;<br />
*Statistical records required by statute;<br />
*Testing and examination material related to federal employment; and<br />
*Evaluations related to military promotions obtained confidentially.<br />
<br />
An individual may sue to challenge a denial of access to records based on the general or specific exemptions, and the court will determine the substantive and procedural propriety of the agency’s assertion of the exemption. ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
<br />
===Restrictions on Disclosure===<br />
The Privacy Act prohibits disclosure of any record covered by the Privacy Act without the written request or prior written consent of the person whom the record concerns (§ 552a(b)). The restriction on disclosure applies to any person or agency and includes any means of communication—written, oral, electronic, or mechanical [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Responsibilities for the Maintenance of Records About Individuals by Federal Agencies], 40 Fed. Reg. 28948, 28953 (July 9, 1975). Information obtained (or released) through sources independent of agency records is not “disclosure” under the Privacy Act.<br />
<br />
The general rule of nondisclosure is subject to 12 exceptions (§ 552a(b)(1)(12)). They are:<br />
<br />
*internal agency use on a need to know basis;<br />
*proper requests under FOIA;<br />
*routine use;<br />
*Census Bureau activities;<br />
*statistical research where the recipient has given written assurance that records are not individually identifiable;<br />
*National Archives preservation;<br />
*information to Congress;<br />
*information to the Comptroller General in performing Government Accountability Office (GAO) duties;<br />
*showing of compelling circumstances affecting the health or safety of an individual;<br />
*pursuant to court order (subpoenas issued by clerks of courts are not “orders” ''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798, 800 (N.D. Ga. 1978));<br />
*to a consumer reporting agency in accordance with 31 U.S.C. § 3711(f); and<br />
*use by “any governmental jurisdiction . . . for a civil or criminal law enforcement activity” as long as a written request (1) is made by the head of the agency seeking the record, (2) specifies the portion of the record sought, and (3) describes the relevant enforcement activity. ''See Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
“Routine use,” considered generally the most important exception, is defined as “the use of such record for a purpose that is compatible with the purpose for which it was collected” (§ 552a(a)(7)). Each routine use is identified in the ''Federal Register'' notice upon establishment or revision of each system of records (§ 552a(e)(4)(D)). This exception permits nonconsensual intra- or interagency transfer of what is generally described as “house-keeping” information. Because the language is broad, the potential for abuse is considered great, and the courts have strictly required that the use be clearly and specifically identified in the rule adopted by the agency identifying the system of records. ''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989); ''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988); ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979). The Supreme Court has found that the Privacy Act’s provisions restricting disclosure, even while allowing disclosure for “routine uses,” are sufficient to protect persons’ constitutional right to informational privacy, if such a right exists. ''NASA v. Nelson'', 562 U.S. 134, 153-55 (2011).<br />
<br />
===Review, Relief, Remedies===<br />
The Privacy Act provides that each agency shall promulgate rules that establish, among other things, procedures of notice, disclosure, and review of requests (§ 552a(f)). In the event that the rules are not followed or that a dispute persists, there are four civil actions: (1) a challenge for failure to provide access; (2) a challenge for refusal to amend; (3) a damages action for improper maintenance of the content of records; and (4) a damages action for other breaches of the Privacy Act or regulations issued thereunder that adversely affect the individual (§ 552a(g)(1)). The latter two actions require proof of damages and are limited to actual damages. A cause of action for monetary damages requires a showing of an agency’s intentional or willful failure to maintain accurate records and that the violation of the Privacy Act caused the actual damages complained of. ''Molerio v. FBI'', 749 F.2d 815, 826 (D.C. Cir. 1984). Because waivers of sovereign immunity are to be strictly construed, the Supreme Court held that “actual damages” do not include nonpecuniary damages. [https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 566 U.S. 284 (2012). Remedies for failure to grant access or refusal to amend are injunctive.<br />
<br />
An individual bringing a claim under § 552a(g)(1) must demonstrate a causal connection between the alleged violation and the harm suffered but may not use the Privacy Act claim as the forum in which to prove the entitlement the individual claims was improperly denied. ''Gizoni v. Sw. Marine, Inc.'', 909 F.2d 385 (9th Cir. 1990).<br />
<br />
Criminal penalties are established for willful disclosure of records by those who know such disclosure is prohibited, willful maintenance of a system of records without meeting the appropriate notice requirements, and knowing and willful requests for records under false pretenses (§ 552a(i)). Each violation is classified as a misdemeanor, and the violator may be fined not more than $5,000. There have been at least two criminal prosecutions for unlawful disclosure of Privacy Act-protected records. ''See United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997) (defendant found not guilty; prosecution did not prove “beyond a reasonable doubt that defendant ‘willfully disclosed’ protected material”; evidence presented constituted, “at best, gross negligence,” and thus was “insufficient for purposes of prosecution under § 552a(i)(1)”); ''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976) (guilty plea entered). ''See generally In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439, 1441 (D.C. Cir. 1996) (''per curiam'') (case concerning application for reimbursement of attorney fees where independent counsel found no prosecution was warranted under Privacy Act because there was no conclusive evidence of improper disclosure of information). In a case involving the destruction of records, [https://www.cadc.uscourts.gov/internet/opinions.nsf/1E0F642CD84E034985257B3D004E4186/$file/09-5354-1427961.pdf Gerlich v. DOJ], 711 F.3d 161 (D.C. Cir. 2013), the D.C. Circuit allowed a Privacy Act claim to proceed against senior officials at the Department of Justice on the ground that they created records about appellants in the form of annotations to their applications and internet printouts concerning their political affiliations. The court relied in part on a permissive spoliation inference in light of the destruction of appellants’ records, because the senior department officials had a duty to preserve the annotated applications and internet printouts given that department investigation and future litigation were reasonably foreseeable.<br />
<br />
The Privacy Act provides a two-year statute of limitations (§ 552a(g)(5)). The time begins to run when a reasonable person should have known of the alleged violation. ''Rose v. United States'', 905 F.2d 1257, 1259 (9th Cir. 1990); ''Diliberti v. United States'', 817 F.2d 1259, 1262 (7th Cir. 1987).<br />
<br />
===Computer Matching===<br />
The Privacy Act was amended in 1988 by the Computer Matching and Privacy Protection Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503]). OMB issued final guidance implementing the amendment’s provisions on June 19, 1989. [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989)). The amendments added § 552a(o)-(q) to establish procedural safeguards affecting agencies’ use of Privacy Act records when performing computerized matching programs. The amendments require agencies to conclude written agreements specifying terms and safeguards under which matches are to be done. They provide procedures for individuals whose information is contained in the affected records to use to prevent agencies from taking adverse actions unless they have independently verified the results of matching and given the individual advance notice. Oversight is established by requiring ''Federal Register'' notice of matching agreements, by requiring reports to OMB and Congress, and by requiring the establishment of internal “data integrity boards” to oversee and coordinate the agency’s implementation of matching programs.<br />
<br />
===Relationship to the FOIA===<br />
Two provisions relate to FOIA (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]). Section 552a(b)(2) exempts agencies from the requirement of obtaining an individual’s consent to release of information subject to disclosure under FOIA. In 1984, Congress added provisions delineating an individual’s access rights to records exempt from disclosure under FOIA or the Privacy Act. An agency must give an individual access to a record if it is accessible under either act irrespective of whether it might be withheld under the other (§ 552a(t)). This gives maximum access to records by an individual whose personal information is contained therein. An accounting of the number of FOIA releases of Privacy Act information is not required (§ 552a(c)(1)). If released under FOIA, the agency is relieved from ensuring the accuracy, completeness, timeliness, and relevance of the record (§ 552a(e)(6)). If the system of records is made necessary by FOIA, the agency may exempt the system from the Privacy Act (§ 552a(k)(1)).<br />
<br />
===Social Security Numbers===<br />
The Privacy Act restricts use of an individual’s Social Security account number ([https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 7) (not codified as part of 5 U.S.C. § 552a). This provision applies to state and local governments as well as the federal government and makes it unlawful to deny any right, benefit, or privilege based on an individual’s failure to disclose the Social Security account number, unless the disclosure was required by any federal, state, or local system of records in operation before January 1, 1975, or the disclosure is required by federal law. Since enactment, Congress has required disclosure in the Tax Reform Act of 1976 ([http://uscode.house.gov/statutes/pl/94/455.pdf Pub. L. No. 94-455]), the Deficit Reduction Act of 1984 ([http://uscode.house.gov/statutes/pl/109/171.pdf Pub. L. No. 98-369]), and the Debt Collection Act of 1982 ([https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365]). In the Tax Reform Act of 1976, Congress declared it to be U.S. policy to use Social Security account numbers “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law.” Pub. L. No. 94-455, amending 42 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section405&num=0&edition=prelim 405(c)(2)].<br />
<br />
==Oversight==<br />
The Privacy Act requires OMB to develop guidelines and regulations for its implementation and to provide continuing assistance and oversight. The OMB guidelines are entitled to the usual deference accorded the interpretations of the agency charged with administration of a statute. ''Albright v. United States'', 631 F.2d 915, 919 n.5 (D.C. Cir. 1980); ''Quinn v. Stone'', 978 F.2d 126, 133 (3d Cir. 1992). However, a few courts have rejected particular aspects of the OMB Guidelines as inconsistent with the statute. ''See, e.g.'', ''Kassel v. U.S. Dep’t of Veterans Affairs'', No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); [https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614, 627 n.11 (2004) (disagreeing with dissent’s reliance on OMB interpretation of damages provision since the Court does “not find its unelaborated conclusion persuasive”).<br />
<br />
The vast majority of OMB’s Privacy Act guidelines are published in [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (1975). However, these original guidelines have been supplemented in particular subject areas over the years, including:<br />
<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Appendix I to OMB Circular No. A-130], most recently revised at [https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 81 Fed. Reg. 49689] (July 28, 2016)).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act Supplemental Guidance], 40 Fed. Reg. 56741 (Dec. 4,1975) (system of records definition, routine use and intra-agency disclosures, consent and congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to FOIA).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Guidelines on the Relationship of the Debt Collection of 1982 to the Privacy Act of 1974], 48 Fed. Reg. 15556 (Apr. 11, 1983) (relationship to Debt Collection Act).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Guidance on the Privacy Act Implications of “Call Detail” Programs to Manage Employees’ Use of the Government’s Telecommunications Systems], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf 52 Fed. Reg. 12990-93] (Apr. 20, 1987) (“call detail” programs).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (June 19, 1989) (computer matching).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf 56 Fed. Reg. 18599] (proposed Apr. 23, 1991) (computer matching);<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (1996) (“Federal Agency Responsibilities for Maintaining Records About Individuals”).<br />
<br />
Thus, when researching in this area, it may be important to check subsequent supplements.<br />
<br />
In 1998, President Clinton called upon all federal agencies to take further privacy-protection steps within the next year. [https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998). Specifically, the President directed each agency to designate a senior official with responsibility for privacy policy to apply the Principles for Providing and Using Personal Information that were developed through the Information Infrastructure Task Force under the auspices of the Department of Commerce in 1995 and to conduct a series of reviews of agency record systems in order to ensure compliance with Privacy Act requirements. The Privacy Act related reviews, conducted in accordance with instructions issued by OMB, reported results to OMB. The memorandum also provided that OMB issue further guidance on the making of “routine use” disclosures under the Privacy Act.<br />
<br />
Section 208 (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=(title:44%20section:3501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title44-section3501)&f=treesort&edition=prelim&num=0&jumpTo=true § 3501 note]) of the [[E-Government Act of 2002]] requires that OMB issue guidance to agencies on implementing the privacy provisions of the E-Government Act. Under this guidance, agencies are required to conduct privacy impact assessments for electronic information systems and collections, make them publicly available, post privacy policies on agency websites used by the public, translate privacy policies into a standardized machine-readable format, and report annually to OMB on compliance with the E-Government Act.<br />
<br />
In 2002, GAO conducted an extensive review of agency Privacy Act practices, and reported on its findings in June 2003. GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003). <br />
<br />
While most questions concerning the Privacy Act should first be directed to agency Privacy Act officers, important policy or litigation questions, or questions concerning the OMB Guidelines, may be directed to the [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs].<br />
<br />
==Legislative History==<br />
The Privacy Act reflects the merger of seemingly disparate bills from the Senate and the House: S. 3418, introduced by Senator Sam Ervin (D-NC), and H.R. 16373, supported by the Administration. The Senate bill would have granted sweeping powers to a Federal Privacy Board for the oversight of collection, maintenance, and dissemination of individually identifiable information by both the public and private sectors, while the House bill focused on access to and correction of records, data collection, and maintenance standards. The Senate approved its bill on November 21, 1974, after consideration and, on the same day, the House bill was passed by a 353 to 1 vote, after two days of floor debate.<br />
<br />
The bills were not reconciled by the usual conference committee because of the limited time available between the end of Thanksgiving recess and the end of the session. Instead, the respective staffs of the committees studied the differing bills, reported to the committees and, after informal meetings, reached an agreement. The description of the amendments that made the two bills identical (thus avoiding a conference committee) was inserted into the record of both sides, and both houses passed identical bills. Thus, many of the most important provisions of the bill are not explained by committee reports. The only record of the final negotiations leading to the bill actually adopted is a staff memorandum entitled ''Analysis of House and Senate Compromise Amendments to the Federal Privacy Act''; ''see also'' [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S.3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976)).<br />
<br />
The final product included most of the fair information practices defined in the Senate version and the access and correction provisions of the House bill. None of the Senate provisions relating to a Federal Privacy Board was included. However, the Privacy Act provided for two important means of further development and oversight:<br />
<br />
*it instructed OMB to develop guidelines for the implementation of the Privacy Act throughout the executive branch; and<br />
*the Privacy Protection Study Commission was created by the Privacy Act to study the issues raised by the Privacy Act and to recommend further legislation, and it subsequently completed its thorough and informative report, [https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society].<br />
<br />
The bill was signed by President Ford on December 31, 1974 and became effective September 1975.<br />
<br />
===Source Note===<br />
The legislative history of the original Act is exhaustively collected in [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976). <br />
<br />
The Department of Justice’s [https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition Overview of the Privacy Act of 1974] is updated periodically and discusses the extensive case law under the Privacy Act.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*Joint Comm. on Government Operations, [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy], 94th Cong. (1976).<br />
*H.R. Rep. No. 100-802 (1988).<br />
*S. Rep. No. 100-516 (1988).<br />
*''Who Cares About Privacy? Oversight of the Privacy Act of 1974 by the Office of Management and Budget and by the Congress,'' ''H.R. Rep. No. 98-455'', Hearings Before Subcomm. of the H. Comm. on Gov’t Operations, 98th Cong. (1983).<br />
*America’s Healthy Future Act of 2009, [https://www.congress.gov/111/crpt/srpt89/CRPT-111srpt89.pdf S. Rep. No. 111-89] (2009).<br />
*The Restoring American Financial Stability Act of 2010, [https://www.congress.gov/111/crpt/srpt176/CRPT-111srpt176.pdf S. Rep. No. 111-176] (2010).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. 112-689] (2012).<br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998).<br />
*Executive Order 13478, [https://www.govinfo.gov/content/pkg/FR-2008-11-20/pdf/E8-27771.pdf Amendments to Executive Order 9397 Relating to Federal Agency Use of Social Security Numbers], 73 Fed. Reg. 70239 (Nov. 20, 2008).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2020-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-2%2C%20Protected%20Materials%20CLEAN%2012%2028%202020.pdf Protected Materials in Public Rulemaking Dockets]<br />
*2021-6 [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Circular A-108] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act of 1974, Supplementary Guidance], 40 Fed. Reg. 56741 (Dec. 4, 1975).<br />
*''Revised Supplemental Guidance for Conducting Matching Programs'', 47 Fed. Reg. 21656 (May 19, 1982).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Debt Collection Act Guidelines], 48 Fed. Reg. 15556 (Apr. 11, 1983).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (July 9, 1975); supplemented at:<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf 40 Fed. Reg. 56741] (1975).<br />
**49 Fed. Reg. 12338 (1984).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (1989).<br />
*''Management of Federal Information Resources'', Circular A130, 50 Fed. Reg. 52730 (Dec. 24, 1985).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Final Guidance on Privacy Act Implications of “Call Detail” Programs], 52 Fed. Reg. 12290 (Apr. 20, 1987).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Pub. L. No. 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], 56 Fed. Reg. 18599 (Apr. 23, 1991).<br />
*''Proposed Revision of OMB Circular A130'', 57 Fed. Reg. 18296 (Apr. 29, 1992).<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (Feb. 20, 1996).<br />
*M-0105, [https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-05-Guidance-on-Inter-Agency-Sharing-of-Personal-Data-Protecting-Personal-Privacy.pdf Guidance on Inter-Agency Sharing of Personal Data—Protecting Personal Privacy] (2000).<br />
*M-0322, [https://www.whitehouse.gov/wp-content/uploads/2017/11/203-M-03-22-OMB-Guidance-for-Implementing-the-Privacy-Provisions-of-the-E-Government-Act-of-2002-1.pdf Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002] (2003).<br />
*[https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 Revision of OMB Circular No. A-130 “Managing Information as a Strategic Resource”], 81 Fed. Reg. 49689 (July 28, 2016).<br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports on E-Government Act Implementation from 2003-2015]<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/egov_docs/egov_implementation_report_6_17_16.pdf 2015 Annual Report to Congress: E-Government Act Implementation]<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/egov/documents/omb-fy-2016-egov-act-report.pdf 2016 Annual Report to Congress: E-Government Act Implementation]<br />
*M-21-04, [https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act] (2020).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission] (1977).<br />
*Gen. Accounting Office, GAO/PEMD-87-2, [https://www.gao.gov/assets/150/144893.pdf Computer Matching: Assessing its Costs and Benefits] (1986).<br />
*Gen. Accounting Office, GAO/GGD-91-48, [https://www.gao.gov/assets/220/213974.pdf Peer Review: Compliance with the Privacy Act and the Federal Advisory Committee Act] (1991).<br />
*Gen. Accounting Office, GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003).<br />
*[https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf A Citizen’s Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records], Report by the Comm. on Oversight and Gov’t Reform, 112th Cong. (2012).<br />
*Dep’t of Justice, [https://www.justice.gov/opcl/file/793026/download Overview of the Privacy Act of 1974] (2015).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Lillian R. Bevier, [https://core.ac.uk/download/pdf/73966670.pdf Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection], 4 Wm. & Mary Bill Rights J. 455 (1991).<br />
*Babette Boliek, ''Prioritizing Privacy in the Courts and Beyond'', 103 Cornell L. Rev. 1101 (2018).<br />
*Jonathan C. Bond, Note, [http://www.gwlr.org/wp-content/uploads/2012/08/76-5-Bond.pdf Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century], 76 Geo. Wash. L. Rev. 1232 (2008).<br />
*William S. Challis & Ann Cavoukian, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1148&context=jitpl The Case for a U.S. Privacy Commissioner: A Canadian Commissioner’s Perspective], 19 J. Marshall J. Computer & Info. L. 1 (2000).<br />
*Todd Robert Coles, Comment, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1848&context=aulr Does the Privacy Act of 1974 Protect Your Right to Privacy?: An Examination of the Routine Use Exemption], 40 Am. U. L. Rev. 957 (1991).<br />
*John M. Eden, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1140&context=dltr When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID], 2005 Duke L. & Tech. Rev. 20 (2005).<br />
*Haeji Hong, [https://www.uakron.edu/dotAsset/727663.pdf Dismantling the Private Enforcement of the Privacy Act of 1974: Doe v. Chao], 38 Akron L. Rev. 71 (2005).<br />
*Margaret Hu, ''The Ironic Privacy Act'', 96 Wash. U.L. Rev. 1267 (2019).<br />
*Joseph V. Kaplan & John Mahoney, ''Reckless Disregard: Intentional and Willful Violations of the Privacy Act’s Investigatory Requirements'', 44 Fed. Law. No. 4, at 38 (1997).<br />
*Alex Kardon, [http://www.harvard-jlpp.com/wp-content/uploads/2013/10/KardonFinal.pdf Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform], 34 Harv. J. L. & Pub. Pol’y 705 (2011).<br />
*Flavio Komuves, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1243&context=jitpl We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers], 16 J. Marshall J. Computer & Info. L. 529 (1998).<br />
*Frederick Z. Lodge, Note, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2579&context=flr Damages Under the Privacy Act of 1974: Compensation and Deterrence], 52 Fordham L. Rev. 611 (1984).<br />
*Caleb A. Seeley, Note, [https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-91-5-Seeley.pdf Once More unto the Breach: The Constitutional Right to Informational Privacy and the Privacy Act], 91 N.Y.U. L. Rev. 1355 (2016).<br />
*Lisa A. Reilly, ''The Government in the Sunshine Act and the Privacy Act'', 55 Geo. Wash. L. Rev. 955 (1987).<br />
*Nicole M. Quallen, [https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4408&context=nclr Damages under the Privacy Act: Is Emotional Harm Actual], 88 N.C. L. Rev. 334 (2009).<br />
*Paul M. Schwartz, [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2572&context=facpubs Privacy and Participation: Personal Information and Public Sector Regulation in the United States], 80 Iowa L. Rev. 553 (1995).<br />
*Daniel Solove, [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2085&context=faculty_publications Identity Theft, Privacy, and the Architecture of Vulnerability], 54 Hastings L.J. 1227 (2003).<br />
*Julianne M. Sullivan, Comment, [https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=cwlr Will the Privacy Act of 1974 Still Hold Up in 2004? How Advancing Technology Has Created a Need for a Change in the “System of Records” Analysis], 39 Cal. W. L. Rev. 395 (2003).<br />
*Thomas M. Susman, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=2035&context=lawreview Privacy Act and the Freedom of Information Act: Conflict and Resolution], 21 J. Marshall L. Rev. 703 (1988).<br />
*Ari Ezra Waldman, ''Privacy Law's False Promise'', 97 Wash. U.L. Rev. 773 (2020).<br />
</div><br />
<br />
===Selected Cases Not Included in the Text===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798 (N.D. Ga. 1978).<br />
*''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
*''Albright v. United States'', 631 F.2d 915 (D.C. Cir. 1980).<br />
*''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980).<br />
*''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980).<br />
*''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981).<br />
*''Fitzpatrick v. United States'', 665 F.2d 327 (11th Cir. 1982).<br />
*''Clarkson v. IRS'', 678 F.2d 1368 (11th Cir. 1982).<br />
*''Johnson v. U.S. Dep’t of the Treasury'', 700 F.2d 971 (5th Cir. 1983).<br />
*''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
*''Molerio v. FBI'', 749 F.2d 815 (D.C. Cir. 1984).<br />
*''Elm v. Nat’l R.R. Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984).<br />
*''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
*''Vymetalik v. FBI'', 785 F.2d 1090 (D.C. Cir. 1986).<br />
*''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987).<br />
*''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988).<br />
*''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989).<br />
*''Pototsky v. U.S. Dep’t of the Navy'', 717 F. Supp. 20 (D. Mass. 1989).<br />
*''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989).<br />
*''Quinn v. Stone'', 978 F.2d 126, 133 (3rd Cir. 1992).<br />
*''Kassel v.'' U.S. ''Dep’t of Veterans Affairs'', No. 87-217-S (D.N.H. Mar. 30, 1992).<br />
*''United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997).<br />
*''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976).<br />
*''In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439 (D.C. Cir. 1996).<br />
*''Alexander v. FBI'', 971 F. Supp. 603 (D.D.C. 1997).<br />
*''Shannon v. General Elec. Co.'', 812 F. Supp. 308 (N.D.N.Y. 1993).<br />
*''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996).<br />
*[http://www.vawd.uscourts.gov/OPINIONS/WILSON/600CV0005(3).PDF Falwell v. Exec. Office of the President], 113 F. Supp. 2d 967 (W.D. Va. 2000).<br />
*''Dale v. Exec. Office of the President'', 164 F. Supp. 2d 22 (D.D.C. 2001).<br />
*''Trulock v. DOJ'', No. 00-2234, slip op. (D.D.C. Sept. 18, 2001).<br />
*''Tripp v. Exec. Office of the President'', 200 F.R.D. 140 (D.D.C. 2001).<br />
*''Broaddrick v. Exec. Office of the President'', 139 F. Supp. 2d 55 (D.D.C. 2001).<br />
*''Flowers v. Exec. Office of the President'', 142 F. Supp. 2d 38 (D.D.C. 2001).<br />
*''Jones v. Exec. Office of the President'', 167 F. Supp. 2d 10 (D.D.C. 2001).<br />
*''Sculimbrene v. Reno'', 158 F. Supp. 2d 26 (D.D.C. 2001).<br />
*''Schwarz v. U.S. Dep’t of the Treasury'', 131 F. Supp. 2d 142 (D.D.C. 2000).<br />
*''Cobell v. Norton'', 157 F. Supp. 2d 82 (D.D.C. 2001).<br />
*''Cummings v. U.S. Dep’t of the Navy'', 279 F.3d 1051 (D.C. Cir. 2002).<br />
*''McCready v. Principi'', 297 F. Supp. 2d 178 (D.D.C. 2003).<br />
*''Chang v. U.S. Dep’t of the Navy'', 314 F. Supp.2d 35 (D.D.C. 2004).<br />
*''Maydak v. United States'', 363 F.3d 512 (D.C. Cir. 2004).<br />
*[https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614 (2004).<br />
*''NASA v. Nelson'', 562 U.S. 134 (2011).<br />
*[https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 132 S. Ct. 1441 (2012).<br />
*''Logan v. U.S. Dep’t of Veterans Affairs'', 357 F. Supp. 2d 149 (D.D.C. 2004).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2006/03/13/0335877.pdf Oja v. U.S. Army Corps of Engineers], 440 F.3d 1122 (9th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/013337AFDE8A8304852574400044F8CC/$file/04-5425a.pdf McCready v. Nicholson], 465 F.3d 1 (D.C. Cir. 2006).<br />
*[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2006/D01-30/C:04-3888:J:_:aut:T:op:N:0:S:0 Bassiouni v. FBI], 436 F.3d 712 (7th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/E94B1B7BAE4935098525744000455619/$file/06-5085b.pdf Sussman v. U.S. Marshals Serv.], 494 F.3d 1106 (D.C. Cir 2007).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/9F94563D7D135A85852578000052F342/$file/07-5257-1132633.pdf Wilson v. Libby], 535 F.3d 697 (D.C. Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2008/05/02/0615191.pdf Lane v. U.S. Dep’t of the Interior], 523 F.3d 1128 (9th Cir. 2008).<br />
*[http://media.ca8.uscourts.gov/opndir/08/03/071576P.pdf Doe v. U.S. Dep’t of Veterans Affairs], 519 F.3d 456 (8th Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2009/05/21/06-15967.pdf Rouse v. U.S. Dep’t of State], 567 F.3d 408 (9th Cir. 2009).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/EAC6966EA3FE7C2885257807005C6E66/$file/07-5352-1285040.pdf Maydak v United States], 630 F.3d 166 (D.C. Cir. 2010).<br />
*[http://media.ca11.uscourts.gov/opinions/pub/files/200916154.pdf Speaker v. U.S. Dep’t of Health and Human Serv. Ctr. for Disease Control and Prevention], F.3d 1371 (11th Cir. 2010).<br />
*[https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58 Sieverding v. DOJ], 693 F. Supp. 2d 93 (D.D.C. 2010).<br />
*[http://www.opn.ca6.uscourts.gov/opinions.pdf/11a0098p-06.pdf Shearson v. DHS], 638 F.3d 498 (6th Cir. 2011).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir. 2015).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/57E67EBF550EDDAB8525822C005378F2/$file/16-5045-1716627.pdf Liff v. Office of Inspector Gen. for the U.S. Dep’t of Labor], 881 F.3d 912 (D.C. Cir. 2018).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Fazaga v. FBI], 916 F.3d 1201 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/22/17-17349.pdf Rojas v. FAA], 941 F.3d 392 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/18-15416.pdf Garris v. FBI], 937 F.3d 1284 (9th Cir. 2019).<br />
*[https://law.justia.com/cases/federal/appellate-courts/cadc/17-5117/17-5117-2019-06-21.html In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.], 928 F.3d 42 (D.C. Cir. 2019).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Privacy Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a. Records maintained on individuals]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Privacy_Act&diff=1675Privacy Act2023-08-15T20:46:43Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] (2012), enacted by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 3, 88 Stat. 1897, Dec. 31, 1974; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-89/pdf/STATUTE-89-Pg1057.pdf Pub. L. No. 94-183], § 2(2), 89 Stat. 1057, Dec. 31, 1975; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365], § 2, 96 Stat. 1749, Oct. 25, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1819.pdf Pub. L. No. 97-375], title II, § 201(a), (b), 96 Stat. 1821, Dec. 21, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2467.pdf Pub. L. No. 97-452], §2(a)(1), 96 Stat. 2478, Jan. 12, 1983; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c), 98 Stat. 2211, Oct. 15, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], title I, §107(g), 98 Stat. 2292, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503], §§ 28, 102 Stat. 2507-2514, Oct. 18, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1388.pdf Pub. L. No. 101-508], title VII, §7201(b)(1), 104 Stat. 1388-(3), Nov. 5, 1990; by [https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1466.pdf Pub. L. No. 103-66], title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107 Stat. 611, Aug. 10, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ193/pdf/PLAW-104publ193.pdf Pub. L. No. 104-193], title I, § 110(w), 110 Stat. 2175, Aug. 22, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ226/pdf/PLAW-104publ226.pdf Pub. L. No. 104-226], § 1(b)(3), 110 Stat. 3033, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ316/pdf/PLAW-104publ316.pdf Pub. L. No. 104-316], title I, § 115(g)(2)(b), 110 Stat. 3835, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ34/PLAW-105publ34.pdf Pub. L. No. 105-34], title IX, subtitle C, § 1026(b)(2), 111 Stat. 925, Aug. 5, 1997; by [https://www.govinfo.gov/content/pkg/PLAW-105publ362/pdf/PLAW-105publ362.pdf Pub. L. No. 105-362], title XIII, § 1301(d), 112 Stat.3292, Nov. 10, 1998; by [https://www.govinfo.gov/content/pkg/PLAW-108publ271/pdf/PLAW-108publ271.pdf Pub. L. No. 108-271], 118 Stat. 814, July 7, 2004; by [https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf Pub. L. No. 111-148], Title VI, § 6402(b)(2), 124 Stat. 756, Mar. 23, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203], Title X, § 1082, 124 Stat. 2080, July 21, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-113publ295/pdf/PLAW-113publ295.pdf Pub. L. No. 113-295], Div. B, Title I, § 102(c), 128 Stat. 4062, Dec. 19, 2014.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
==Overview==<br />
The Privacy Act of 1974 represents the Congressional response to concerns about government uses of information collected about private individuals. The Privacy Act gives individuals greater control over the gathering, dissemination, and accuracy of information collected about themselves by agencies. ''Miller v. United States'', 630 F. Supp. 347 (E.D.N.Y. 1986). The main purpose of the Privacy Act is to forbid disclosure unless it is required by the [[Freedom of Information Act]] (FOIA). ''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980). To protect individual privacy, the Privacy Act constrains executive branch recordkeeping, defines the individual’s right to access certain records, limits agency disclosure of records containing an individual’s private information, establishes safeguards to protect records concerning individuals, and provides remedies for agency violation of the Privacy Act’s provisions.<br />
<br />
===Scope===<br />
<br />
The Privacy Act covers records maintained by agencies as defined in FOIA. It applies to Cabinet-level departments, independent regulatory agencies, military departments, and government corporations. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(a)(1)]. It does not apply to the legislative branch, national banks (''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981)), or Amtrak (''Ehm v. National R.R.'' ''Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984), ''cert. denied'', 469 U.S. 982 (1984)). ''See Alexander v. FBI'', 971 F. Supp. 603, 606-07 (D.D.C. 1997) (recognizing that the definition of “agency” under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President’s immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, but, nevertheless rejecting such limitation with regard to “agency” as used in the Privacy Act due to the different purposes that the two statutes serve); ''Shannon v. Gen. Elec. Co.'', 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) (stating there is “no dispute” that General Electric (GE) falls within the definition of “agency” subject to requirements of the Privacy Act where, pursuant to a contract, it operated a Department of Energy-owned lab under the supervision, control, and oversight of the Department and where, by terms of the contract, GE agreed to comply with the Privacy Act).<br />
<br />
A record is a collection or grouping of information about an individual that, for example, may include educational, financial, or biographical information, together with personal identifiers such as names, photos, numbers, or fingerprints. 5 U.S.C. § 552a(a)(4). The Privacy Act does not apply to all government records and documents that may contain an individual’s name or other private information. For example, it does not include the private notes of a supervisor if such notes are not used by the agency to make decisions. ''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989). But such notes may become subject to the Privacy Act if they become part of an agency’s decision. ''Chapman v. NASA'', 682 F.2d 526 (5th Cir. 1982), ''cert. denied'', 469 U.S. 1038 (1984). The Act also does not apply to information in documents obtained from independent sources of information, even though identical information may be in an agency’s system of records. ''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
<br />
The Privacy Act focuses on “systems of records” established, maintained, or controlled by an agency. A “system of records” is a group of any records where individual names or other individual identifiers can be used to retrieve the information. 5 U.S.C. § 552a(a)(5). Agencies may maintain records covered by the Privacy Act only when they are relevant and necessary to accomplish the agency’s purpose. 5 U.S.C. § 552a(e)(1). The Court of Appeals for the District of Columbia Circuit addressed the “system of records” definition in the context of computerized information in ''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996), and noted that “the [Office of Management and Budget] guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person’s name, but the agency must in fact retrieve records in this way in order for a system of records to exist.” ''Id.'' at 1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is retrieved” in the statute’s definition of a system of records and focused on whether the agency “in practice” retrieved information. ''Id.'' at 1459-61.<br />
<br />
===Access to Records===<br />
Where the agency is authorized to keep records covered by the Privacy Act, an individual has a right of access to records concerning him or her. This is a central protection of the Privacy Act for individuals. The individual has a right to:<br />
<br />
*Copy any or all of the record (§ 552a(d)(1));<br />
*Request amendment of the record (§ 552a(d)(2)) and file a concise statement of disagreement if the agency refuses to amend the record that will be provided to all persons to whom the record is disclosed (§ 552a(d)(4)); and<br />
*Request an accounting from the agency on the date, nature, and purpose of each disclosure of the record (§ 552a(c)).<br />
<br />
The individual has an absolute right to access and need not provide any reason for seeking access. ''FTC v. Shaffner'', 626 F.2d 32 (7th Cir. 1980).<br />
<br />
===Agency Requirements=== <br />
For each system of records an agency maintains, it must:<br />
<br />
*Publish in the ''Federal Register'' the name and location of the system; the categories of individuals contained in the system; the routine use of the records; agency policies concerning the records including storage, retrieval, access, retention, and disposal; the person, including title and address, responsible for the system; the method used to notify individuals how to gain access to records about themselves; and the sources or records in the system. Any new use of the system must be noticed for comment 30 days prior to implementing the new use. Exempt systems must also be noticed. ''See, e.g.,'' 5 U.S.C.§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a(b)(3)], (e)(4), and (e)(11);<br />
*Maintain records in the system accurately, completely, and timely to ensure fairness to the individuals (§ 552a(e)(5));<br />
*Establish rules and training for persons designing, developing, operating, or maintaining the system to ensure compliance with the Privacy Act and the agency’s implementing policies (§ 552a(e)(9));<br />
*Establish safeguards for the protection of records (§ 552a(e)(10)); and<br />
*Inform government contractors of their duties under the Privacy Act (§ 552a(m)).<br />
<br />
When the agency collects information that “may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs,” the Privacy Act requires the information to be collected, to the “greatest extent practicable,” directly from the affected individual. 5 U.S.C. § 552a(e)(2). When requesting such information from individuals, the agency must disclose: (1) the authority under which collection is authorized; (2) the principal purposes for which the information is needed; (3) the routine use of the information; and (4) consequences, if any, of not providing the information. 5 U.S.C. § 552a(e)(3).<br />
<br />
The Privacy Act mandates that information maintained in agency records be as relevant and as necessary as possible to accomplish the agency’s purpose. It must also undertake to maintain the information with such accuracy and completeness as is reasonably necessary to assure fairness to the individual. In ''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987), the court sitting en banc held that an agency may satisfy this requirement by supplementing the information an individual considers damaging with the individual’s explanation or disagreement with the accuracy of the information. The court found that the agency made a reasonable effort to determine the accuracy of the information and that an adjudication of the disputed facts was not necessary for the agency’s purposes. The court said that in some cases, fairness may require a record to contain both versions of a disputed fact.<br />
<br />
Agencies are prohibited from maintaining records describing how an individual exercises First Amendment rights, unless such records are authorized by statute or are pertinent to and within the scope of authorized law enforcement activity. 5 U.S.C. § 552a(e)(7). Such records are subject to the Privacy Act even if not kept in “a system of records.” ''Clarkson v. IRS'', 678 F.2d 1368, 1373-77 (11th Cir. 1982), ''cert. denied'', 481 U.S. 1031. ''Cf. Pototsky v. U.S. Dep’t of Navy'', 717 F. Supp. 20 (D. Mass. 1989). Guidelines from the Office of Management and Budget (OMB) call for the broadest reasonable interpretation of the prohibition.<br />
<br />
===Exemptions from Access===<br />
The Privacy Act provides general (§ 552a(j)) and specific (§ 552a(k)) exemptions. These are exemptions allowing an agency to deny access to the record by the individual to whom the record pertains. The two types of exemptions are different in nature and consequences and are discretionary on the agency’s part. To be effective, the agency must first determine that a record or system of records meets the criteria for exemption under the Privacy Act and then publish the exemption as a rule under the [[Administrative Procedure Act]]’s (APA) notice-and-comment provisions. Failure to set out reasons demonstrating that the exemption meets the requirements of the Privacy Act may leave the records subject to the Privacy Act. ''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980). The exemptions do not authorize the agency to use the record in a manner other than the manner originally set out in the ''Federal Register'' establishing the system of records. ''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
A general exemption denies access by an affected individual under virtually all the Privacy Act’s provisions and is available for records maintained by the Central Intelligence Agency or by an agency whose principal functions are criminal law enforcement. The general exemption may not be used to exempt records compiled for a noncriminal or administrative purpose even if they are also a part of a system of records maintained by an agency qualified to assert the exemption. ''Vymetalik v. FBI'', 785 F.2d 1090, 1095 (D.C. Cir. 1986).<br />
<br />
The specific exemptions (§ 552a(k)(1)(7)) are available to any agency if the head of the agency promulgates rules pursuant to the notice-and-comment provisions of the [[Administrative Procedure Act|APA]] (5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim 553]). The specific exemption is from a particular provision of the Privacy Act. The seven exemptions allowed are:<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim FOIA (b)(1) exemptions] (matters to be kept secret in the interest of national defense or foreign policy and properly classified by executive order);<br />
*investigatory material compiled for law enforcement purposes that does not fall within the general exemption;<br />
*material maintained to provide protective service to the President or pursuant to 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3056&num=0&edition=prelim § 3056];<br />
*confidential investigatory records relating to employment or contracts;<br />
*statistical records required by statute;<br />
*testing and examination material related to federal employment; and<br />
*evaluations related to military promotions obtained confidentially.<br />
<br />
An individual may sue to challenge a denial of access to records based on the general or specific exemptions, and the court will determine the substantive and procedural propriety of the agency’s assertion of the exemption. ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
<br />
===Restrictions on Disclosure===<br />
The Privacy Act prohibits disclosure of any record covered by the Privacy Act without the written request or prior written consent of the person whom the record concerns (§ 552a(b)). The restriction on disclosure applies to any person or agency and includes any means of communication—written, oral, electronic, or mechanical [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Responsibilities for the Maintenance of Records About Individuals by Federal Agencies], 40 Fed. Reg. 28948, 28953 (July 9, 1975). Information obtained (or released) through sources independent of agency records is not “disclosure” under the Privacy Act.<br />
<br />
The general rule of nondisclosure is subject to 12 exceptions (§ 552a(b)(1)(12)). They are:<br />
<br />
*internal agency use on a need to know basis;<br />
*proper requests under FOIA;<br />
*routine use;<br />
*Census Bureau activities;<br />
*statistical research where the recipient has given written assurance that records are not individually identifiable;<br />
*National Archives preservation;<br />
*information to Congress;<br />
*information to the Comptroller General in performing Government Accountability Office (GAO) duties;<br />
*showing of compelling circumstances affecting the health or safety of an individual;<br />
*pursuant to court order (subpoenas issued by clerks of courts are not “orders” ''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798, 800 (N.D. Ga. 1978));<br />
*to a consumer reporting agency in accordance with 31 U.S.C. § 3711(f); and<br />
*use by “any governmental jurisdiction . . . for a civil or criminal law enforcement activity” as long as a written request (1) is made by the head of the agency seeking the record, (2) specifies the portion of the record sought, and (3) describes the relevant enforcement activity. ''See Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
“Routine use,” considered generally the most important exception, is defined as “the use of such record for a purpose that is compatible with the purpose for which it was collected” (§ 552a(a)(7)). Each routine use is identified in the ''Federal Register'' notice upon establishment or revision of each system of records (§ 552a(e)(4)(D)). This exception permits nonconsensual intra- or interagency transfer of what is generally described as “house-keeping” information. Because the language is broad, the potential for abuse is considered great, and the courts have strictly required that the use be clearly and specifically identified in the rule adopted by the agency identifying the system of records. ''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989); ''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988); ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979). The Supreme Court has found that the Privacy Act’s provisions restricting disclosure, even while allowing disclosure for “routine uses,” are sufficient to protect persons’ constitutional right to informational privacy, if such a right exists. ''NASA v. Nelson'', 562 U.S. 134, 153-55 (2011).<br />
<br />
===Review, Relief, Remedies===<br />
The Privacy Act provides that each agency shall promulgate rules that establish, among other things, procedures of notice, disclosure, and review of requests (§ 552a(f)). In the event that the rules are not followed or that a dispute persists, there are four civil actions: (1) a challenge for failure to provide access; (2) a challenge for refusal to amend; (3) a damages action for improper maintenance of the content of records; and (4) a damages action for other breaches of the Privacy Act or regulations issued thereunder that adversely affect the individual (§ 552a(g)(1)). The latter two actions require proof of damages and are limited to actual damages. A cause of action for monetary damages requires a showing of an agency’s intentional or willful failure to maintain accurate records and that the violation of the Privacy Act caused the actual damages complained of. ''Molerio v. FBI'', 749 F.2d 815, 826 (D.C. Cir. 1984). Because waivers of sovereign immunity are to be strictly construed, the Supreme Court held that “actual damages” do not include nonpecuniary damages. [https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 566 U.S. 284 (2012). Remedies for failure to grant access or refusal to amend are injunctive.<br />
<br />
An individual bringing a claim under § 552a(g)(1) must demonstrate a causal connection between the alleged violation and the harm suffered but may not use the Privacy Act claim as the forum in which to prove the entitlement the individual claims was improperly denied. ''Gizoni v. Sw. Marine, Inc.'', 909 F.2d 385 (9th Cir. 1990).<br />
<br />
Criminal penalties are established for willful disclosure of records by those who know such disclosure is prohibited, willful maintenance of a system of records without meeting the appropriate notice requirements, and knowing and willful requests for records under false pretenses (§ 552a(i)). Each violation is classified as a misdemeanor, and the violator may be fined not more than $5,000. There have been at least two criminal prosecutions for unlawful disclosure of Privacy Act-protected records. ''See United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997) (defendant found not guilty; prosecution did not prove “beyond a reasonable doubt that defendant ‘willfully disclosed’ protected material”; evidence presented constituted, “at best, gross negligence,” and thus was “insufficient for purposes of prosecution under § 552a(i)(1)”); ''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976) (guilty plea entered). ''See generally In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439, 1441 (D.C. Cir. 1996) (''per curiam'') (case concerning application for reimbursement of attorney fees where independent counsel found no prosecution was warranted under Privacy Act because there was no conclusive evidence of improper disclosure of information). In a case involving the destruction of records, [https://www.cadc.uscourts.gov/internet/opinions.nsf/1E0F642CD84E034985257B3D004E4186/$file/09-5354-1427961.pdf Gerlich v. DOJ], 711 F.3d 161 (D.C. Cir. 2013), the D.C. Circuit allowed a Privacy Act claim to proceed against senior officials at the Department of Justice on the ground that they created records about appellants in the form of annotations to their applications and internet printouts concerning their political affiliations. The court relied in part on a permissive spoliation inference in light of the destruction of appellants’ records, because the senior department officials had a duty to preserve the annotated applications and internet printouts given that department investigation and future litigation were reasonably foreseeable.<br />
<br />
The Privacy Act provides a two-year statute of limitations (§ 552a(g)(5)). The time begins to run when a reasonable person should have known of the alleged violation. ''Rose v. United States'', 905 F.2d 1257, 1259 (9th Cir. 1990); ''Diliberti v. United States'', 817 F.2d 1259, 1262 (7th Cir. 1987).<br />
<br />
===Computer Matching===<br />
The Privacy Act was amended in 1988 by the Computer Matching and Privacy Protection Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503]). OMB issued final guidance implementing the amendment’s provisions on June 19, 1989. [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989)). The amendments added § 552a(o)-(q) to establish procedural safeguards affecting agencies’ use of Privacy Act records when performing computerized matching programs. The amendments require agencies to conclude written agreements specifying terms and safeguards under which matches are to be done. They provide procedures for individuals whose information is contained in the affected records to use to prevent agencies from taking adverse actions unless they have independently verified the results of matching and given the individual advance notice. Oversight is established by requiring ''Federal Register'' notice of matching agreements, by requiring reports to OMB and Congress, and by requiring the establishment of internal “data integrity boards” to oversee and coordinate the agency’s implementation of matching programs.<br />
<br />
===Relationship to the FOIA===<br />
Two provisions relate to FOIA (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]). Section 552a(b)(2) exempts agencies from the requirement of obtaining an individual’s consent to release of information subject to disclosure under FOIA. In 1984, Congress added provisions delineating an individual’s access rights to records exempt from disclosure under FOIA or the Privacy Act. An agency must give an individual access to a record if it is accessible under either act irrespective of whether it might be withheld under the other (§ 552a(t)). This gives maximum access to records by an individual whose personal information is contained therein. An accounting of the number of FOIA releases of Privacy Act information is not required (§ 552a(c)(1)). If released under FOIA, the agency is relieved from ensuring the accuracy, completeness, timeliness, and relevance of the record (§ 552a(e)(6)). If the system of records is made necessary by FOIA, the agency may exempt the system from the Privacy Act (§ 552a(k)(1)).<br />
<br />
===Social Security Numbers===<br />
The Privacy Act restricts use of an individual’s Social Security account number ([https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 7) (not codified as part of 5 U.S.C. § 552a). This provision applies to state and local governments as well as the federal government and makes it unlawful to deny any right, benefit, or privilege based on an individual’s failure to disclose the Social Security account number, unless the disclosure was required by any federal, state, or local system of records in operation before January 1, 1975, or the disclosure is required by federal law. Since enactment, Congress has required disclosure in the Tax Reform Act of 1976 ([http://uscode.house.gov/statutes/pl/94/455.pdf Pub. L. No. 94-455]), the Deficit Reduction Act of 1984 ([http://uscode.house.gov/statutes/pl/109/171.pdf Pub. L. No. 98-369]), and the Debt Collection Act of 1982 ([https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365]). In the Tax Reform Act of 1976, Congress declared it to be U.S. policy to use Social Security account numbers “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law.” Pub. L. No. 94-455, amending 42 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section405&num=0&edition=prelim 405(c)(2)].<br />
<br />
==Oversight==<br />
The Privacy Act requires OMB to develop guidelines and regulations for its implementation and to provide continuing assistance and oversight. The OMB guidelines are entitled to the usual deference accorded the interpretations of the agency charged with administration of a statute. ''Albright v. United States'', 631 F.2d 915, 919 n.5 (D.C. Cir. 1980); ''Quinn v. Stone'', 978 F.2d 126, 133 (3d Cir. 1992). However, a few courts have rejected particular aspects of the OMB Guidelines as inconsistent with the statute. ''See, e.g.'', ''Kassel v. U.S. Dep’t of Veterans Affairs'', No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); [https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614, 627 n.11 (2004) (disagreeing with dissent’s reliance on OMB interpretation of damages provision since the Court does “not find its unelaborated conclusion persuasive”).<br />
<br />
The vast majority of OMB’s Privacy Act guidelines are published in [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (1975). However, these original guidelines have been supplemented in particular subject areas over the years, including:<br />
<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Appendix I to OMB Circular No. A-130], most recently revised at [https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 81 Fed. Reg. 49689] (July 28, 2016)).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act Supplemental Guidance], 40 Fed. Reg. 56741 (Dec. 4,1975) (system of records definition, routine use and intra-agency disclosures, consent and congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to FOIA).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Guidelines on the Relationship of the Debt Collection of 1982 to the Privacy Act of 1974], 48 Fed. Reg. 15556 (Apr. 11, 1983) (relationship to Debt Collection Act).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Guidance on the Privacy Act Implications of “Call Detail” Programs to Manage Employees’ Use of the Government’s Telecommunications Systems], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf 52 Fed. Reg. 12990-93] (Apr. 20, 1987) (“call detail” programs).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (June 19, 1989) (computer matching).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf 56 Fed. Reg. 18599] (proposed Apr. 23, 1991) (computer matching);<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (1996) (“Federal Agency Responsibilities for Maintaining Records About Individuals”).<br />
<br />
Thus, when researching in this area, it may be important to check subsequent supplements.<br />
<br />
In 1998, President Clinton called upon all federal agencies to take further privacy-protection steps within the next year. [https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998). Specifically, the President directed each agency to designate a senior official with responsibility for privacy policy to apply the Principles for Providing and Using Personal Information that were developed through the Information Infrastructure Task Force under the auspices of the Department of Commerce in 1995 and to conduct a series of reviews of agency record systems in order to ensure compliance with Privacy Act requirements. The Privacy Act related reviews, conducted in accordance with instructions issued by OMB, reported results to OMB. The memorandum also provided that OMB issue further guidance on the making of “routine use” disclosures under the Privacy Act.<br />
<br />
Section 208 (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=(title:44%20section:3501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title44-section3501)&f=treesort&edition=prelim&num=0&jumpTo=true § 3501 note]) of the [[E-Government Act of 2002]] requires that OMB issue guidance to agencies on implementing the privacy provisions of the E-Government Act. Under this guidance, agencies are required to conduct privacy impact assessments for electronic information systems and collections, make them publicly available, post privacy policies on agency websites used by the public, translate privacy policies into a standardized machine-readable format, and report annually to OMB on compliance with the E-Government Act.<br />
<br />
In 2002, GAO conducted an extensive review of agency Privacy Act practices, and reported on its findings in June 2003. GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003). <br />
<br />
While most questions concerning the Privacy Act should first be directed to agency Privacy Act officers, important policy or litigation questions, or questions concerning the OMB Guidelines, may be directed to the [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs].<br />
<br />
==Legislative History==<br />
The Privacy Act reflects the merger of seemingly disparate bills from the Senate and the House: S. 3418, introduced by Senator Sam Ervin (D-NC), and H.R. 16373, supported by the Administration. The Senate bill would have granted sweeping powers to a Federal Privacy Board for the oversight of collection, maintenance, and dissemination of individually identifiable information by both the public and private sectors, while the House bill focused on access to and correction of records, data collection, and maintenance standards. The Senate approved its bill on November 21, 1974, after consideration and, on the same day, the House bill was passed by a 353 to 1 vote, after two days of floor debate.<br />
<br />
The bills were not reconciled by the usual conference committee because of the limited time available between the end of Thanksgiving recess and the end of the session. Instead, the respective staffs of the committees studied the differing bills, reported to the committees and, after informal meetings, reached an agreement. The description of the amendments that made the two bills identical (thus avoiding a conference committee) was inserted into the record of both sides, and both houses passed identical bills. Thus, many of the most important provisions of the bill are not explained by committee reports. The only record of the final negotiations leading to the bill actually adopted is a staff memorandum entitled ''Analysis of House and Senate Compromise Amendments to the Federal Privacy Act''; ''see also'' [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S.3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976)).<br />
<br />
The final product included most of the fair information practices defined in the Senate version and the access and correction provisions of the House bill. None of the Senate provisions relating to a Federal Privacy Board was included. However, the Privacy Act provided for two important means of further development and oversight:<br />
<br />
*it instructed OMB to develop guidelines for the implementation of the Privacy Act throughout the executive branch; and<br />
*the Privacy Protection Study Commission was created by the Privacy Act to study the issues raised by the Privacy Act and to recommend further legislation, and it subsequently completed its thorough and informative report, [https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society].<br />
<br />
The bill was signed by President Ford on December 31, 1974 and became effective September 1975.<br />
<br />
===Source Note===<br />
The legislative history of the original Act is exhaustively collected in [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976). <br />
<br />
The Department of Justice’s [https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition Overview of the Privacy Act of 1974] is updated periodically and discusses the extensive case law under the Privacy Act.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*Joint Comm. on Government Operations, [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy], 94th Cong. (1976).<br />
*H.R. Rep. No. 100-802 (1988).<br />
*S. Rep. No. 100-516 (1988).<br />
*''Who Cares About Privacy? Oversight of the Privacy Act of 1974 by the Office of Management and Budget and by the Congress,'' ''H.R. Rep. No. 98-455'', Hearings Before Subcomm. of the H. Comm. on Gov’t Operations, 98th Cong. (1983).<br />
*America’s Healthy Future Act of 2009, [https://www.congress.gov/111/crpt/srpt89/CRPT-111srpt89.pdf S. Rep. No. 111-89] (2009).<br />
*The Restoring American Financial Stability Act of 2010, [https://www.congress.gov/111/crpt/srpt176/CRPT-111srpt176.pdf S. Rep. No. 111-176] (2010).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. 112-689] (2012).<br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998).<br />
*Executive Order 13478, [https://www.govinfo.gov/content/pkg/FR-2008-11-20/pdf/E8-27771.pdf Amendments to Executive Order 9397 Relating to Federal Agency Use of Social Security Numbers], 73 Fed. Reg. 70239 (Nov. 20, 2008).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2020-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-2%2C%20Protected%20Materials%20CLEAN%2012%2028%202020.pdf Protected Materials in Public Rulemaking Dockets]<br />
*2021-6 [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Circular A-108] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act of 1974, Supplementary Guidance], 40 Fed. Reg. 56741 (Dec. 4, 1975).<br />
*''Revised Supplemental Guidance for Conducting Matching Programs'', 47 Fed. Reg. 21656 (May 19, 1982).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Debt Collection Act Guidelines], 48 Fed. Reg. 15556 (Apr. 11, 1983).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (July 9, 1975); supplemented at:<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf 40 Fed. Reg. 56741] (1975).<br />
**49 Fed. Reg. 12338 (1984).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (1989).<br />
*''Management of Federal Information Resources'', Circular A130, 50 Fed. Reg. 52730 (Dec. 24, 1985).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Final Guidance on Privacy Act Implications of “Call Detail” Programs], 52 Fed. Reg. 12290 (Apr. 20, 1987).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Pub. L. No. 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], 56 Fed. Reg. 18599 (Apr. 23, 1991).<br />
*''Proposed Revision of OMB Circular A130'', 57 Fed. Reg. 18296 (Apr. 29, 1992).<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (Feb. 20, 1996).<br />
*M-0105, [https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-05-Guidance-on-Inter-Agency-Sharing-of-Personal-Data-Protecting-Personal-Privacy.pdf Guidance on Inter-Agency Sharing of Personal Data—Protecting Personal Privacy] (2000).<br />
*M-0322, [https://www.whitehouse.gov/wp-content/uploads/2017/11/203-M-03-22-OMB-Guidance-for-Implementing-the-Privacy-Provisions-of-the-E-Government-Act-of-2002-1.pdf Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002] (2003).<br />
*[https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 Revision of OMB Circular No. A-130 “Managing Information as a Strategic Resource”], 81 Fed. Reg. 49689 (July 28, 2016).<br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports on E-Government Act Implementation from 2003-2015]<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/egov_docs/egov_implementation_report_6_17_16.pdf 2015 Annual Report to Congress: E-Government Act Implementation]<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/egov/documents/omb-fy-2016-egov-act-report.pdf 2016 Annual Report to Congress: E-Government Act Implementation]<br />
*M-21-04, [https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act] (2020).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission] (1977).<br />
*Gen. Accounting Office, GAO/PEMD-87-2, [https://www.gao.gov/assets/150/144893.pdf Computer Matching: Assessing its Costs and Benefits] (1986).<br />
*Gen. Accounting Office, GAO/GGD-91-48, [https://www.gao.gov/assets/220/213974.pdf Peer Review: Compliance with the Privacy Act and the Federal Advisory Committee Act] (1991).<br />
*Gen. Accounting Office, GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003).<br />
*[https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf A Citizen’s Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records], Report by the Comm. on Oversight and Gov’t Reform, 112th Cong. (2012).<br />
*Dep’t of Justice, [https://www.justice.gov/opcl/file/793026/download Overview of the Privacy Act of 1974] (2015).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Lillian R. Bevier, [https://core.ac.uk/download/pdf/73966670.pdf Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection], 4 Wm. & Mary Bill Rights J. 455 (1991).<br />
*Babette Boliek, ''Prioritizing Privacy in the Courts and Beyond'', 103 Cornell L. Rev. 1101 (2018).<br />
*Jonathan C. Bond, Note, [http://www.gwlr.org/wp-content/uploads/2012/08/76-5-Bond.pdf Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century], 76 Geo. Wash. L. Rev. 1232 (2008).<br />
*William S. Challis & Ann Cavoukian, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1148&context=jitpl The Case for a U.S. Privacy Commissioner: A Canadian Commissioner’s Perspective], 19 J. Marshall J. Computer & Info. L. 1 (2000).<br />
*Todd Robert Coles, Comment, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1848&context=aulr Does the Privacy Act of 1974 Protect Your Right to Privacy?: An Examination of the Routine Use Exemption], 40 Am. U. L. Rev. 957 (1991).<br />
*John M. Eden, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1140&context=dltr When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID], 2005 Duke L. & Tech. Rev. 20 (2005).<br />
*Haeji Hong, [https://www.uakron.edu/dotAsset/727663.pdf Dismantling the Private Enforcement of the Privacy Act of 1974: Doe v. Chao], 38 Akron L. Rev. 71 (2005).<br />
*Margaret Hu, ''The Ironic Privacy Act'', 96 Wash. U.L. Rev. 1267 (2019).<br />
*Joseph V. Kaplan & John Mahoney, ''Reckless Disregard: Intentional and Willful Violations of the Privacy Act’s Investigatory Requirements'', 44 Fed. Law. No. 4, at 38 (1997).<br />
*Alex Kardon, [http://www.harvard-jlpp.com/wp-content/uploads/2013/10/KardonFinal.pdf Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform], 34 Harv. J. L. & Pub. Pol’y 705 (2011).<br />
*Flavio Komuves, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1243&context=jitpl We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers], 16 J. Marshall J. Computer & Info. L. 529 (1998).<br />
*Frederick Z. Lodge, Note, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2579&context=flr Damages Under the Privacy Act of 1974: Compensation and Deterrence], 52 Fordham L. Rev. 611 (1984).<br />
*Caleb A. Seeley, Note, [https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-91-5-Seeley.pdf Once More unto the Breach: The Constitutional Right to Informational Privacy and the Privacy Act], 91 N.Y.U. L. Rev. 1355 (2016).<br />
*Lisa A. Reilly, ''The Government in the Sunshine Act and the Privacy Act'', 55 Geo. Wash. L. Rev. 955 (1987).<br />
*Nicole M. Quallen, [https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4408&context=nclr Damages under the Privacy Act: Is Emotional Harm Actual], 88 N.C. L. Rev. 334 (2009).<br />
*Paul M. Schwartz, [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2572&context=facpubs Privacy and Participation: Personal Information and Public Sector Regulation in the United States], 80 Iowa L. Rev. 553 (1995).<br />
*Daniel Solove, [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2085&context=faculty_publications Identity Theft, Privacy, and the Architecture of Vulnerability], 54 Hastings L.J. 1227 (2003).<br />
*Julianne M. Sullivan, Comment, [https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=cwlr Will the Privacy Act of 1974 Still Hold Up in 2004? How Advancing Technology Has Created a Need for a Change in the “System of Records” Analysis], 39 Cal. W. L. Rev. 395 (2003).<br />
*Thomas M. Susman, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=2035&context=lawreview Privacy Act and the Freedom of Information Act: Conflict and Resolution], 21 J. Marshall L. Rev. 703 (1988).<br />
*Ari Ezra Waldman, ''Privacy Law's False Promise'', 97 Wash. U.L. Rev. 773 (2020).<br />
</div><br />
<br />
===Selected Cases Not Included in the Text===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798 (N.D. Ga. 1978).<br />
*''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
*''Albright v. United States'', 631 F.2d 915 (D.C. Cir. 1980).<br />
*''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980).<br />
*''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980).<br />
*''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981).<br />
*''Fitzpatrick v. United States'', 665 F.2d 327 (11th Cir. 1982).<br />
*''Clarkson v. IRS'', 678 F.2d 1368 (11th Cir. 1982).<br />
*''Johnson v. U.S. Dep’t of the Treasury'', 700 F.2d 971 (5th Cir. 1983).<br />
*''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
*''Molerio v. FBI'', 749 F.2d 815 (D.C. Cir. 1984).<br />
*''Elm v. Nat’l R.R. Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984).<br />
*''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
*''Vymetalik v. FBI'', 785 F.2d 1090 (D.C. Cir. 1986).<br />
*''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987).<br />
*''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988).<br />
*''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989).<br />
*''Pototsky v. U.S. Dep’t of the Navy'', 717 F. Supp. 20 (D. Mass. 1989).<br />
*''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989).<br />
*''Quinn v. Stone'', 978 F.2d 126, 133 (3rd Cir. 1992).<br />
*''Kassel v.'' U.S. ''Dep’t of Veterans Affairs'', No. 87-217-S (D.N.H. Mar. 30, 1992).<br />
*''United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997).<br />
*''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976).<br />
*''In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439 (D.C. Cir. 1996).<br />
*''Alexander v. FBI'', 971 F. Supp. 603 (D.D.C. 1997).<br />
*''Shannon v. General Elec. Co.'', 812 F. Supp. 308 (N.D.N.Y. 1993).<br />
*''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996).<br />
*[http://www.vawd.uscourts.gov/OPINIONS/WILSON/600CV0005(3).PDF Falwell v. Exec. Office of the President], 113 F. Supp. 2d 967 (W.D. Va. 2000).<br />
*''Dale v. Exec. Office of the President'', 164 F. Supp. 2d 22 (D.D.C. 2001).<br />
*''Trulock v. DOJ'', No. 00-2234, slip op. (D.D.C. Sept. 18, 2001).<br />
*''Tripp v. Exec. Office of the President'', 200 F.R.D. 140 (D.D.C. 2001).<br />
*''Broaddrick v. Exec. Office of the President'', 139 F. Supp. 2d 55 (D.D.C. 2001).<br />
*''Flowers v. Exec. Office of the President'', 142 F. Supp. 2d 38 (D.D.C. 2001).<br />
*''Jones v. Exec. Office of the President'', 167 F. Supp. 2d 10 (D.D.C. 2001).<br />
*''Sculimbrene v. Reno'', 158 F. Supp. 2d 26 (D.D.C. 2001).<br />
*''Schwarz v. U.S. Dep’t of the Treasury'', 131 F. Supp. 2d 142 (D.D.C. 2000).<br />
*''Cobell v. Norton'', 157 F. Supp. 2d 82 (D.D.C. 2001).<br />
*''Cummings v. U.S. Dep’t of the Navy'', 279 F.3d 1051 (D.C. Cir. 2002).<br />
*''McCready v. Principi'', 297 F. Supp. 2d 178 (D.D.C. 2003).<br />
*''Chang v. U.S. Dep’t of the Navy'', 314 F. Supp.2d 35 (D.D.C. 2004).<br />
*''Maydak v. United States'', 363 F.3d 512 (D.C. Cir. 2004).<br />
*[https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614 (2004).<br />
*''NASA v. Nelson'', 562 U.S. 134 (2011).<br />
*[https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 132 S. Ct. 1441 (2012).<br />
*''Logan v. U.S. Dep’t of Veterans Affairs'', 357 F. Supp. 2d 149 (D.D.C. 2004).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2006/03/13/0335877.pdf Oja v. U.S. Army Corps of Engineers], 440 F.3d 1122 (9th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/013337AFDE8A8304852574400044F8CC/$file/04-5425a.pdf McCready v. Nicholson], 465 F.3d 1 (D.C. Cir. 2006).<br />
*[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2006/D01-30/C:04-3888:J:_:aut:T:op:N:0:S:0 Bassiouni v. FBI], 436 F.3d 712 (7th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/E94B1B7BAE4935098525744000455619/$file/06-5085b.pdf Sussman v. U.S. Marshals Serv.], 494 F.3d 1106 (D.C. Cir 2007).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/9F94563D7D135A85852578000052F342/$file/07-5257-1132633.pdf Wilson v. Libby], 535 F.3d 697 (D.C. Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2008/05/02/0615191.pdf Lane v. U.S. Dep’t of the Interior], 523 F.3d 1128 (9th Cir. 2008).<br />
*[http://media.ca8.uscourts.gov/opndir/08/03/071576P.pdf Doe v. U.S. Dep’t of Veterans Affairs], 519 F.3d 456 (8th Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2009/05/21/06-15967.pdf Rouse v. U.S. Dep’t of State], 567 F.3d 408 (9th Cir. 2009).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/EAC6966EA3FE7C2885257807005C6E66/$file/07-5352-1285040.pdf Maydak v United States], 630 F.3d 166 (D.C. Cir. 2010).<br />
*[http://media.ca11.uscourts.gov/opinions/pub/files/200916154.pdf Speaker v. U.S. Dep’t of Health and Human Serv. Ctr. for Disease Control and Prevention], F.3d 1371 (11th Cir. 2010).<br />
*[https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58 Sieverding v. DOJ], 693 F. Supp. 2d 93 (D.D.C. 2010).<br />
*[http://www.opn.ca6.uscourts.gov/opinions.pdf/11a0098p-06.pdf Shearson v. DHS], 638 F.3d 498 (6th Cir. 2011).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir. 2015).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/57E67EBF550EDDAB8525822C005378F2/$file/16-5045-1716627.pdf Liff v. Office of Inspector Gen. for the U.S. Dep’t of Labor], 881 F.3d 912 (D.C. Cir. 2018).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Fazaga v. FBI], 916 F.3d 1201 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/22/17-17349.pdf Rojas v. FAA], 941 F.3d 392 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/18-15416.pdf Garris v. FBI], 937 F.3d 1284 (9th Cir. 2019).<br />
*[https://law.justia.com/cases/federal/appellate-courts/cadc/17-5117/17-5117-2019-06-21.html In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.], 928 F.3d 42 (D.C. Cir. 2019).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Privacy Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a. Records maintained on individuals]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Privacy_Act&diff=1674Privacy Act2023-08-15T20:44:25Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] (2012), enacted by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 3, 88 Stat. 1897, Dec. 31, 1974; significantly amended by [https://www.govinfo.gov/content/pkg/STATUTE-89/pdf/STATUTE-89-Pg1057.pdf Pub. L. No. 94-183], § 2(2), 89 Stat. 1057, Dec. 31, 1975; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365], § 2, 96 Stat. 1749, Oct. 25, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg1819.pdf Pub. L. No. 97-375], title II, § 201(a), (b), 96 Stat. 1821, Dec. 21, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2467.pdf Pub. L. No. 97-452], §2(a)(1), 96 Stat. 2478, Jan. 12, 1983; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c), 98 Stat. 2211, Oct. 15, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], title I, §107(g), 98 Stat. 2292, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503], §§ 28, 102 Stat. 2507-2514, Oct. 18, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg1388.pdf Pub. L. No. 101-508], title VII, §7201(b)(1), 104 Stat. 1388-(3), Nov. 5, 1990; by [https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1466.pdf Pub. L. No. 103-66], title XIII, Ch. 2, subch. A, pt. V, §13581(c), 107 Stat. 611, Aug. 10, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ193/pdf/PLAW-104publ193.pdf Pub. L. No. 104-193], title I, § 110(w), 110 Stat. 2175, Aug. 22, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ226/pdf/PLAW-104publ226.pdf Pub. L. No. 104-226], § 1(b)(3), 110 Stat. 3033, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-104publ316/pdf/PLAW-104publ316.pdf Pub. L. No. 104-316], title I, § 115(g)(2)(b), 110 Stat. 3835, Oct. 19, 1996; by [https://www.congress.gov/105/plaws/publ34/PLAW-105publ34.pdf Pub. L. No. 105-34], title IX, subtitle C, § 1026(b)(2), 111 Stat. 925, Aug. 5, 1997; by [https://www.govinfo.gov/content/pkg/PLAW-105publ362/pdf/PLAW-105publ362.pdf Pub. L. No. 105-362], title XIII, § 1301(d), 112 Stat.3292, Nov. 10, 1998; by [https://www.govinfo.gov/content/pkg/PLAW-108publ271/pdf/PLAW-108publ271.pdf Pub. L. No. 108-271], 118 Stat. 814, July 7, 2004; by [https://www.govinfo.gov/content/pkg/PLAW-111publ148/pdf/PLAW-111publ148.pdf Pub. L. No. 111-148], Title VI, § 6402(b)(2), 124 Stat. 756, Mar. 23, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203], Title X, § 1082, 124 Stat. 2080, July 21, 2010; by [https://www.govinfo.gov/content/pkg/PLAW-113publ295/pdf/PLAW-113publ295.pdf Pub. L. No. 113-295], Div. B, Title I, § 102(c), 128 Stat. 4062, Dec. 19, 2014.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
==Overview==<br />
The Privacy Act of 1974 represents the Congressional response to concerns about government uses of information collected about private individuals. The Privacy Act gives individuals greater control over the gathering, dissemination, and accuracy of information collected about themselves by agencies. ''Miller v. United States'', 630 F. Supp. 347 (E.D.N.Y. 1986). The main purpose of the Privacy Act is to forbid disclosure unless it is required by the [[Freedom of Information Act]] (FOIA). ''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980). To protect individual privacy, the Privacy Act constrains executive branch recordkeeping, defines the individual’s right to access certain records, limits agency disclosure of records containing an individual’s private information, establishes safeguards to protect records concerning individuals, and provides remedies for agency violation of the Privacy Act’s provisions.<br />
<br />
===Scope===<br />
<br />
The Privacy Act covers records maintained by agencies as defined in FOIA. It applies to Cabinet-level departments, independent regulatory agencies, military departments, and government corporations. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(a)(1)]. It does not apply to the legislative branch, national banks (''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981)), or Amtrak (''Ehm v. National R.R.'' ''Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984), ''cert. denied'', 469 U.S. 982 (1984)). ''See Alexander v. FBI'', 971 F. Supp. 603, 606-07 (D.D.C. 1997) (recognizing that the definition of “agency” under Privacy Act is same as in FOIA and that courts have interpreted that definition under FOIA to exclude the President’s immediate personal staff and units within Executive Office of the President whose sole function is to advise and assist the President, but, nevertheless rejecting such limitation with regard to “agency” as used in the Privacy Act due to the different purposes that the two statutes serve); ''Shannon v. Gen. Elec. Co.'', 812 F. Supp. 308, 313, 315 n.5 (N.D.N.Y. 1993) (stating there is “no dispute” that General Electric (GE) falls within the definition of “agency” subject to requirements of the Privacy Act where, pursuant to a contract, it operated a Department of Energy-owned lab under the supervision, control, and oversight of the Department and where, by terms of the contract, GE agreed to comply with the Privacy Act).<br />
<br />
A record is a collection or grouping of information about an individual that, for example, may include educational, financial, or biographical information, together with personal identifiers such as names, photos, numbers, or fingerprints. 5 U.S.C. § 552a(a)(4). The Privacy Act does not apply to all government records and documents that may contain an individual’s name or other private information. For example, it does not include the private notes of a supervisor if such notes are not used by the agency to make decisions. ''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989). But such notes may become subject to the Privacy Act if they become part of an agency’s decision. ''Chapman v. NASA'', 682 F.2d 526 (5th Cir. 1982), ''cert. denied'', 469 U.S. 1038 (1984). The Act also does not apply to information in documents obtained from independent sources of information, even though identical information may be in an agency’s system of records. ''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
<br />
The Privacy Act focuses on “systems of records” established, maintained, or controlled by an agency. A “system of records” is a group of any records where individual names or other individual identifiers can be used to retrieve the information. 5 U.S.C. § 552a(a)(5). Agencies may maintain records covered by the Privacy Act only when they are relevant and necessary to accomplish the agency’s purpose. 5 U.S.C. § 552a(e)(1). The Court of Appeals for the District of Columbia Circuit addressed the “system of records” definition in the context of computerized information in ''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996), and noted that “the [Office of Management and Budget] guidelines make it clear that it is not sufficient that an agency has the capability to retrieve information indexed under a person’s name, but the agency must in fact retrieve records in this way in order for a system of records to exist.” ''Id.'' at 1460 n.12. The D.C. Circuit looked to Congress’ use of the words “is retrieved” in the statute’s definition of a system of records and focused on whether the agency “in practice” retrieved information. ''Id.'' at 1459-61.<br />
<br />
===Access to Records===<br />
Where the agency is authorized to keep records covered by the Privacy Act, an individual has a right of access to records concerning him or her. This is a central protection of the Privacy Act for individuals. The individual has a right to:<br />
<br />
*copy any or all of the record (§ 552a(d)(1));<br />
*request amendment of the record (§ 552a(d)(2)) and to file a concise statement of disagreement if the agency refuses to amend the record that will be provided to all persons to whom the record is disclosed (§ 552a(d)(4)); and<br />
*request an accounting from the agency on the date, nature, and purpose of each disclosure of the record (§ 552a(c)).<br />
<br />
The individual has an absolute right to access and need not provide any reason for seeking access (''FTC v. Shaffner'', 626 F.2d 32 (7th Cir. 1980)).<br />
<br />
===Agency Requirements=== <br />
For each system of records an agency maintains, it must:<br />
<br />
*publish in the ''Federal Register'' the name and location of the system; the categories of individuals contained in the system; the routine use of the records; agency policies concerning the records including storage, retrieval, access, retention, and disposal; the person, including title and address, responsible for the system; the method used to notify individuals how to gain access to records about themselves; and the sources or records in the system. Any new use of the system must be noticed for comment 30 days prior to implementing the new use. Exempt systems must also be noticed. ''See, e.g.,'' § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a(b)(3)], (e)(4), and (e)(11).<br />
*maintain records in the system accurately, completely, and timely to ensure fairness to the individuals (§ 552a(e)(5));<br />
*establish rules and training for persons designing, developing, operating, or maintaining the system to ensure compliance with the Privacy Act and the agency’s implementing policies (§ 552a(e)(9));<br />
*establish safeguards for the protection of records (§ 552a(e)(10)); and<br />
*inform government contractors of their duties under the Privacy Act (§ 552a(m)).<br />
<br />
When the agency collects information that “may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs,” the Privacy Act requires the information to be collected, to the “greatest extent practicable,” directly from the affected individual (§ 552a(e)(2)). When requesting such information from individuals, the agency must disclose: (1) the authority under which collection is authorized; (2) the principal purposes for which the information is needed; (3) the routine use of the information; and (4) consequences, if any, of not providing the information (§ 552a(e)(3)).<br />
<br />
The Privacy Act mandates that information maintained in agency records be as relevant and as necessary as possible to accomplish the agency’s purpose. It must also undertake to maintain the information with such accuracy and completeness as is reasonably necessary to assure fairness to the individual. In ''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987), the court sitting en banc held that an agency may satisfy this requirement by supplementing the information an individual considers damaging with the individual’s explanation or disagreement with the accuracy of the information. The court found that the agency made a reasonable effort to determine the accuracy of the information and that an adjudication of the disputed facts was not necessary for the agency’s purposes. The court said that in some cases, fairness may require a record to contain both versions of disputed fact.<br />
<br />
Agencies are prohibited from maintaining records describing how an individual exercises First Amendment rights, unless such records are authorized by statute or are pertinent to and within the scope of authorized law enforcement activity (§ 552a(e)(7)). Such records are subject to the Privacy Act even if not kept in “a system of records.” ''Clarkson v. IRS'', 678 F.2d 1368 at 1373-77 (11th Cir. 1982), ''cert. denied'', 481 U.S. 1031. ''Cf. Pototsky v. U.S. Dep’t of Navy'', 717 F. Supp. 20 (D. Mass. 1989). Guidelines from the Office of Management and Budget (OMB) call for the broadest reasonable interpretation of the prohibition.<br />
<br />
===Exemptions from Access===<br />
The Privacy Act provides general (§ 552a(j)) and specific (§ 552a(k)) exemptions. These are exemptions allowing an agency to deny access to the record by the individual to whom the record pertains. The two types of exemptions are different in nature and consequences and are discretionary on the agency’s part. To be effective, the agency must first determine that a record or system of records meets the criteria for exemption under the Privacy Act and then publish the exemption as a rule under the [[Administrative Procedure Act]]’s (APA) notice-and-comment provisions. Failure to set out reasons demonstrating that the exemption meets the requirements of the Privacy Act may leave the records subject to the Privacy Act. ''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980). The exemptions do not authorize the agency to use the record in a manner other than the manner originally set out in the ''Federal Register'' establishing the system of records. ''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
A general exemption denies access by an affected individual under virtually all the Privacy Act’s provisions and is available for records maintained by the Central Intelligence Agency or by an agency whose principal functions are criminal law enforcement. The general exemption may not be used to exempt records compiled for a noncriminal or administrative purpose even if they are also a part of a system of records maintained by an agency qualified to assert the exemption. ''Vymetalik v. FBI'', 785 F.2d 1090, 1095 (D.C. Cir. 1986).<br />
<br />
The specific exemptions (§ 552a(k)(1)(7)) are available to any agency if the head of the agency promulgates rules pursuant to the notice-and-comment provisions of the [[Administrative Procedure Act|APA]] (5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim 553]). The specific exemption is from a particular provision of the Privacy Act. The seven exemptions allowed are:<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim FOIA (b)(1) exemptions] (matters to be kept secret in the interest of national defense or foreign policy and properly classified by executive order);<br />
*investigatory material compiled for law enforcement purposes that does not fall within the general exemption;<br />
*material maintained to provide protective service to the President or pursuant to 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section3056&num=0&edition=prelim § 3056];<br />
*confidential investigatory records relating to employment or contracts;<br />
*statistical records required by statute;<br />
*testing and examination material related to federal employment; and<br />
*evaluations related to military promotions obtained confidentially.<br />
<br />
An individual may sue to challenge a denial of access to records based on the general or specific exemptions, and the court will determine the substantive and procedural propriety of the agency’s assertion of the exemption. ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
<br />
===Restrictions on Disclosure===<br />
The Privacy Act prohibits disclosure of any record covered by the Privacy Act without the written request or prior written consent of the person whom the record concerns (§ 552a(b)). The restriction on disclosure applies to any person or agency and includes any means of communication—written, oral, electronic, or mechanical [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Responsibilities for the Maintenance of Records About Individuals by Federal Agencies], 40 Fed. Reg. 28948, 28953 (July 9, 1975). Information obtained (or released) through sources independent of agency records is not “disclosure” under the Privacy Act.<br />
<br />
The general rule of nondisclosure is subject to 12 exceptions (§ 552a(b)(1)(12)). They are:<br />
<br />
*internal agency use on a need to know basis;<br />
*proper requests under FOIA;<br />
*routine use;<br />
*Census Bureau activities;<br />
*statistical research where the recipient has given written assurance that records are not individually identifiable;<br />
*National Archives preservation;<br />
*information to Congress;<br />
*information to the Comptroller General in performing Government Accountability Office (GAO) duties;<br />
*showing of compelling circumstances affecting the health or safety of an individual;<br />
*pursuant to court order (subpoenas issued by clerks of courts are not “orders” ''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798, 800 (N.D. Ga. 1978));<br />
*to a consumer reporting agency in accordance with 31 U.S.C. § 3711(f); and<br />
*use by “any governmental jurisdiction . . . for a civil or criminal law enforcement activity” as long as a written request (1) is made by the head of the agency seeking the record, (2) specifies the portion of the record sought, and (3) describes the relevant enforcement activity. ''See Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
<br />
“Routine use,” considered generally the most important exception, is defined as “the use of such record for a purpose that is compatible with the purpose for which it was collected” (§ 552a(a)(7)). Each routine use is identified in the ''Federal Register'' notice upon establishment or revision of each system of records (§ 552a(e)(4)(D)). This exception permits nonconsensual intra- or interagency transfer of what is generally described as “house-keeping” information. Because the language is broad, the potential for abuse is considered great, and the courts have strictly required that the use be clearly and specifically identified in the rule adopted by the agency identifying the system of records. ''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989); ''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988); ''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979). The Supreme Court has found that the Privacy Act’s provisions restricting disclosure, even while allowing disclosure for “routine uses,” are sufficient to protect persons’ constitutional right to informational privacy, if such a right exists. ''NASA v. Nelson'', 562 U.S. 134, 153-55 (2011).<br />
<br />
===Review, Relief, Remedies===<br />
The Privacy Act provides that each agency shall promulgate rules that establish, among other things, procedures of notice, disclosure, and review of requests (§ 552a(f)). In the event that the rules are not followed or that a dispute persists, there are four civil actions: (1) a challenge for failure to provide access; (2) a challenge for refusal to amend; (3) a damages action for improper maintenance of the content of records; and (4) a damages action for other breaches of the Privacy Act or regulations issued thereunder that adversely affect the individual (§ 552a(g)(1)). The latter two actions require proof of damages and are limited to actual damages. A cause of action for monetary damages requires a showing of an agency’s intentional or willful failure to maintain accurate records and that the violation of the Privacy Act caused the actual damages complained of. ''Molerio v. FBI'', 749 F.2d 815, 826 (D.C. Cir. 1984). Because waivers of sovereign immunity are to be strictly construed, the Supreme Court held that “actual damages” do not include nonpecuniary damages. [https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 566 U.S. 284 (2012). Remedies for failure to grant access or refusal to amend are injunctive.<br />
<br />
An individual bringing a claim under § 552a(g)(1) must demonstrate a causal connection between the alleged violation and the harm suffered but may not use the Privacy Act claim as the forum in which to prove the entitlement the individual claims was improperly denied. ''Gizoni v. Sw. Marine, Inc.'', 909 F.2d 385 (9th Cir. 1990).<br />
<br />
Criminal penalties are established for willful disclosure of records by those who know such disclosure is prohibited, willful maintenance of a system of records without meeting the appropriate notice requirements, and knowing and willful requests for records under false pretenses (§ 552a(i)). Each violation is classified as a misdemeanor, and the violator may be fined not more than $5,000. There have been at least two criminal prosecutions for unlawful disclosure of Privacy Act-protected records. ''See United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997) (defendant found not guilty; prosecution did not prove “beyond a reasonable doubt that defendant ‘willfully disclosed’ protected material”; evidence presented constituted, “at best, gross negligence,” and thus was “insufficient for purposes of prosecution under § 552a(i)(1)”); ''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976) (guilty plea entered). ''See generally In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439, 1441 (D.C. Cir. 1996) (''per curiam'') (case concerning application for reimbursement of attorney fees where independent counsel found no prosecution was warranted under Privacy Act because there was no conclusive evidence of improper disclosure of information). In a case involving the destruction of records, [https://www.cadc.uscourts.gov/internet/opinions.nsf/1E0F642CD84E034985257B3D004E4186/$file/09-5354-1427961.pdf Gerlich v. DOJ], 711 F.3d 161 (D.C. Cir. 2013), the D.C. Circuit allowed a Privacy Act claim to proceed against senior officials at the Department of Justice on the ground that they created records about appellants in the form of annotations to their applications and internet printouts concerning their political affiliations. The court relied in part on a permissive spoliation inference in light of the destruction of appellants’ records, because the senior department officials had a duty to preserve the annotated applications and internet printouts given that department investigation and future litigation were reasonably foreseeable.<br />
<br />
The Privacy Act provides a two-year statute of limitations (§ 552a(g)(5)). The time begins to run when a reasonable person should have known of the alleged violation. ''Rose v. United States'', 905 F.2d 1257, 1259 (9th Cir. 1990); ''Diliberti v. United States'', 817 F.2d 1259, 1262 (7th Cir. 1987).<br />
<br />
===Computer Matching===<br />
The Privacy Act was amended in 1988 by the Computer Matching and Privacy Protection Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg2507.pdf Pub. L. No. 100-503]). OMB issued final guidance implementing the amendment’s provisions on June 19, 1989. [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989)). The amendments added § 552a(o)-(q) to establish procedural safeguards affecting agencies’ use of Privacy Act records when performing computerized matching programs. The amendments require agencies to conclude written agreements specifying terms and safeguards under which matches are to be done. They provide procedures for individuals whose information is contained in the affected records to use to prevent agencies from taking adverse actions unless they have independently verified the results of matching and given the individual advance notice. Oversight is established by requiring ''Federal Register'' notice of matching agreements, by requiring reports to OMB and Congress, and by requiring the establishment of internal “data integrity boards” to oversee and coordinate the agency’s implementation of matching programs.<br />
<br />
===Relationship to the FOIA===<br />
Two provisions relate to FOIA (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]). Section 552a(b)(2) exempts agencies from the requirement of obtaining an individual’s consent to release of information subject to disclosure under FOIA. In 1984, Congress added provisions delineating an individual’s access rights to records exempt from disclosure under FOIA or the Privacy Act. An agency must give an individual access to a record if it is accessible under either act irrespective of whether it might be withheld under the other (§ 552a(t)). This gives maximum access to records by an individual whose personal information is contained therein. An accounting of the number of FOIA releases of Privacy Act information is not required (§ 552a(c)(1)). If released under FOIA, the agency is relieved from ensuring the accuracy, completeness, timeliness, and relevance of the record (§ 552a(e)(6)). If the system of records is made necessary by FOIA, the agency may exempt the system from the Privacy Act (§ 552a(k)(1)).<br />
<br />
===Social Security Numbers===<br />
The Privacy Act restricts use of an individual’s Social Security account number ([https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1896.pdf Pub. L. No. 93-579], § 7) (not codified as part of 5 U.S.C. § 552a). This provision applies to state and local governments as well as the federal government and makes it unlawful to deny any right, benefit, or privilege based on an individual’s failure to disclose the Social Security account number, unless the disclosure was required by any federal, state, or local system of records in operation before January 1, 1975, or the disclosure is required by federal law. Since enactment, Congress has required disclosure in the Tax Reform Act of 1976 ([http://uscode.house.gov/statutes/pl/94/455.pdf Pub. L. No. 94-455]), the Deficit Reduction Act of 1984 ([http://uscode.house.gov/statutes/pl/109/171.pdf Pub. L. No. 98-369]), and the Debt Collection Act of 1982 ([https://www.gpo.gov/fdsys/pkg/STATUTE-96/pdf/STATUTE-96-Pg1749.pdf Pub. L. No. 97-365]). In the Tax Reform Act of 1976, Congress declared it to be U.S. policy to use Social Security account numbers “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law.” Pub. L. No. 94-455, amending 42 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section405&num=0&edition=prelim 405(c)(2)].<br />
<br />
==Oversight==<br />
The Privacy Act requires OMB to develop guidelines and regulations for its implementation and to provide continuing assistance and oversight. The OMB guidelines are entitled to the usual deference accorded the interpretations of the agency charged with administration of a statute. ''Albright v. United States'', 631 F.2d 915, 919 n.5 (D.C. Cir. 1980); ''Quinn v. Stone'', 978 F.2d 126, 133 (3d Cir. 1992). However, a few courts have rejected particular aspects of the OMB Guidelines as inconsistent with the statute. ''See, e.g.'', ''Kassel v. U.S. Dep’t of Veterans Affairs'', No. 87-217-S, slip op. at 24-25 (D.N.H. Mar. 30, 1992) (subsection (e)(3)); [https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614, 627 n.11 (2004) (disagreeing with dissent’s reliance on OMB interpretation of damages provision since the Court does “not find its unelaborated conclusion persuasive”).<br />
<br />
The vast majority of OMB’s Privacy Act guidelines are published in [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (1975). However, these original guidelines have been supplemented in particular subject areas over the years, including:<br />
<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Appendix I to OMB Circular No. A-130], most recently revised at [https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 81 Fed. Reg. 49689] (July 28, 2016)).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act Supplemental Guidance], 40 Fed. Reg. 56741 (Dec. 4,1975) (system of records definition, routine use and intra-agency disclosures, consent and congressional inquiries, accounting of disclosures, amendment appeals, rights of parents and legal guardians, relationship to FOIA).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Guidelines on the Relationship of the Debt Collection of 1982 to the Privacy Act of 1974], 48 Fed. Reg. 15556 (Apr. 11, 1983) (relationship to Debt Collection Act).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Guidance on the Privacy Act Implications of “Call Detail” Programs to Manage Employees’ Use of the Government’s Telecommunications Systems], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf 52 Fed. Reg. 12990-93] (Apr. 20, 1987) (“call detail” programs).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Public Law 100-503, the Computer Matching and Privacy Protection Act of 1988], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (June 19, 1989) (computer matching).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf 56 Fed. Reg. 18599] (proposed Apr. 23, 1991) (computer matching);<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (1996) (“Federal Agency Responsibilities for Maintaining Records About Individuals”).<br />
<br />
Thus, when researching in this area, it may be important to check subsequent supplements.<br />
<br />
In 1998, President Clinton called upon all federal agencies to take further privacy-protection steps within the next year. [https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998). Specifically, the President directed each agency to designate a senior official with responsibility for privacy policy to apply the Principles for Providing and Using Personal Information that were developed through the Information Infrastructure Task Force under the auspices of the Department of Commerce in 1995 and to conduct a series of reviews of agency record systems in order to ensure compliance with Privacy Act requirements. The Privacy Act related reviews, conducted in accordance with instructions issued by OMB, reported results to OMB. The memorandum also provided that OMB issue further guidance on the making of “routine use” disclosures under the Privacy Act.<br />
<br />
Section 208 (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=(title:44%20section:3501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title44-section3501)&f=treesort&edition=prelim&num=0&jumpTo=true § 3501 note]) of the [[E-Government Act of 2002]] requires that OMB issue guidance to agencies on implementing the privacy provisions of the E-Government Act. Under this guidance, agencies are required to conduct privacy impact assessments for electronic information systems and collections, make them publicly available, post privacy policies on agency websites used by the public, translate privacy policies into a standardized machine-readable format, and report annually to OMB on compliance with the E-Government Act.<br />
<br />
In 2002, GAO conducted an extensive review of agency Privacy Act practices, and reported on its findings in June 2003. GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003). <br />
<br />
While most questions concerning the Privacy Act should first be directed to agency Privacy Act officers, important policy or litigation questions, or questions concerning the OMB Guidelines, may be directed to the [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs].<br />
<br />
==Legislative History==<br />
The Privacy Act reflects the merger of seemingly disparate bills from the Senate and the House: S. 3418, introduced by Senator Sam Ervin (D-NC), and H.R. 16373, supported by the Administration. The Senate bill would have granted sweeping powers to a Federal Privacy Board for the oversight of collection, maintenance, and dissemination of individually identifiable information by both the public and private sectors, while the House bill focused on access to and correction of records, data collection, and maintenance standards. The Senate approved its bill on November 21, 1974, after consideration and, on the same day, the House bill was passed by a 353 to 1 vote, after two days of floor debate.<br />
<br />
The bills were not reconciled by the usual conference committee because of the limited time available between the end of Thanksgiving recess and the end of the session. Instead, the respective staffs of the committees studied the differing bills, reported to the committees and, after informal meetings, reached an agreement. The description of the amendments that made the two bills identical (thus avoiding a conference committee) was inserted into the record of both sides, and both houses passed identical bills. Thus, many of the most important provisions of the bill are not explained by committee reports. The only record of the final negotiations leading to the bill actually adopted is a staff memorandum entitled ''Analysis of House and Senate Compromise Amendments to the Federal Privacy Act''; ''see also'' [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S.3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976)).<br />
<br />
The final product included most of the fair information practices defined in the Senate version and the access and correction provisions of the House bill. None of the Senate provisions relating to a Federal Privacy Board was included. However, the Privacy Act provided for two important means of further development and oversight:<br />
<br />
*it instructed OMB to develop guidelines for the implementation of the Privacy Act throughout the executive branch; and<br />
*the Privacy Protection Study Commission was created by the Privacy Act to study the issues raised by the Privacy Act and to recommend further legislation, and it subsequently completed its thorough and informative report, [https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society].<br />
<br />
The bill was signed by President Ford on December 31, 1974 and became effective September 1975.<br />
<br />
===Source Note===<br />
The legislative history of the original Act is exhaustively collected in [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy] (1976). <br />
<br />
The Department of Justice’s [https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition Overview of the Privacy Act of 1974] is updated periodically and discusses the extensive case law under the Privacy Act.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*Joint Comm. on Government Operations, [http://www.loc.gov/rr/frd/Military_Law/pdf/LH_privacy_act-1974.pdf Legislative History of the Privacy Act of 1974, S. 3418 (Pub. L. No. 93-579): Source Book on Privacy], 94th Cong. (1976).<br />
*H.R. Rep. No. 100-802 (1988).<br />
*S. Rep. No. 100-516 (1988).<br />
*''Who Cares About Privacy? Oversight of the Privacy Act of 1974 by the Office of Management and Budget and by the Congress,'' ''H.R. Rep. No. 98-455'', Hearings Before Subcomm. of the H. Comm. on Gov’t Operations, 98th Cong. (1983).<br />
*America’s Healthy Future Act of 2009, [https://www.congress.gov/111/crpt/srpt89/CRPT-111srpt89.pdf S. Rep. No. 111-89] (2009).<br />
*The Restoring American Financial Stability Act of 2010, [https://www.congress.gov/111/crpt/srpt176/CRPT-111srpt176.pdf S. Rep. No. 111-176] (2010).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. 112-689] (2012).<br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.govinfo.gov/content/pkg/WCPD-1998-05-18/pdf/WCPD-1998-05-18-Pg870.pdf Memorandum on Privacy and Personal Information in Federal Records] (May 14, 1998).<br />
*Executive Order 13478, [https://www.govinfo.gov/content/pkg/FR-2008-11-20/pdf/E8-27771.pdf Amendments to Executive Order 9397 Relating to Federal Agency Use of Social Security Numbers], 73 Fed. Reg. 70239 (Nov. 20, 2008).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*2020-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-2%2C%20Protected%20Materials%20CLEAN%2012%2028%202020.pdf Protected Materials in Public Rulemaking Dockets]<br />
*2021-6 [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
</div><br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Circular A-108] (2016).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf Implementation of the Privacy Act of 1974, Supplementary Guidance], 40 Fed. Reg. 56741 (Dec. 4, 1975).<br />
*''Revised Supplemental Guidance for Conducting Matching Programs'', 47 Fed. Reg. 21656 (May 19, 1982).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance1983.pdf Debt Collection Act Guidelines], 48 Fed. Reg. 15556 (Apr. 11, 1983).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation_guidelines.pdf Privacy Act Implementation Guidelines and Responsibilities], 40 Fed. Reg. 28948 (July 9, 1975); supplemented at:<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/implementation1974.pdf 40 Fed. Reg. 56741] (1975).<br />
**49 Fed. Reg. 12338 (1984).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf 54 Fed. Reg. 25818] (1989).<br />
*''Management of Federal Information Resources'', Circular A130, 50 Fed. Reg. 52730 (Dec. 24, 1985).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/guidance_privacy_act.pdf Final Guidance on Privacy Act Implications of “Call Detail” Programs], 52 Fed. Reg. 12290 (Apr. 20, 1987).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/final_guidance_pl100-503.pdf Final Guidance Interpreting the Provisions of Pub. L. No. 100-503, the Computer Matching and Privacy Protection Act of 1988], 54 Fed. Reg. 25818 (June 19, 1989).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/computer_amendments1991.pdf The Computer Matching and Privacy Protection Amendments of 1990 and the Privacy Act of 1974], 56 Fed. Reg. 18599 (Apr. 23, 1991).<br />
*''Proposed Revision of OMB Circular A130'', 57 Fed. Reg. 18296 (Apr. 29, 1992).<br />
*[https://www.govinfo.gov/content/pkg/FR-1996-02-20/pdf/96-3645.pdf Management of Federal Information Resources], 61 Fed. Reg. 6428 (Feb. 20, 1996).<br />
*M-0105, [https://www.whitehouse.gov/wp-content/uploads/2017/11/2001-M-01-05-Guidance-on-Inter-Agency-Sharing-of-Personal-Data-Protecting-Personal-Privacy.pdf Guidance on Inter-Agency Sharing of Personal Data—Protecting Personal Privacy] (2000).<br />
*M-0322, [https://www.whitehouse.gov/wp-content/uploads/2017/11/203-M-03-22-OMB-Guidance-for-Implementing-the-Privacy-Provisions-of-the-E-Government-Act-of-2002-1.pdf Guidance for Implementing the Privacy Provisions of the E-Government Act of 2002] (2003).<br />
*[https://www.govinfo.gov/content/pkg/FR-2016-07-28/pdf/2016-17874.pdf#page=1 Revision of OMB Circular No. A-130 “Managing Information as a Strategic Resource”], 81 Fed. Reg. 49689 (July 28, 2016).<br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports on E-Government Act Implementation from 2003-2015]<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/egov_docs/egov_implementation_report_6_17_16.pdf 2015 Annual Report to Congress: E-Government Act Implementation]<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/egov/documents/omb-fy-2016-egov-act-report.pdf 2016 Annual Report to Congress: E-Government Act Implementation]<br />
*M-21-04, [https://www.whitehouse.gov/wp-content/uploads/2020/11/M-21-04.pdf Modernizing Access to and Consent for Disclosure of Records Subject to the Privacy Act] (2020).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.ncjrs.gov/pdffiles1/Digitization/49602NCJRS.pdf Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission] (1977).<br />
*Gen. Accounting Office, GAO/PEMD-87-2, [https://www.gao.gov/assets/150/144893.pdf Computer Matching: Assessing its Costs and Benefits] (1986).<br />
*Gen. Accounting Office, GAO/GGD-91-48, [https://www.gao.gov/assets/220/213974.pdf Peer Review: Compliance with the Privacy Act and the Federal Advisory Committee Act] (1991).<br />
*Gen. Accounting Office, GAO-03-304, [https://www.gao.gov/assets/240/238818.pdf Privacy Act: OMB Leadership Needed to Improve Agency Compliance] (2003).<br />
*[https://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf A Citizen’s Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records], Report by the Comm. on Oversight and Gov’t Reform, 112th Cong. (2012).<br />
*Dep’t of Justice, [https://www.justice.gov/opcl/file/793026/download Overview of the Privacy Act of 1974] (2015).<br />
</div><br />
<br />
===Selected Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Lillian R. Bevier, [https://core.ac.uk/download/pdf/73966670.pdf Information about Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection], 4 Wm. & Mary Bill Rights J. 455 (1991).<br />
*Babette Boliek, ''Prioritizing Privacy in the Courts and Beyond'', 103 Cornell L. Rev. 1101 (2018).<br />
*Jonathan C. Bond, Note, [http://www.gwlr.org/wp-content/uploads/2012/08/76-5-Bond.pdf Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century], 76 Geo. Wash. L. Rev. 1232 (2008).<br />
*William S. Challis & Ann Cavoukian, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1148&context=jitpl The Case for a U.S. Privacy Commissioner: A Canadian Commissioner’s Perspective], 19 J. Marshall J. Computer & Info. L. 1 (2000).<br />
*Todd Robert Coles, Comment, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1848&context=aulr Does the Privacy Act of 1974 Protect Your Right to Privacy?: An Examination of the Routine Use Exemption], 40 Am. U. L. Rev. 957 (1991).<br />
*John M. Eden, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1140&context=dltr When Big Brother Privatizes: Commercial Surveillance, the Privacy Act of 1974, and the Future of RFID], 2005 Duke L. & Tech. Rev. 20 (2005).<br />
*Haeji Hong, [https://www.uakron.edu/dotAsset/727663.pdf Dismantling the Private Enforcement of the Privacy Act of 1974: Doe v. Chao], 38 Akron L. Rev. 71 (2005).<br />
*Margaret Hu, ''The Ironic Privacy Act'', 96 Wash. U.L. Rev. 1267 (2019).<br />
*Joseph V. Kaplan & John Mahoney, ''Reckless Disregard: Intentional and Willful Violations of the Privacy Act’s Investigatory Requirements'', 44 Fed. Law. No. 4, at 38 (1997).<br />
*Alex Kardon, [http://www.harvard-jlpp.com/wp-content/uploads/2013/10/KardonFinal.pdf Damages under the Privacy Act: Sovereign Immunity and a Call for Legislative Reform], 34 Harv. J. L. & Pub. Pol’y 705 (2011).<br />
*Flavio Komuves, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=1243&context=jitpl We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers], 16 J. Marshall J. Computer & Info. L. 529 (1998).<br />
*Frederick Z. Lodge, Note, [https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2579&context=flr Damages Under the Privacy Act of 1974: Compensation and Deterrence], 52 Fordham L. Rev. 611 (1984).<br />
*Caleb A. Seeley, Note, [https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-91-5-Seeley.pdf Once More unto the Breach: The Constitutional Right to Informational Privacy and the Privacy Act], 91 N.Y.U. L. Rev. 1355 (2016).<br />
*Lisa A. Reilly, ''The Government in the Sunshine Act and the Privacy Act'', 55 Geo. Wash. L. Rev. 955 (1987).<br />
*Nicole M. Quallen, [https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4408&context=nclr Damages under the Privacy Act: Is Emotional Harm Actual], 88 N.C. L. Rev. 334 (2009).<br />
*Paul M. Schwartz, [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2572&context=facpubs Privacy and Participation: Personal Information and Public Sector Regulation in the United States], 80 Iowa L. Rev. 553 (1995).<br />
*Daniel Solove, [https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2085&context=faculty_publications Identity Theft, Privacy, and the Architecture of Vulnerability], 54 Hastings L.J. 1227 (2003).<br />
*Julianne M. Sullivan, Comment, [https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=cwlr Will the Privacy Act of 1974 Still Hold Up in 2004? How Advancing Technology Has Created a Need for a Change in the “System of Records” Analysis], 39 Cal. W. L. Rev. 395 (2003).<br />
*Thomas M. Susman, [https://repository.jmls.edu/cgi/viewcontent.cgi?article=2035&context=lawreview Privacy Act and the Freedom of Information Act: Conflict and Resolution], 21 J. Marshall L. Rev. 703 (1988).<br />
*Ari Ezra Waldman, ''Privacy Law's False Promise'', 97 Wash. U.L. Rev. 773 (2020).<br />
</div><br />
<br />
===Selected Cases Not Included in the Text===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*''Stiles v. Atlanta Gas Light Co.'', 453 F. Supp. 798 (N.D. Ga. 1978).<br />
*''Zeller v. United States'', 467 F. Supp. 487 (E.D.N.Y. 1979).<br />
*''Albright v. United States'', 631 F.2d 915 (D.C. Cir. 1980).<br />
*''Lovell v. Alderete'', 630 F.2d 428 (5th Cir. 1980).<br />
*''Exner v. FBI'', 612 F.2d 1202 (9th Cir. 1980).<br />
*''United States v. Miller'', 643 F.2d 713 (10th Cir. 1981).<br />
*''Fitzpatrick v. United States'', 665 F.2d 327 (11th Cir. 1982).<br />
*''Clarkson v. IRS'', 678 F.2d 1368 (11th Cir. 1982).<br />
*''Johnson v. U.S. Dep’t of the Treasury'', 700 F.2d 971 (5th Cir. 1983).<br />
*''Thomas v. U.S. Dep’t of Energy'', 719 F.2d 342 (10th Cir. 1983).<br />
*''Molerio v. FBI'', 749 F.2d 815 (D.C. Cir. 1984).<br />
*''Elm v. Nat’l R.R. Passenger Corp.'', 732 F.2d 1250 (5th Cir. 1984).<br />
*''Doe v. Naval Air Station'', 768 F.2d 1229 (11th Cir. 1985).<br />
*''Vymetalik v. FBI'', 785 F.2d 1090 (D.C. Cir. 1986).<br />
*''Doe v. United States'', 821 F.2d 694 (D.C. Cir. 1987).<br />
*''Doe v. Stephens'', 851 F.2d 1457 (D.C. Cir. 1988).<br />
*''Johnston v. Horne'', 875 F.2d 1415 (9th Cir. 1989).<br />
*''Pototsky v. U.S. Dep’t of the Navy'', 717 F. Supp. 20 (D. Mass. 1989).<br />
*''Covert v. Harrington'', 876 F.2d 751 (9th Cir. 1989).<br />
*''Quinn v. Stone'', 978 F.2d 126, 133 (3rd Cir. 1992).<br />
*''Kassel v.'' U.S. ''Dep’t of Veterans Affairs'', No. 87-217-S (D.N.H. Mar. 30, 1992).<br />
*''United States v. Trabert'', 978 F. Supp. 1368 (D. Colo. 1997).<br />
*''United States v. Gonzalez'', No. 76-132 (M.D. La. Dec. 21, 1976).<br />
*''In re Mullins (Tamposi Fee Application)'', 84 F.3d 1439 (D.C. Cir. 1996).<br />
*''Alexander v. FBI'', 971 F. Supp. 603 (D.D.C. 1997).<br />
*''Shannon v. General Elec. Co.'', 812 F. Supp. 308 (N.D.N.Y. 1993).<br />
*''Henke v. U.S. Dep’t of Commerce'', 83 F.3d 1453 (D.C. Cir. 1996).<br />
*[http://www.vawd.uscourts.gov/OPINIONS/WILSON/600CV0005(3).PDF Falwell v. Exec. Office of the President], 113 F. Supp. 2d 967 (W.D. Va. 2000).<br />
*''Dale v. Exec. Office of the President'', 164 F. Supp. 2d 22 (D.D.C. 2001).<br />
*''Trulock v. DOJ'', No. 00-2234, slip op. (D.D.C. Sept. 18, 2001).<br />
*''Tripp v. Exec. Office of the President'', 200 F.R.D. 140 (D.D.C. 2001).<br />
*''Broaddrick v. Exec. Office of the President'', 139 F. Supp. 2d 55 (D.D.C. 2001).<br />
*''Flowers v. Exec. Office of the President'', 142 F. Supp. 2d 38 (D.D.C. 2001).<br />
*''Jones v. Exec. Office of the President'', 167 F. Supp. 2d 10 (D.D.C. 2001).<br />
*''Sculimbrene v. Reno'', 158 F. Supp. 2d 26 (D.D.C. 2001).<br />
*''Schwarz v. U.S. Dep’t of the Treasury'', 131 F. Supp. 2d 142 (D.D.C. 2000).<br />
*''Cobell v. Norton'', 157 F. Supp. 2d 82 (D.D.C. 2001).<br />
*''Cummings v. U.S. Dep’t of the Navy'', 279 F.3d 1051 (D.C. Cir. 2002).<br />
*''McCready v. Principi'', 297 F. Supp. 2d 178 (D.D.C. 2003).<br />
*''Chang v. U.S. Dep’t of the Navy'', 314 F. Supp.2d 35 (D.D.C. 2004).<br />
*''Maydak v. United States'', 363 F.3d 512 (D.C. Cir. 2004).<br />
*[https://www.supremecourt.gov/opinions/03pdf/02-1377.pdf Doe v. Chao], 540 U.S. 614 (2004).<br />
*''NASA v. Nelson'', 562 U.S. 134 (2011).<br />
*[https://www.supremecourt.gov/opinions/11pdf/10-1024.pdf Fed. Aviation Admin. v. Cooper], 132 S. Ct. 1441 (2012).<br />
*''Logan v. U.S. Dep’t of Veterans Affairs'', 357 F. Supp. 2d 149 (D.D.C. 2004).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2006/03/13/0335877.pdf Oja v. U.S. Army Corps of Engineers], 440 F.3d 1122 (9th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/013337AFDE8A8304852574400044F8CC/$file/04-5425a.pdf McCready v. Nicholson], 465 F.3d 1 (D.C. Cir. 2006).<br />
*[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2006/D01-30/C:04-3888:J:_:aut:T:op:N:0:S:0 Bassiouni v. FBI], 436 F.3d 712 (7th Cir. 2006).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/E94B1B7BAE4935098525744000455619/$file/06-5085b.pdf Sussman v. U.S. Marshals Serv.], 494 F.3d 1106 (D.C. Cir 2007).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/9F94563D7D135A85852578000052F342/$file/07-5257-1132633.pdf Wilson v. Libby], 535 F.3d 697 (D.C. Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2008/05/02/0615191.pdf Lane v. U.S. Dep’t of the Interior], 523 F.3d 1128 (9th Cir. 2008).<br />
*[http://media.ca8.uscourts.gov/opndir/08/03/071576P.pdf Doe v. U.S. Dep’t of Veterans Affairs], 519 F.3d 456 (8th Cir. 2008).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2009/05/21/06-15967.pdf Rouse v. U.S. Dep’t of State], 567 F.3d 408 (9th Cir. 2009).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/EAC6966EA3FE7C2885257807005C6E66/$file/07-5352-1285040.pdf Maydak v United States], 630 F.3d 166 (D.C. Cir. 2010).<br />
*[http://media.ca11.uscourts.gov/opinions/pub/files/200916154.pdf Speaker v. U.S. Dep’t of Health and Human Serv. Ctr. for Disease Control and Prevention], F.3d 1371 (11th Cir. 2010).<br />
*[https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0562-58 Sieverding v. DOJ], 693 F. Supp. 2d 93 (D.D.C. 2010).<br />
*[http://www.opn.ca6.uscourts.gov/opinions.pdf/11a0098p-06.pdf Shearson v. DHS], 638 F.3d 498 (6th Cir. 2011).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir. 2015).<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/57E67EBF550EDDAB8525822C005378F2/$file/16-5045-1716627.pdf Liff v. Office of Inspector Gen. for the U.S. Dep’t of Labor], 881 F.3d 912 (D.C. Cir. 2018).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A108/omb_circular_a-108.pdf Fazaga v. FBI], 916 F.3d 1201 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/22/17-17349.pdf Rojas v. FAA], 941 F.3d 392 (9th Cir. 2019).<br />
*[http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/18-15416.pdf Garris v. FBI], 937 F.3d 1284 (9th Cir. 2019).<br />
*[https://law.justia.com/cases/federal/appellate-courts/cadc/17-5117/17-5117-2019-06-21.html In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig.], 928 F.3d 42 (D.C. Cir. 2019).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Privacy Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a. Records maintained on individuals]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Paperwork_Reduction_Act&diff=1673Paperwork Reduction Act2023-08-15T20:38:09Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim 3501–3521] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg2812.pdf Pub. L. No. 96-511], 94 Stat. 2812, Dec. 11, 1980; amended by [https://history.nih.gov/research/downloads/PL99-591.pdf Pub. L. No. 99-591], Title I, § 101(m), 100 Stat. 3341-308, 3341-335, Oct. 18, 1986; amended and re-codified by [https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13], § 2, 109 Stat. 163, May 22, 1995; amended by [https://www.govinfo.gov/content/pkg/PLAW-106publ398/pdf/PLAW-106publ398.pdf Pub. L. 106-398], Sec. 1 [[div. A], title X, §§ 1064(a)-(b)], 114 Stat. 1654, 1654A-275, Oct. 30, 2000; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ198/pdf/PLAW-107publ198.pdf Pub. L. No. 107-198], §§ 2–3, 116 Stat. 732, June 28, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ217/pdf/PLAW-107publ217.pdf Pub. L. No. 107-217], § 3(1), 116 Stat. 1301, Aug. 21, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ296/pdf/PLAW-107publ296.pdf Pub. L. No. 107-296], § 1005(c), 116 Stat. 2273, Nov. 25, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ347/pdf/PLAW-107publ347.pdf Pub. L. No. 107-347], title III, § 305(c)(3), 116 Stat. 2961, Dec. 17, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-109publ435/pdf/PLAW-109publ435.pdf Pub. L. No. 109-435], Title VI, § 604(e), 120 Stat. 3242, Dec. 20, 2006; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ289/pdf/PLAW-110publ289.pdf Pub. L. No. 110-289], Div. A, Title II, § 1216(e), 122 Stat. 2792, July 30, 2008; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ203/pdf/PLAW-110publ203.pdf Pub. L. No. 111-203], Title III, Subtitle A, § 315, Title X, Subtitle H, § 1100D, 124 Stat. 1524, 124 Stat. 2111, July 21, 2010; amended by [https://www.govinfo.gov/content/pkg/PLAW-113publ235/pdf/PLAW-113publ235.pdf Pub. L. No. 113-235], 128 Stat. 2537, Dec. 16, 2014; amended by [https://www.govinfo.gov/content/pkg/PLAW-115publ435/pdf/PLAW-115publ435.pdf Pub. L. No. 115-435], Title II, § 202, 132 Stat. 5534, Jan. 14, 2019.<br />
<br />
'''Lead Agency:''' <br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Management and Budget, Office of Information and Regulatory Affairs]<br />
==Overview==<br />
One of the main purposes of the Paperwork Reduction Act (PRA) is to “minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons . . . ; ensure the greatest possible public benefit . . . of information collected . . . ; [and] and minimize the cost to the Federal Government of the creation, collection, maintenance, use, dissemination, and disposition of information” (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501]). The PRA statutorily established the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and assigned it responsibility for coordinating government information policies, including approving agency collections of information. The PRA applies to all agencies in the executive branch, as well as to the independent regulatory agencies. Only very narrow functions are exempted from its coverage: (1) federal criminal matters or actions; (2) civil and administrative actions and investigations of specified individuals or entities; (3) compulsory process issued in connection with antitrust proceedings; and (4) federal intelligence activities carried out under presidential executive order (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518]).<br />
<br />
In June 2019, OIRA launched an online [https://pra.digital.gov/about/ Paperwork Reduction Act Guide]. The PRA Guide is a plain language guide which answers the most common questions, like “What is the PRA for?”, “Do I need clearance?”, and “What’s the process?” It aims to give federal employees a strong understanding of the PRA.<br />
<br />
===Basic Clearance Requirement===<br />
The PRA assigns to OIRA the function of approving information collections. It provides that agencies “shall not conduct or sponsor the collection of information” without first obtaining the actual or inferred approval of the Director of OMB, who will determine whether the information collection is necessary for the proper performance of the agency’s functions ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(a)(2)]). The PRA (§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(3)]) defines “collection of information” as: <blockquote>The obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling it either—answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.</blockquote>The 1995 amendments amended the definition of “collection of information” in § 3502(3) explicitly to include requiring persons to collect information for the purpose of disclosing it to the public or third parties as opposed to federal agencies only, thereby overruling [https://cdn.loc.gov/service/ll/usrep/usrep494/usrep494026/usrep494026.pdf Dole v. United Steelworkers of America], 494 U.S. 26 (1990).<br />
<br />
The PRA forbids OMB from approving any information collection for a period of more than three years. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim 3507(g)]. Failure to obtain OMB approval of a collection of information triggers operation of the PRA’s “public protection provision” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512]), which provides that “no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if—(1) the collection of information does not display a valid control number assigned by the Director [of OMB] . . . ; or (2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.” Although there have been numerous attempts to utilize the public protection provision to challenge agency collections of information or as a defense to actions for the failure to file required documents or for filing false information, they have been unsuccessful almost without exception. Indeed, the only exceptions appear to be two cases prosecuting persons for mining on Forest Service land without having filed the required plan of operations, a requirement that did not contain a valid control number. ''See United States v. Hatch'', 919 F.2d 1394 (9th Cir. 1990); ''United States v. Smith'', 866 F.2d 1092 (9th Cir. 1989).<br />
<br />
===Clearance Procedure===<br />
<br />
The PRA provides a general set of clearance procedures for approving agency information collections, with more specific procedures prescribed for information collections imposed through notice-and-comment rulemakings.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(d)] prescribes the following procedure for information collections contained in rules promulgated following notice and comment:<br />
<br />
#Each agency shall forward to OMB a copy of any proposed rule which contains a collection of information, and any information that OMB deems necessary to make the determination. This information must be transmitted no later than publication of the notice of proposed rulemaking (NPRM) in the ''Federal Register''.<br />
#Within 60 days after the notice of proposed rulemaking is published in the ''Federal Register'', OMB may file public comments on the collection of information contained in the proposed rule.<br />
#When a final rule is published in the ''Federal Register'', the agency shall explain how any collection of information contained in the final rule responds to the comments filed by OMB or the public, or the reason the comments were rejected.<br />
#If OMB has received notice and failed to comment on an agency rule within 60 days after the notice of proposed rulemaking, OMB may not disapprove any collection of information specifically contained in that rule.<br />
#However, OMB may disapprove a collection of information if (A) the collection of information was not specifically required by an agency rule; (B) the agency failed to comply with the submission requirements; (C) OMB finds within 60 days after publication of the final rule that the agency’s response to OMB’s comments were unreasonable; or (D) OMB determines the agency has substantially modified the collection of information in the final rule without giving OMB 60 days to review the modified requirement.<br />
#OMB’s decision to disapprove the collection of information in the rule, and its reasons for that decision, must be made publicly available and include an explanation of the reasons for such decision. But OMB’s decision to approve or not act upon a rule is not subject to judicial review.<br />
<br />
OMB’s regulations implementing the PRA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320]) have added certain requirements to the clearance process for collections of information contained in proposed agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_111&rgn=div8 5 C.F.R. § 1320.11]), current agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 5 C.F.R. § 1320.12]), and clearance of collections other than in proposed or current rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_110&rgn=div8 5 C.F.R. § 1320.10]).<br />
<br />
*Agencies should submit collections of information contained in proposed rules to the ''Federal Register'' for public comment. The preamble to the NPRM shall state that the collection of information has been submitted for OMB review and direct that comments be filed with the desk officer for the agency in OIRA/OMB (§ 1320.11(a)). OMB will provide at least 30 days for public comment (§ 1320.11(e)).<br />
*Upon publication of the final rule, the agency shall explain how the collection of information in the final rule responds to comments and identify and explain modifications made to the rule (§ 1320.11(f)).<br />
*On or before the date of publication of the final rule, the agency will submit the final rule to OMB, unless the approved proposed rule was not materially changed. OMB then has 60 days to approve, disapprove, or order a change in the final rule (§ 1320.11(h)). If OMB approves, it will assign an OMB control number (§ 1320.11(i)).<br />
<br />
For information collections that are not contained in new rules promulgated after notice and comment, there is a different process:<br />
<br />
*On or before the day an information collection proposal is submitted to OMB for clearance, the agency must send a notice to the ''Federal Registe''r, in which the agency advises the public that OMB approval has been requested and that the public has 30 to submit comments on the proposal to the OIRA/OMB desk officer for the agency (§ 1320.10(a)).<br />
*Within 60 days after receipt of the agency’s submission, OMB will notify the agency of its decision to approve or disapprove, in whole or in part, the information collection. OMB will provide at least 30 days for public comment before making a decision (§ 1320.10(b)).<br />
*If OMB does not act within the 60-day period, the agency can ask OMB to assign the required control number (valid for one year in these circumstances), and OMB must do so without delay (§ 1320.10(c)).<br />
<br />
OMB has also developed procedures that govern clearance for information collections in existing rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 § 1320.12]). The procedures are intended to prevent expiration of OMB approval for an information collection before the agency has undertaken the necessary administrative procedure to extend OMB’s three-year approval or effect a repeal or amendment of the rule containing the collection provision. The agency is required to seek public comment on the requirement and initiate the OMB review process not later than 60 days before the existing OMB approval expires. If OMB indicates disapproval of the existing information collection provision, OMB must publish an explanation in the ''Federal Register'' and instruct the agency to initiate a rulemaking to amend or rescind the provision, consistent with the [[Administrative Procedure Act]] (APA) or other applicable requirements.<br />
<br />
Finally, OMB regulations ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_16&rgn=div8 § 1320.6(e)]) make clear that the public protection provision in § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim 3512] of the PRA does not preclude the government from imposing a penalty for failing to comply with a collection of information that is mandated by statute, even in the absence of a valid OMB control number. Several courts have so held: [http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2007/D11-14/C:06-3635:J:Easterbrook:aut:T:op:N:0:S:0 United States v. Patridge], 507 F.3d 1092 (7th Cir. 2007), ''reh’g and reh’g en banc denied, cert. denied'', 552 U.S. 1280, ''reh’g denied'', 553 U.S. 1062, ''cert. denied'', 555 U.S. 909, ''post-conviction relief denied'', 2010 WL 3025043; ''Salberg v. United States'', 969 F.2d 379, 384 (7th Cir. 1992); ''United States v. Neff'', 954 F.2d 698, 699–700, (11th Cir. 1992); ''United States v. Hicks'', 947 F.2d 1356, 1359 (9th Cir. 1991); ''United States v. Kerwin'', 945 F.2d 92 (5th Cir. 1991); ''United States v. Wunder'', 919 F.2d 34, 38 (6th Cir. 1990).<br />
<br />
===Alternative Procedures===<br />
The PRA contains several variations from the general review procedures for review of agency information collections. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(j)] establishes a “fast-track” review procedure for emergency situations, which is available on request by agency heads. OMB regulations provided a stringent test for granting such requests ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_113&rgn=div8 § 1320.13]).<br />
<br />
The PRA also authorizes the OMB director to delegate his authority to approve proposed collections of information to the senior official an agency designates as its Chief Information Officer ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506(a)(2)]), if that person “is sufficiently independent of program responsibility to evaluate fairly whether proposed information collection requests should be approved and has sufficient resources to carry out this responsibility effectively” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(i)]). Such an official must comply with OMB’s regulations in reviewing his or her agency’s information collection provisions (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_17&rgn=div8 § 1320.7]).<br />
<br />
OMB’s general clearance procedures are subject to the PRA’s provision that independent regulatory agencies may, by majority vote, override an OMB decision disapproving a proposed information collection (5 U.S.C.[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(f)]; 5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_115&rgn=div8 § 1320.15]). The PRA also contains the only extant statutory definition of “independent regulatory agency” in 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(5)], which has been cross-referenced in a number of other statutes.<br />
<br />
===Agency Certifications===<br />
The regulations (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=502d3fc456f2ea6fe5ea737ddd44990b&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(1)]) further describe the standard: an agency must show that all reasonable steps have been taken to ensure that the collection of information is the least burdensome necessary, that it is not duplicative of information otherwise accessible to the agency, and that the collection of information has practical utility.<br />
<br />
In addition, OMB has established general guidelines (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(2)]) that will be applied unless the agency can demonstrate the need for an exception to them. Among other things, OMB will generally not approve a collection of information<br />
<br />
#that requires reporting more often than quarterly;<br />
#that requires a written response in fewer than 30 days after receipt;<br />
#that requires respondents to submit more than one original and two copies of a document;<br />
#that requires persons to retain records (other than health, medical, contract, grant, or tax records) for more than three years;<br />
#that is not a statistical survey designed to produce valid and reliable statistical results;<br />
#requires the use of a statistical data classification that has not been reviewed and approved by OMB;<br />
#that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or<br />
#that requires respondents to submit proprietary, trade secret, or other confidential information, unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.<br />
<br />
Also pertinent to OMB’s authority is § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim 3518(e)] of the PRA, which states:<blockquote>Nothing in [the PRA] shall be interpreted as increasing or decreasing the authority of the President, the Office of Management and Budget or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies, and offices, including the substantive authority of any Federal agency to enforce the civil rights laws.</blockquote><br />
<br />
===Information Management===<br />
The PRA also authorizes OMB to develop and implement uniform policies on information resources management by federal agencies. OMB has done this through [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular A-130], which sets out various policies agencies are to use in managing government information. <br />
<br />
==Legislative History==<br />
The Paperwork Reduction Act of 1980 replaced the Federal Reports Act of 1942 ([http://uscode.house.gov/statviewer.htm?volume=56&page=1078# Pub. L. No. 77-831]) as the basic statute controlling paperwork requirements imposed on the public by the federal government. The PRA was amended significantly in 1986 and in minor ways in ensuing years, and then amended and completely recodified in 1995.<br />
<br />
The PRA was originally enacted as part of the regulatory reform movement of the 1970s. Reacting to growing public concern over the burden imposed by federal information collections, Congress established the Commission on Federal Paperwork in late 1974. The Commission, in its report in 1977, made 770 recommendations for reducing the federal paperwork burden. Legislation implementing some of the Recommendations was introduced in both the 95th and 96th Congresses. The PRA was passed in November 1980 and signed by President Carter on December 11, 1980. ''See'' William Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
<br />
Conflicts over the interpretations of certain provisions of the PRA resulted in amendments enacted in 1986. Among the amendments was language clarifying the relationship between the procedures required for clearance of information collections in proposed rules and other proposed information collections.<br />
<br />
The 1995 amendments updated, strengthened, and completely recodified the Paperwork Reduction Act of 1980. The goals were the same as in the 1980 Act—to strengthen OMB and agency paperwork reduction efforts, to improve OMB and agency information resources management, and to encourage and provide for public participation in reduction efforts and management decisions. In order to achieve these goals, the 1995 Act clarified the scope of OMB review, enhanced opportunities for public participation, expanded the PRA’s public protection provisions, and specified the agency paperwork reduction responsibilities.<br />
<br />
It also settled the major question of whether agency rules that require businesses or individuals to maintain information for the benefit of third parties or the public were covered by the PRA. The Supreme Court had ruled in ''Dole v. United Steelworkers'', 494 U.S. 26 (1990), that the PRA did not so require. But the 1995 amendments made clear that it does now.<br />
<br />
In 2000, Congress changed references from “chapter” to “subchapter.”<br />
<br />
In 2002, Congress made a number of minor amendments. One eliminated references to the Computer Security Act of 1987 ([http://uscode.house.gov/statutes/pl/100/235.pdf Pub. L. No. 100-235]) and the Clinger-Cohen Act of 1996 (40 U.S.C. § 1401) and substituted references to sections 11332 and 11103 of title 40.<br />
<br />
In 2006, Congress substituted “Postal Regulatory Commission” for “Postal Rate Commission” and in 2008 “Federal Housing Finance Agency” for “Federal Housing Finance Board.”<br />
<br />
In 2010, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act ([https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203]), changes were made to the PRA to take account of the creation of the Bureau of Consumer Finance Protection and new responsibilities of the Office of the Comptroller of the Currency.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Paperwork and Redtape Reduction Act of 1979'', Hearings Before Subcomm. on Federal Spending Practices and Open Gov’t of the S. Comm. on Gov’tal Affairs, 96th Cong. (1979).<br />
*''Paperwork Reduction Act of 1980'', Hearings on H.R.6410 Before Subcomm. of the H. Comm. on Gov’t Operations, 96th Cong. (1980).<br />
*Report on the Paperwork Reduction Act, H.R. Rep. No. 835 (1980).<br />
*Report on the Paperwork Reduction Act of 1980, S. Rep. No. 930 (1980).<br />
*''The Federal Paperwork Burden: Identifying the Major Problems'', Hearings Before the Subcomm. on Fed. Expenditures, Research and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Legislation and Nat’l Sec. of the H. Comm. on Gov’t Operations, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Fed. Expenditures, Research, and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1982).<br />
*''Oversight of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Info. Mgmt. and Regulatory Affairs of the S. Comm. on Gov’tal Affairs, 98th Cong. (1983).<br />
*''Report to Accompany S.2230'', S. Comm. on Gov’tal Affairs, 99th Cong., 2d Sess. (1986).<br />
*''Reauthorization of the Paperwork Reduction Act'', Hearings Before the Subcomm. on Gov’t Info. and Regulations, S. Comm. on Gov’tal Affairs, 101st Cong. (1989).<br />
*''Reauthorization of OMB’s Office of Information and Regulatory Affairs'': Hearings Before the S. Comm. on Gov’tal Affairs, 101st Cong. (1990).<br />
*Federal Information Resources Management Act, S. Rep. No. 101-487 (1990).<br />
*Paperwork Reduction and Federal Information Resources Management Act of 1990, H. Rep. No. 101-927 (1990).<br />
*''Restraining Paperwork Burdens on Small Business: Implementation of the “Paperwork Reduction Act of 1980” and Recommendations to Make It More Effective'', Hearings Before the H. Comm. on Small Bus., 102nd Cong. (1991).<br />
*''The Paperwork Reduction Act and Its Impact on Small Business'', Hearing Before the H. Comm. on Small Bus., 103d Cong. (1993).<br />
*Paperwork Reduction Act of 1994, [https://www.congress.gov/103/bills/s560/BILLS-103s560rs.pdf S. Rep. No. 103-392] (1994).<br />
*''The Paperwork Reduction Act'', Hearing Before the H. Comm. on Small Bus., 104th Cong. (1995).<br />
*H.R. 830, ''Paperwork Reduction Act and Risk Assessment and Cost/Benefit Analysis for New Regulations'', Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Gov’t Reform and Oversight Comm., 108th Cong. (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/srpt8/CRPT-104srpt8.pdf S. Rep. No. 104-8] (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H. R. Rep. No. 104-37] (1995).<br />
*Conference Report on S.244, Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt99/CRPT-104hrpt99.pdf H. R. Rep. No. 104-99] (1995).<br />
*Small Business Paperwork Reduction Act Amendments of 1998, [https://www.congress.gov/105/crpt/hrpt462/CRPT-105hrpt462-pt1.pdf H.R. Rep. No. 105-462] (1998).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-106hhrg70435/pdf/CHRG-106hhrg70435.pdf Reinventing Paperwork?: The Clinton-Gore Administration’s Record on Paperwork Reduction], Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 106th Cong. (2000).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg79868/pdf/CHRG-107hhrg79868.pdf Paperwork Inflation—Past Failures and Future Plans]: Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2001).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg85610/pdf/CHRG-107hhrg85610.pdf Paperwork Inflation—the Growing Burden on America]: Hearing Before the Subcomm. on Energy, Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2002).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg87418/pdf/CHRG-108hhrg87418.pdf Mid-Term Report Card: Is the Bush Administration Doing Enough on Paperwork Reduction?], Hearing Before the H. Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs of the Comm. on Gov’t Reform, 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg90015/pdf/CHRG-108hhrg90015.pdf Paperwork and Regulatory Improvements Act of 2003], Hearing Before the H. Gov’t Reform Comm., 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg95798/pdf/CHRG-108hhrg95798.pdf What Is the Bush Administration’s Economic Growth Plan Component for Paperwork Reduction?], Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004).<br />
*Paperwork and Regulatory Improvements Act of 2004, [https://www.congress.gov/108/crpt/hrpt490/CRPT-108hrpt490-pt1.pdf H.R. Rep. No. 108-490] (2004).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22202/pdf/CHRG-109hhrg22202.pdf Less Is More: The Increasing Burden of Taxpayer Paperwork], Hearing Before the H. Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22572/pdf/CHRG-109hhrg22572.pdf Reducing the Paperwork Burden on the Public: Are Agencies Doing All They Can?], Hearing Before the Subcomm. on Regulatory Affairs of the H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg29707/pdf/CHRG-109hhrg29707.pdf The Paperwork Reduction Act at 25: Opportunities to Strengthen and Improve the Law], Hearing Before the Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2006).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg40601/pdf/CHRG-110hhrg40601.pdf Full Committee Hearing on Improving the Paperwork Reduction Act for Small Businesses], H. Comm. on Small Bus., 110th Cong. (2008).<br />
*[https://www.congress.gov/111/crpt/hrpt517/CRPT-111hrpt517.pdf Dodd-Frank Wall Street Reform and Consumer Protection Act: Conference Report to Accompany H.R. 4173], H. Comm. on Fin. Services 111th Cong. (2010).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg24759/pdf/CHRG-115hhrg24759.pdf Evaluating the Paperwork Reduction Act: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017) ([https://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=399797 video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg27068/pdf/CHRG-115hhrg27068.pdf Evaluating the Paperwork Reduction Act Part II: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017).<br />
</div><br />
<br />
===OMB/OIRA Documents and Resources===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
====OIRA Memoranda for the Heads of Executive Departments and Independent Regulatory Agencies====<br />
<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf Social Media, Web-Based Interactive Technologies, and the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf Information Collection Under the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/inforeg/PRA_Gen_ICRs_5-28-2010.pdf Paperwork Reduction Act–Generic Clearances] (May 28, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2011/m11-26.pdf New Fast-Track Process for Collecting Service Delivery Feedback Under the Paperwork Reduction Act] (June 15, 2011).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/memos/reducing-reporting-and-paperwork-burdens.pdf Reducing Reporting and Paperwork Burdens] (June 22, 2012).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/memos/2014/web-based-interactive-technologies-data-search-tools-calculators-paperwork-reduction-act.pdf Web-based Interactive Technologies: Data Search Tools, Calculators, and the Paperwork Reduction Act] (Sept. 5, 2014).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/pra_flexibilities_memo_7_22_16_finalI.pdf Flexibilities under the Paperwork Reduction Act for Compliance with Information Collection Requirements] (July 22, 2016)<br />
</div><br />
====Other OMB/OIRA Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular No. A-130: Managing Information as a Strategic Resource]<br />
*''Information Collection Review Handbook'' (1989); superseded by OMB/OIRA, ''The Paperwork Reduction Act, of 1995: Implementing Guidance'' (preliminary draft, Feb. 3, 1997).<br />
*https://www.whitehouse.gov/wp-content/uploads/2017/11/1998_OMB_Bulletin_No_98_03.pdf Bulletin 98-03, Fiscal Year 1997 Information Streamlining Plan and Information Collection Budget].<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/icb/2005_icb_final.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2005] (May 2005).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/icb/fy2006_icb_revised.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2006 (revised version)] (Dec. 2006).<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/pmc_survey_guidance_2006.pdf Questions and Answers When Designing Surveys for Information Collections] (Jan. 2006).<br />
*''Information Collection Budgets'' (fiscal years 1998–2014).<br />
*[https://www.usaid.gov/forms/omb-83-i OMB Form 83-I] (rev’d Feb. 2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-10.pdf Improving Access to Public Benefits Programs Through the Paperwork Reduction Act] (April 13, 2022)<br />
</div><br />
<br />
====[https://pra.digital.gov/ PRA Digital.gov Guide]====<br />
<br />
===ACUS Recommendations & Resources===<br />
<br />
*2012-4 [https://www.acus.gov/sites/default/files/documents/Final-Recommendation-2012-4-Paperwork-Reduction-Act.pdf Paperwork Reduction Act]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
*IIB-025 [https://www.acus.gov/sites/default/files/documents/25 PRA Basics.pdf Paperwork Reduction Act Basics] (2022)<br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/GGD 83-35, [https://www.gao.gov/assets/140/139988.pdf Implementing the Paperwork Reduction Act: Some Progress, But Many Problems Remain] (1983).<br />
*GAO/T-GGD-99-78, [https://www.gao.gov/assets/t-ggd-99-78.pdf Paperwork Reduction Act—Burden Increases and Unauthorized Information Collections], Testimony of L. Nye Stevens, Director, Federal Management and Workforce Issues, General Government Division before the House Subcomm. on Nat’l Econ. Growth, Nat. Resources and Regulatory Affairs; and the Subcomm. on Gov’t Mgmt., Info., and Tech. of the Comm. on Gov’t Reform (Apr. 15, 1999).<br />
*GAO/T-GGD-00-114, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-00-114/pdf/GAOREPORTS-T-GGD-00-114.pdf Paperwork Reduction Act: Burden Increases at IRS and Other Agencies] (2000).<br />
*GAO-02-651R, [https://www.gao.gov/assets/100/91241.pdf Paperwork Reduction Act: Changes Needed to Annual Report] (2002).<br />
*GAO-05-424, [https://www.gao.gov/assets/250/246399.pdf Paperwork Reduction Act: New Approach May Be Needed to Reduce Government Burden on Public] (2005).<br />
*GAO-05-909R, [https://www.gao.gov/assets/100/93398.pdf Paperwork Reduction Act: Subcommittee Questions Concerning the Act’s Information Collection Provisions] (2005).<br />
*GAO-06-974T, [https://www.gao.gov/assets/120/114436.pdf Paperwork Reduction Act: Increase in Estimated Burden Hours Highlights Need for New Approach] (2006).<br />
*GAO-07-62, [https://www.gao.gov/assets/260/253535.pdf Federal Information Collection: A Reexamination of the Portfolio of Major Federal Household Surveys Is Needed] (2006).<br />
*GAO-18-381, [https://www.gao.gov/assets/700/693057.pdf Paperwork Reduction Act: Agencies Could Better Leverage Review Processes and Public Outreach to Improve Burden Estimates] (2018)<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Comm’n on Fed. Paperwork, ''Final Summary Report'' (1977).<br />
*Comm’n on Fed. Paperwork, ''The Reports Clearance Process'' (1977).<br />
*Harold C. Relyea, Cong. Research Serv., RL30590, ''Paperwork Reduction Act Reauthorization and Government Information Management Issues'' (2007).<br />
*Curtis Copeland & Vanessa K. Burrows, Cong. Research Serv., R40636, ''Paperwork Reduction Act: OMB and Agency Responsibilities and Burden Estimates'' (2009).<br />
*Small Bus. Admin., Office of Advocacy, ''Small Business Paperwork: Problems and Progress'' (1983).<br />
*Office of Pers. Mgmt., [https://www.opm.gov/about-us/open-government/digital-government-strategy/fitara/paperwork-reduction-act-guide.pdf Paperwork Reduction Act (PRA) Guide] (2011).<br />
*Maeve P. Carey, Cong. Research Serv., IF11837, [https://crsreports.congress.gov/product/pdf/IF/IF11837#:~:text=The%20PRA%20requires%20agencies%2C%20when,required%20to%20provide%20the%20information The Paperwork Reduction Act and Federal Collections of Information: A Brief Overview] (2021)<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Eugene Bardach, ''Self-Regulation and Regulatory Paperwork, in Social Regulation: Strategies for Reform'' (E. Bardach and R. Kagan eds., Inst. for Contemporary Studies 1982).<br />
*Joseph D. Condon, ''[https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1100&context=mjeal Stop Regulating Government Paperwork With More Paperwork]'', 9 Mich. J. Env't. & Admin L. 213 (2019).<br />
*Pamela M. Foster, Comment, ''A Limit to OMB’s Authority Under the Paperwork Reduction Act in Dole v. United Steelworkers of America: A Step in the Right Direction'', 6 Admin. L. J. Am. U. 153 (1992).<br />
*William F. Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
*Murray A. Indick, Ronald J. Greene & Daniel Squire, ''The Economic Growth and Regulatory Paperwork Reduction Act of 1996'', 114 Banking L.J. 298 (1997).<br />
*Andrew L. Levy, ''The Paperwork Reduction Act of 1980: Unnecessary Burdens and Unrealized Efficiency'', 14 J. L. & Com. 99 (1994).<br />
*Jeffrey Lubbers, ''Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995'', 49 Admin. L. Rev. 111 (1997).<br />
*Richard M. Neustadt, ''Taming the Paperwork Tiger: An Experiment in Regulatory Management'', Regulation, Jan./Feb. 1981, at 28.<br />
*James T. O’Reilly, ''Who’s on First?: The Role of the Office of Management and Budget in Federal Information Policy'', 10 J. Legis. 95 (1983).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201988-10%20PERRITT%20Elec%20Acqu%20%2B%20Release%20of%20Info%201988%20ACUS%20601.pdf Electronic Acquisition and Release of Federal Agency Information] (Oct. 1, 1988) (report to ACUS).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201990-05%20PERRITT%20ELec%20Records%20Mgmt%20%2B%20Archives%201990%20ACUS%20389.pdf Federal Agency Electronic Records Management and Archives] (1990) (report to ACUS).<br />
*David Plocher, ''The Paperwork Reduction Act of 1995: A Second Chance for Information Resources Management (Reauthorization of the 1980 Act)'', 13 Gov’t Info. Q. 35 (1996).<br />
*Robert Rosacker & Thomas Davies, ''An Analysis of Federal Income Tax Complexity Utilizing Internal Revenue Service Estimates for Taxpayer Paperwork Burden'', 45 Oil & Gas Tax Q. 791 (1996).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/Draft-PRA-Report-2-15-12.pdf The Paperwork Reduction Act: Benefits, Costs and Directions for Reform, Government Information Quarterly] (Feb. 15, 2012) (report to ACUS).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS)<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
</div><br />
<br />
===Agency Regulations===<br />
Office of Management and Budget ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320])<br />
<br />
==Statutory Provisions==<br />
Paperwork Reduction Act<br />
<br />
Title 44 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim Chapter 35, Subchapter I—Federal Information Policy]<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501. Purposes]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim § 3502. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3503&num=0&edition=prelim § 3503. Office of Information and Regulatory Affairs]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim § 3504. Authority and functions of Director]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3505&num=0&edition=prelim § 3505. Assignment of tasks and deadlines]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506. Federal agency responsibilities]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507. Public information collection activities; submission to Director; approval and delegation]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3508&num=0&edition=prelim § 3508. Determination of necessity for information; hearing]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3509&num=0&edition=prelim § 3509. Designation of central collection agency]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3510&num=0&edition=prelim § 3510. Cooperation of agencies in making information available]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3511&num=0&edition=prelim § 3511. Establishment and operation of Government Information Locator Service]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512. Public protection]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3513&num=0&edition=prelim § 3513. Director review of agency activities; reporting; agency response]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3514&num=0&edition=prelim § 3514. Responsiveness to Congress]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3515&num=0&edition=prelim § 3515. Administrative powers]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim § 3516. Rules and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3517&num=0&edition=prelim § 3517. Consultation with other agencies and the public]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518. Effect on existing laws and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3519&num=0&edition=prelim § 3519. Access to information]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3520&num=0&edition=prelim § 3520. Establishment of task force on information collection and dissemination]<br />
</div></div>MGluthhttps://sourcebook.acus.gov/index.php?title=Paperwork_Reduction_Act&diff=1672Paperwork Reduction Act2023-08-15T20:32:55Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim 3501–3521] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg2812.pdf Pub. L. No. 96-511], 94 Stat. 2812, Dec. 11, 1980; amended by [https://history.nih.gov/research/downloads/PL99-591.pdf Pub. L. No. 99-591], Title I, § 101(m), 100 Stat. 3341-308, 3341-335, Oct. 18, 1986; amended and re-codified by [https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13], § 2, 109 Stat. 163, May 22, 1995; amended by [https://www.govinfo.gov/content/pkg/PLAW-106publ398/pdf/PLAW-106publ398.pdf Pub. L. 106-398], Sec. 1 [[div. A], title X, §§ 1064(a)-(b)], 114 Stat. 1654, 1654A-275, Oct. 30, 2000; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ198/pdf/PLAW-107publ198.pdf Pub. L. No. 107-198], §§ 2–3, 116 Stat. 732, June 28, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ217/pdf/PLAW-107publ217.pdf Pub. L. No. 107-217], § 3(1), 116 Stat. 1301, Aug. 21, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ296/pdf/PLAW-107publ296.pdf Pub. L. No. 107-296], § 1005(c), 116 Stat. 2273, Nov. 25, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ347/pdf/PLAW-107publ347.pdf Pub. L. No. 107-347], title III, § 305(c)(3), 116 Stat. 2961, Dec. 17, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-109publ435/pdf/PLAW-109publ435.pdf Pub. L. No. 109-435], Title VI, § 604(e), 120 Stat. 3242, Dec. 20, 2006; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ289/pdf/PLAW-110publ289.pdf Pub. L. No. 110-289], Div. A, Title II, § 1216(e), 122 Stat. 2792, July 30, 2008; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ203/pdf/PLAW-110publ203.pdf Pub. L. No. 111-203], Title III, Subtitle A, § 315, Title X, Subtitle H, § 1100D, 124 Stat. 1524, 124 Stat. 2111, July 21, 2010; amended by [https://www.govinfo.gov/content/pkg/PLAW-113publ235/pdf/PLAW-113publ235.pdf Pub. L. No. 113-235], 128 Stat. 2537, Dec. 16, 2014; amended by [https://www.govinfo.gov/content/pkg/PLAW-115publ435/pdf/PLAW-115publ435.pdf Pub. L. No. 115-435], Title II, § 202, 132 Stat. 5534, Jan. 14, 2019.<br />
<br />
'''Lead Agency:''' <br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Management and Budget, Office of Information and Regulatory Affairs]<br />
==Overview==<br />
One of the main purposes of the Paperwork Reduction Act (PRA) is to “minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons . . . ; ensure the greatest possible public benefit . . . of information collected . . . ; [and] and minimize the cost to the Federal Government of the creation, collection, maintenance, use, dissemination, and disposition of information” (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501]). The PRA statutorily established the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and assigned it responsibility for coordinating government information policies, including approving agency collections of information. The PRA applies to all agencies in the executive branch, as well as to the independent regulatory agencies. Only very narrow functions are exempted from its coverage: (1) federal criminal matters or actions; (2) civil and administrative actions and investigations of specified individuals or entities; (3) compulsory process issued in connection with antitrust proceedings; and (4) federal intelligence activities carried out under presidential executive order (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518]).<br />
<br />
In June 2019, OIRA launched an online [https://pra.digital.gov/about/ Paperwork Reduction Act Guide]. The PRA Guide is a plain language guide which answers the most common questions, like “What is the PRA for?”, “Do I need clearance?”, and “What’s the process?” It aims to give federal employees a strong understanding of the PRA.<br />
<br />
===Basic Clearance Requirement===<br />
The PRA assigns to OIRA the function of approving information collections. It provides that agencies “shall not conduct or sponsor the collection of information” without first obtaining the actual or inferred approval of the Director of OMB, who will determine whether the information collection is necessary for the proper performance of the agency’s functions ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(a)(2)]). The PRA (§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(3)]) defines “collection of information” as: <blockquote>The obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling it either—answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.</blockquote>The 1995 amendments amended the definition of “collection of information” in § 3502(3) explicitly to include requiring persons to collect information for the purpose of disclosing it to the public or third parties as opposed to federal agencies only, thereby overruling [https://cdn.loc.gov/service/ll/usrep/usrep494/usrep494026/usrep494026.pdf Dole v. United Steelworkers of America], 494 U.S. 26 (1990).<br />
<br />
The PRA forbids OMB from approving any information collection for a period of more than three years. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim 3507(g)]. Failure to obtain OMB approval of a collection of information triggers operation of the PRA’s “public protection provision” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512]), which provides that “no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if—(1) the collection of information does not display a valid control number assigned by the Director [of OMB] . . . ; or (2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.” Although there have been numerous attempts to utilize the public protection provision to challenge agency collections of information or as a defense to actions for the failure to file required documents or for filing false information, they have been unsuccessful almost without exception. Indeed, the only exceptions appear to be two cases prosecuting persons for mining on Forest Service land without having filed the required plan of operations, a requirement that did not contain a valid control number. ''See United States v. Hatch'', 919 F.2d 1394 (9th Cir. 1990); ''United States v. Smith'', 866 F.2d 1092 (9th Cir. 1989).<br />
<br />
===Clearance Procedure===<br />
<br />
The PRA provides a general set of clearance procedures for approving agency information collections, with more specific procedures prescribed for information collections imposed through notice-and-comment rulemakings.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(d)] prescribes the following procedure for information collections contained in rules promulgated following notice and comment:<br />
<br />
#Each agency shall forward to OMB a copy of any proposed rule which contains a collection of information, and any information that OMB deems necessary to make the determination. This information must be transmitted no later than publication of the notice of proposed rulemaking (NPRM) in the ''Federal Register''.<br />
#Within 60 days after the notice of proposed rulemaking is published in the ''Federal Register'', OMB may file public comments on the collection of information contained in the proposed rule.<br />
#When a final rule is published in the ''Federal Register'', the agency shall explain how any collection of information contained in the final rule responds to the comments filed by OMB or the public, or the reason the comments were rejected.<br />
#If OMB has received notice and failed to comment on an agency rule within 60 days after the notice of proposed rulemaking, OMB may not disapprove any collection of information specifically contained in that rule.<br />
#However, OMB may disapprove a collection of information if (A) the collection of information was not specifically required by an agency rule; (B) the agency failed to comply with the submission requirements; (C) OMB finds within 60 days after publication of the final rule that the agency’s response to OMB’s comments were unreasonable; or (D) OMB determines the agency has substantially modified the collection of information in the final rule without giving OMB 60 days to review the modified requirement.<br />
#OMB’s decision to disapprove the collection of information in the rule, and its reasons for that decision, must be made publicly available and include an explanation of the reasons for such decision. But OMB’s decision to approve or not act upon a rule is not subject to judicial review.<br />
<br />
OMB’s regulations implementing the PRA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320]) have added certain requirements to the clearance process for collections of information contained in proposed agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_111&rgn=div8 5 C.F.R. § 1320.11]), current agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 5 C.F.R. § 1320.12]), and clearance of collections other than in proposed or current rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_110&rgn=div8 5 C.F.R. § 1320.10]).<br />
<br />
*Agencies should submit collections of information contained in proposed rules to the ''Federal Register'' for public comment. The preamble to the NPRM shall state that the collection of information has been submitted for OMB review and direct that comments be filed with the desk officer for the agency in OIRA/OMB (§ 1320.11(a)). OMB will provide at least 30 days for public comment (§ 1320.11(e)).<br />
*Upon publication of the final rule, the agency shall explain how the collection of information in the final rule responds to comments and identify and explain modifications made to the rule (§ 1320.11(f)).<br />
*On or before the date of publication of the final rule, the agency will submit the final rule to OMB, unless the approved proposed rule was not materially changed. OMB then has 60 days to approve, disapprove, or order a change in the final rule (§ 1320.11(h)). If OMB approves, it will assign an OMB control number (§ 1320.11(i)).<br />
<br />
For information collections that are not contained in new rules promulgated after notice and comment, there is a different process:<br />
<br />
*On or before the day an information collection proposal is submitted to OMB for clearance, the agency must send a notice to the ''Federal Registe''r, in which the agency advises the public that OMB approval has been requested and that the public has 30 to submit comments on the proposal to the OIRA/OMB desk officer for the agency (§ 1320.10(a)).<br />
*Within 60 days after receipt of the agency’s submission, OMB will notify the agency of its decision to approve or disapprove, in whole or in part, the information collection. OMB will provide at least 30 days for public comment before making a decision (§ 1320.10(b)).<br />
*If OMB does not act within the 60-day period, the agency can ask OMB to assign the required control number (valid for one year in these circumstances), and OMB must do so without delay (§ 1320.10(c)).<br />
<br />
OMB has also developed procedures that govern clearance for information collections in existing rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 § 1320.12]). The procedures are intended to prevent expiration of OMB approval for an information collection before the agency has undertaken the necessary administrative procedure to extend OMB’s three-year approval or effect a repeal or amendment of the rule containing the collection provision. The agency is required to seek public comment on the requirement and initiate the OMB review process not later than 60 days before the existing OMB approval expires. If OMB indicates disapproval of the existing information collection provision, OMB must publish an explanation in the ''Federal Register'' and instruct the agency to initiate a rulemaking to amend or rescind the provision, consistent with the [[Administrative Procedure Act]] (APA) or other applicable requirements.<br />
<br />
Finally, OMB regulations ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_16&rgn=div8 § 1320.6(e)]) make clear that the public protection provision in § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim 3512] of the PRA does not preclude the government from imposing a penalty for failing to comply with a collection of information that is mandated by statute, even in the absence of a valid OMB control number. Several courts have so held: [http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2007/D11-14/C:06-3635:J:Easterbrook:aut:T:op:N:0:S:0 United States v. Patridge], 507 F.3d 1092 (7th Cir. 2007), ''reh’g and reh’g en banc denied, cert. denied'', 552 U.S. 1280, ''reh’g denied'', 553 U.S. 1062, ''cert. denied'', 555 U.S. 909, ''post-conviction relief denied'', 2010 WL 3025043; ''Salberg v. United States'', 969 F.2d 379, 384 (7th Cir. 1992); ''United States v. Neff'', 954 F.2d 698, 699–700, (11th Cir. 1992); ''United States v. Hicks'', 947 F.2d 1356, 1359 (9th Cir. 1991); ''United States v. Kerwin'', 945 F.2d 92 (5th Cir. 1991); ''United States v. Wunder'', 919 F.2d 34, 38 (6th Cir. 1990).<br />
<br />
===Alternative Procedures===<br />
The PRA contains several variations from the general review procedures for review of agency information collections. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(j)] establishes a “fast-track” review procedure for emergency situations, which is available on request by agency heads. OMB regulations provided a stringent test for granting such requests ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_113&rgn=div8 § 1320.13]).<br />
<br />
The PRA also authorizes the OMB director to delegate his authority to approve proposed collections of information to the senior official an agency designates as its Chief Information Officer ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506(a)(2)]), if that person “is sufficiently independent of program responsibility to evaluate fairly whether proposed information collection requests should be approved and has sufficient resources to carry out this responsibility effectively” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(i)]). Such an official must comply with OMB’s regulations in reviewing his or her agency’s information collection provisions (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_17&rgn=div8 § 1320.7]).<br />
<br />
OMB’s general clearance procedures are subject to the PRA’s provision that independent regulatory agencies may, by majority vote, override an OMB decision disapproving a proposed information collection (5 U.S.C.[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(f)]; 5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_115&rgn=div8 § 1320.15]). The PRA also contains the only extant statutory definition of “independent regulatory agency” in 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(5)], which has been cross-referenced in a number of other statutes.<br />
<br />
===Agency Certifications===<br />
The regulations (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=502d3fc456f2ea6fe5ea737ddd44990b&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(1)]) further describe the standard: an agency must show that all reasonable steps have been taken to ensure that the collection of information is the least burdensome necessary, that it is not duplicative of information otherwise accessible to the agency, and that the collection of information has practical utility.<br />
<br />
In addition, OMB has established general guidelines (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(2)]) that will be applied unless the agency can demonstrate the need for an exception to them. Among other things, OMB will generally not approve a collection of information<br />
<br />
#that requires reporting more often than quarterly;<br />
#that requires a written response in fewer than 30 days after receipt;<br />
#that requires respondents to submit more than one original and two copies of a document;<br />
#that requires persons to retain records (other than health, medical, contract, grant, or tax records) for more than three years;<br />
#that is not a statistical survey designed to produce valid and reliable statistical results;<br />
#requires the use of a statistical data classification that has not been reviewed and approved by OMB;<br />
#that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or<br />
#that requires respondents to submit proprietary, trade secret, or other confidential information, unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.<br />
<br />
Also pertinent to OMB’s authority is § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim 3518(e)] of the PRA, which states:<blockquote>Nothing in [the PRA] shall be interpreted as increasing or decreasing the authority of the President, the Office of Management and Budget or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies, and offices, including the substantive authority of any Federal agency to enforce the civil rights laws.</blockquote><br />
<br />
===Information Management===<br />
The PRA also authorizes OMB to develop and implement uniform policies on information resources management by federal agencies. OMB has done this through [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular A-130], which sets out various policies agencies are to use in managing government information. <br />
<br />
==Legislative History==<br />
The Paperwork Reduction Act of 1980 replaced the Federal Reports Act of 1942 ([http://uscode.house.gov/statviewer.htm?volume=56&page=1078# Pub. L. No. 77-831]) as the basic statute controlling paperwork requirements imposed on the public by the federal government. The PRA was amended significantly in 1986 and in minor ways in ensuing years, and then amended and completely recodified in 1995.<br />
<br />
The PRA was originally enacted as part of the regulatory reform movement of the 1970s. Reacting to growing public concern over the burden imposed by federal information collections, Congress established the Commission on Federal Paperwork in late 1974. The Commission, in its report in 1977, made 770 recommendations for reducing the federal paperwork burden. Legislation implementing some of the Recommendations was introduced in both the 95th and 96th Congresses. The PRA was passed in November 1980 and signed by President Carter on December 11, 1980. ''See'' William Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
<br />
Conflicts over the interpretations of certain provisions of the PRA resulted in amendments enacted in 1986. Among the amendments was language clarifying the relationship between the procedures required for clearance of information collections in proposed rules and other proposed information collections.<br />
<br />
The 1995 amendments updated, strengthened, and completely recodified the Paperwork Reduction Act of 1980. The goals were the same as in the 1980 Act—to strengthen OMB and agency paperwork reduction efforts, to improve OMB and agency information resources management, and to encourage and provide for public participation in reduction efforts and management decisions. In order to achieve these goals, the 1995 Act clarified the scope of OMB review, enhanced opportunities for public participation, expanded the PRA’s public protection provisions, and specified the agency paperwork reduction responsibilities.<br />
<br />
It also settled the major question of whether agency rules that require businesses or individuals to maintain information for the benefit of third parties or the public were covered by the PRA. The Supreme Court had ruled in ''Dole v. United Steelworkers'', 494 U.S. 26 (1990), that the PRA did not so require. But the 1995 amendments made clear that it does now.<br />
<br />
In 2000, Congress changed references from “chapter” to “subchapter.”<br />
<br />
In 2002, Congress made a number of minor amendments. One eliminated references to the Computer Security Act of 1987 ([http://uscode.house.gov/statutes/pl/100/235.pdf Pub. L. No. 100-235]) and the Clinger-Cohen Act of 1996 (40 U.S.C. § 1401) and substituted references to sections 11332 and 11103 of title 40.<br />
<br />
In 2006, Congress substituted “Postal Regulatory Commission” for “Postal Rate Commission” and in 2008 “Federal Housing Finance Agency” for “Federal Housing Finance Board.”<br />
<br />
In 2010, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act ([https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203]), changes were made to the PRA to take account of the creation of the Bureau of Consumer Finance Protection and new responsibilities of the Office of the Comptroller of the Currency.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Paperwork and Redtape Reduction Act of 1979'', Hearings Before Subcomm. on Federal Spending Practices and Open Gov’t of the S. Comm. on Gov’tal Affairs, 96th Cong. (1979).<br />
*''Paperwork Reduction Act of 1980'', Hearings on H.R.6410 Before Subcomm. of the H. Comm. on Gov’t Operations, 96th Cong. (1980).<br />
*Report on the Paperwork Reduction Act, H.R. Rep. No. 835 (1980).<br />
*Report on the Paperwork Reduction Act of 1980, S. Rep. No. 930 (1980).<br />
*''The Federal Paperwork Burden: Identifying the Major Problems'', Hearings Before the Subcomm. on Fed. Expenditures, Research and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Legislation and Nat’l Sec. of the H. Comm. on Gov’t Operations, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Fed. Expenditures, Research, and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1982).<br />
*''Oversight of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Info. Mgmt. and Regulatory Affairs of the S. Comm. on Gov’tal Affairs, 98th Cong. (1983).<br />
*''Report to Accompany S.2230'', S. Comm. on Gov’tal Affairs, 99th Cong., 2d Sess. (1986).<br />
*''Reauthorization of the Paperwork Reduction Act'', Hearings Before the Subcomm. on Gov’t Info. and Regulations, S. Comm. on Gov’tal Affairs, 101st Cong. (1989).<br />
*''Reauthorization of OMB’s Office of Information and Regulatory Affairs'': Hearings Before the S. Comm. on Gov’tal Affairs, 101st Cong. (1990).<br />
*Federal Information Resources Management Act, S. Rep. No. 101-487 (1990).<br />
*Paperwork Reduction and Federal Information Resources Management Act of 1990, H. Rep. No. 101-927 (1990).<br />
*''Restraining Paperwork Burdens on Small Business: Implementation of the “Paperwork Reduction Act of 1980” and Recommendations to Make It More Effective'', Hearings Before the H. Comm. on Small Bus., 102nd Cong. (1991).<br />
*''The Paperwork Reduction Act and Its Impact on Small Business'', Hearing Before the H. Comm. on Small Bus., 103d Cong. (1993).<br />
*Paperwork Reduction Act of 1994, [https://www.congress.gov/103/bills/s560/BILLS-103s560rs.pdf S. Rep. No. 103-392] (1994).<br />
*''The Paperwork Reduction Act'', Hearing Before the H. Comm. on Small Bus., 104th Cong. (1995).<br />
*H.R. 830, ''Paperwork Reduction Act and Risk Assessment and Cost/Benefit Analysis for New Regulations'', Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Gov’t Reform and Oversight Comm., 108th Cong. (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/srpt8/CRPT-104srpt8.pdf S. Rep. No. 104-8] (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H. R. Rep. No. 104-37] (1995).<br />
*Conference Report on S.244, Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt99/CRPT-104hrpt99.pdf H. R. Rep. No. 104-99] (1995).<br />
*Small Business Paperwork Reduction Act Amendments of 1998, [https://www.congress.gov/105/crpt/hrpt462/CRPT-105hrpt462-pt1.pdf H.R. Rep. No. 105-462] (1998).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-106hhrg70435/pdf/CHRG-106hhrg70435.pdf Reinventing Paperwork?: The Clinton-Gore Administration’s Record on Paperwork Reduction], Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 106th Cong. (2000).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg79868/pdf/CHRG-107hhrg79868.pdf Paperwork Inflation—Past Failures and Future Plans]: Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2001).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg85610/pdf/CHRG-107hhrg85610.pdf Paperwork Inflation—the Growing Burden on America]: Hearing Before the Subcomm. on Energy, Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2002).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg87418/pdf/CHRG-108hhrg87418.pdf Mid-Term Report Card: Is the Bush Administration Doing Enough on Paperwork Reduction?], Hearing Before the H. Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs of the Comm. on Gov’t Reform, 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg90015/pdf/CHRG-108hhrg90015.pdf Paperwork and Regulatory Improvements Act of 2003], Hearing Before the H. Gov’t Reform Comm., 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg95798/pdf/CHRG-108hhrg95798.pdf What Is the Bush Administration’s Economic Growth Plan Component for Paperwork Reduction?], Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004).<br />
*Paperwork and Regulatory Improvements Act of 2004, [https://www.congress.gov/108/crpt/hrpt490/CRPT-108hrpt490-pt1.pdf H.R. Rep. No. 108-490] (2004).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22202/pdf/CHRG-109hhrg22202.pdf Less Is More: The Increasing Burden of Taxpayer Paperwork], Hearing Before the H. Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22572/pdf/CHRG-109hhrg22572.pdf Reducing the Paperwork Burden on the Public: Are Agencies Doing All They Can?], Hearing Before the Subcomm. on Regulatory Affairs of the H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg29707/pdf/CHRG-109hhrg29707.pdf The Paperwork Reduction Act at 25: Opportunities to Strengthen and Improve the Law], Hearing Before the Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2006).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg40601/pdf/CHRG-110hhrg40601.pdf Full Committee Hearing on Improving the Paperwork Reduction Act for Small Businesses], H. Comm. on Small Bus., 110th Cong. (2008).<br />
*[https://www.congress.gov/111/crpt/hrpt517/CRPT-111hrpt517.pdf Dodd-Frank Wall Street Reform and Consumer Protection Act: Conference Report to Accompany H.R. 4173], H. Comm. on Fin. Services 111th Cong. (2010).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg24759/pdf/CHRG-115hhrg24759.pdf Evaluating the Paperwork Reduction Act: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017) ([https://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=399797 video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg27068/pdf/CHRG-115hhrg27068.pdf Evaluating the Paperwork Reduction Act Part II: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017).<br />
</div><br />
<br />
===OMB/OIRA Documents and Resources===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
====OIRA Memoranda for the Heads of Executive Departments and Independent Regulatory Agencies====<br />
<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf Social Media, Web-Based Interactive Technologies, and the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf Information Collection Under the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/inforeg/PRA_Gen_ICRs_5-28-2010.pdf Paperwork Reduction Act–Generic Clearances] (May 28, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2011/m11-26.pdf New Fast-Track Process for Collecting Service Delivery Feedback Under the Paperwork Reduction Act] (June 15, 2011).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/memos/reducing-reporting-and-paperwork-burdens.pdf Reducing Reporting and Paperwork Burdens] (June 22, 2012).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/memos/2014/web-based-interactive-technologies-data-search-tools-calculators-paperwork-reduction-act.pdf Web-based Interactive Technologies: Data Search Tools, Calculators, and the Paperwork Reduction Act] (Sept. 5, 2014).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/pra_flexibilities_memo_7_22_16_finalI.pdf Flexibilities under the Paperwork Reduction Act for Compliance with Information Collection Requirements] (July 22, 2016)<br />
</div><br />
====Other OMB/OIRA Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular No. A-130: Managing Information as a Strategic Resource]<br />
*''Information Collection Review Handbook'' (1989); superseded by OMB/OIRA, ''The Paperwork Reduction Act, of 1995: Implementing Guidance'' (preliminary draft, Feb. 3, 1997).<br />
*https://www.whitehouse.gov/wp-content/uploads/2017/11/1998_OMB_Bulletin_No_98_03.pdf Bulletin 98-03, Fiscal Year 1997 Information Streamlining Plan and Information Collection Budget].<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/icb/2005_icb_final.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2005] (May 2005).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/icb/fy2006_icb_revised.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2006 (revised version)] (Dec. 2006).<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/inforeg/pmc_survey_guidance_2006.pdf Questions and Answers When Designing Surveys for Information Collections] (Jan. 2006).<br />
*''Information Collection Budgets'' (fiscal years 1998–2014).<br />
*[https://www.usaid.gov/forms/omb-83-i OMB Form 83-I] (rev’d Feb. 2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-10.pdf Improving Access to Public Benefits Programs Through the Paperwork Reduction Act] (April 13, 2022)<br />
</div><br />
<br />
====[https://pra.digital.gov/ PRA Digital.gov Guide]====<br />
<br />
===ACUS Recommendations & Resources===<br />
<br />
*2012-4 [https://www.acus.gov/sites/default/files/documents/Final-Recommendation-2012-4-Paperwork-Reduction-Act.pdf Paperwork Reduction Act]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
*IIB-025 [https://www.acus.gov/sites/default/files/documents/25 PRA Basics.pdf Paperwork Reduction Act Basics] (2022)<br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/GGD 83-35, [https://www.gao.gov/assets/140/139988.pdf Implementing the Paperwork Reduction Act: Some Progress, But Many Problems Remain] (1983).<br />
*GAO/T-GGD-99-78, [https://www.gao.gov/assets/t-ggd-99-78.pdf Paperwork Reduction Act—Burden Increases and Unauthorized Information Collections], Testimony of L. Nye Stevens, Director, Federal Management and Workforce Issues, General Government Division before the House Subcomm. on Nat’l Econ. Growth, Nat. Resources and Regulatory Affairs; and the Subcomm. on Gov’t Mgmt., Info., and Tech. of the Comm. on Gov’t Reform (Apr. 15, 1999).<br />
*GAO/T-GGD-00-114, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-00-114/pdf/GAOREPORTS-T-GGD-00-114.pdf Paperwork Reduction Act: Burden Increases at IRS and Other Agencies] (2000).<br />
*GAO-02-651R, [https://www.gao.gov/assets/100/91241.pdf Paperwork Reduction Act: Changes Needed to Annual Report] (2002).<br />
*GAO-05-424, [https://www.gao.gov/assets/250/246399.pdf Paperwork Reduction Act: New Approach May Be Needed to Reduce Government Burden on Public] (2005).<br />
*GAO-05-909R, [https://www.gao.gov/assets/100/93398.pdf Paperwork Reduction Act: Subcommittee Questions Concerning the Act’s Information Collection Provisions] (2005).<br />
*GAO-06-974T, [https://www.gao.gov/assets/120/114436.pdf Paperwork Reduction Act: Increase in Estimated Burden Hours Highlights Need for New Approach] (2006).<br />
*GAO-07-62, [https://www.gao.gov/assets/260/253535.pdf Federal Information Collection: A Reexamination of the Portfolio of Major Federal Household Surveys Is Needed] (2006).<br />
*GAO-18-381, [https://www.gao.gov/assets/700/693057.pdf Paperwork Reduction Act: Agencies Could Better Leverage Review Processes and Public Outreach to Improve Burden Estimates] (2018)<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Comm’n on Fed. Paperwork, ''Final Summary Report'' (1977).<br />
*Comm’n on Fed. Paperwork, ''The Reports Clearance Process'' (1977).<br />
*Harold C. Relyea, Cong. Research Serv., RL30590, ''Paperwork Reduction Act Reauthorization and Government Information Management Issues'' (2007).<br />
*Curtis Copeland & Vanessa K. Burrows, Cong. Research Serv., R40636, ''Paperwork Reduction Act: OMB and Agency Responsibilities and Burden Estimates'' (2009).<br />
*Small Bus. Admin., Office of Advocacy, ''Small Business Paperwork: Problems and Progress'' (1983).<br />
*Office of Pers. Mgmt., [https://www.opm.gov/about-us/open-government/digital-government-strategy/fitara/paperwork-reduction-act-guide.pdf Paperwork Reduction Act (PRA) Guide] (2011).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Eugene Bardach, ''Self-Regulation and Regulatory Paperwork, in Social Regulation: Strategies for Reform'' (E. Bardach and R. Kagan eds., Inst. for Contemporary Studies 1982).<br />
*Pamela M. Foster, Comment, ''A Limit to OMB’s Authority Under the Paperwork Reduction Act in Dole v. United Steelworkers of America: A Step in the Right Direction'', 6 Admin. L. J. Am. U. 153 (1992).<br />
*William F. Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
*Murray A. Indick, Ronald J. Greene & Daniel Squire, ''The Economic Growth and Regulatory Paperwork Reduction Act of 1996'', 114 Banking L.J. 298 (1997).<br />
*Andrew L. Levy, ''The Paperwork Reduction Act of 1980: Unnecessary Burdens and Unrealized Efficiency'', 14 J. L. & Com. 99 (1994).<br />
*Jeffrey Lubbers, ''Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995'', 49 Admin. L. Rev. 111 (1997).<br />
*Richard M. Neustadt, ''Taming the Paperwork Tiger: An Experiment in Regulatory Management'', Regulation 28, Jan./Feb. 1981.<br />
*James T. O’Reilly, ''Who’s on First?: The Role of the Office of Management and Budget in Federal Information Policy'', 10 J. Legis. 95 (1983).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201988-10%20PERRITT%20Elec%20Acqu%20%2B%20Release%20of%20Info%201988%20ACUS%20601.pdf Electronic Acquisition and Release of Federal Agency Information] (Oct. 1, 1988) (report to ACUS).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201990-05%20PERRITT%20ELec%20Records%20Mgmt%20%2B%20Archives%201990%20ACUS%20389.pdf Federal Agency Electronic Records Management and Archives] (1990) (report to ACUS).<br />
*David Plocher, ''The Paperwork Reduction Act of 1995: A Second Chance for Information Resources Management (Reauthorization of the 1980 Act)'', Gov’t Info. Q. 271 (1997).<br />
*Robert Rosacher & Thomas Davies, ''An Analysis of Federal Income Tax Complexity Utilizing Internal Revenue Service Estimates for Taxpayer Paperwork Burden'', 45 Oil & Gas Tax Q. 791 (1997).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/Draft-PRA-Report-2-15-12.pdf The Paperwork Reduction Act: Benefits, Costs and Directions for Reform, Government Information Quarterly] (Feb. 15, 2012) (report to ACUS).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS)<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
</div><br />
<br />
===Agency Regulations===<br />
Office of Management and Budget ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320])<br />
<br />
==Statutory Provisions==<br />
Paperwork Reduction Act<br />
<br />
Title 44 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim Chapter 35, Subchapter I—Federal Information Policy]<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501. Purposes]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim § 3502. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3503&num=0&edition=prelim § 3503. Office of Information and Regulatory Affairs]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim § 3504. Authority and functions of Director]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3505&num=0&edition=prelim § 3505. Assignment of tasks and deadlines]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506. Federal agency responsibilities]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507. Public information collection activities; submission to Director; approval and delegation]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3508&num=0&edition=prelim § 3508. Determination of necessity for information; hearing]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3509&num=0&edition=prelim § 3509. Designation of central collection agency]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3510&num=0&edition=prelim § 3510. Cooperation of agencies in making information available]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3511&num=0&edition=prelim § 3511. Establishment and operation of Government Information Locator Service]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512. Public protection]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3513&num=0&edition=prelim § 3513. Director review of agency activities; reporting; agency response]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3514&num=0&edition=prelim § 3514. Responsiveness to Congress]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3515&num=0&edition=prelim § 3515. Administrative powers]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim § 3516. Rules and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3517&num=0&edition=prelim § 3517. Consultation with other agencies and the public]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518. Effect on existing laws and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3519&num=0&edition=prelim § 3519. Access to information]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3520&num=0&edition=prelim § 3520. Establishment of task force on information collection and dissemination]<br />
</div></div>MGluthhttps://sourcebook.acus.gov/index.php?title=Paperwork_Reduction_Act&diff=1671Paperwork Reduction Act2023-08-15T20:29:36Z<p>MGluth: </p>
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<div>44 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim 3501–3521] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg2812.pdf Pub. L. No. 96-511], 94 Stat. 2812, Dec. 11, 1980; amended by [https://history.nih.gov/research/downloads/PL99-591.pdf Pub. L. No. 99-591], Title I, § 101(m), 100 Stat. 3341-308, 3341-335, Oct. 18, 1986; amended and re-codified by [https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13], § 2, 109 Stat. 163, May 22, 1995; amended by [https://www.govinfo.gov/content/pkg/PLAW-106publ398/pdf/PLAW-106publ398.pdf Pub. L. 106-398], Sec. 1 [[div. A], title X, §§ 1064(a)-(b)], 114 Stat. 1654, 1654A-275, Oct. 30, 2000; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ198/pdf/PLAW-107publ198.pdf Pub. L. No. 107-198], §§ 2–3, 116 Stat. 732, June 28, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ217/pdf/PLAW-107publ217.pdf Pub. L. No. 107-217], § 3(1), 116 Stat. 1301, Aug. 21, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ296/pdf/PLAW-107publ296.pdf Pub. L. No. 107-296], § 1005(c), 116 Stat. 2273, Nov. 25, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ347/pdf/PLAW-107publ347.pdf Pub. L. No. 107-347], title III, § 305(c)(3), 116 Stat. 2961, Dec. 17, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-109publ435/pdf/PLAW-109publ435.pdf Pub. L. No. 109-435], Title VI, § 604(e), 120 Stat. 3242, Dec. 20, 2006; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ289/pdf/PLAW-110publ289.pdf Pub. L. No. 110-289], Div. A, Title II, § 1216(e), 122 Stat. 2792, July 30, 2008; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ203/pdf/PLAW-110publ203.pdf Pub. L. No. 111-203], Title III, Subtitle A, § 315, Title X, Subtitle H, § 1100D, 124 Stat. 1524, 124 Stat. 2111, July 21, 2010; amended by [https://www.govinfo.gov/content/pkg/PLAW-113publ235/pdf/PLAW-113publ235.pdf Pub. L. No. 113-235], 128 Stat. 2537, Dec. 16, 2014; amended by [https://www.govinfo.gov/content/pkg/PLAW-115publ435/pdf/PLAW-115publ435.pdf Pub. L. No. 115-435], Title II, § 202, 132 Stat. 5534, Jan. 14, 2019.<br />
<br />
'''Lead Agency:''' <br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Management and Budget, Office of Information and Regulatory Affairs]<br />
==Overview==<br />
One of the main purposes of the Paperwork Reduction Act (PRA) is to “minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons . . . ; ensure the greatest possible public benefit . . . of information collected . . . ; [and] and minimize the cost to the Federal Government of the creation, collection, maintenance, use, dissemination, and disposition of information” (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501]). The PRA statutorily established the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and assigned it responsibility for coordinating government information policies, including approving agency collections of information. The PRA applies to all agencies in the executive branch, as well as to the independent regulatory agencies. Only very narrow functions are exempted from its coverage: (1) federal criminal matters or actions; (2) civil and administrative actions and investigations of specified individuals or entities; (3) compulsory process issued in connection with antitrust proceedings; and (4) federal intelligence activities carried out under presidential executive order (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518]).<br />
<br />
In June 2019, OIRA launched an online [https://pra.digital.gov/about/ Paperwork Reduction Act Guide]. The PRA Guide is a plain language guide which answers the most common questions, like “What is the PRA for?”, “Do I need clearance?”, and “What’s the process?” It aims to give federal employees a strong understanding of the PRA.<br />
<br />
===Basic Clearance Requirement===<br />
The PRA assigns to OIRA the function of approving information collections. It provides that agencies “shall not conduct or sponsor the collection of information” without first obtaining the actual or inferred approval of the Director of OMB, who will determine whether the information collection is necessary for the proper performance of the agency’s functions ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(a)(2)]). The PRA (§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(3)]) defines “collection of information” as: <blockquote>The obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling it either—answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.</blockquote>The 1995 amendments amended the definition of “collection of information” in § 3502(3) explicitly to include requiring persons to collect information for the purpose of disclosing it to the public or third parties as opposed to federal agencies only, thereby overruling [https://cdn.loc.gov/service/ll/usrep/usrep494/usrep494026/usrep494026.pdf Dole v. United Steelworkers of America], 494 U.S. 26 (1990).<br />
<br />
The PRA forbids OMB from approving any information collection for a period of more than three years. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim 3507(g)]. Failure to obtain OMB approval of a collection of information triggers operation of the PRA’s “public protection provision” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512]), which provides that “no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if—(1) the collection of information does not display a valid control number assigned by the Director [of OMB] . . . ; or (2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.” Although there have been numerous attempts to utilize the public protection provision to challenge agency collections of information or as a defense to actions for the failure to file required documents or for filing false information, they have been unsuccessful almost without exception. Indeed, the only exceptions appear to be two cases prosecuting persons for mining on Forest Service land without having filed the required plan of operations, a requirement that did not contain a valid control number. ''See United States v. Hatch'', 919 F.2d 1394 (9th Cir. 1990); ''United States v. Smith'', 866 F.2d 1092 (9th Cir. 1989).<br />
<br />
===Clearance Procedure===<br />
<br />
The PRA provides a general set of clearance procedures for approving agency information collections, with more specific procedures prescribed for information collections imposed through notice-and-comment rulemakings.<br />
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[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(d)] prescribes the following procedure for information collections contained in rules promulgated following notice and comment:<br />
<br />
#Each agency shall forward to OMB a copy of any proposed rule which contains a collection of information, and any information that OMB deems necessary to make the determination. This information must be transmitted no later than publication of the notice of proposed rulemaking (NPRM) in the ''Federal Register''.<br />
#Within 60 days after the notice of proposed rulemaking is published in the ''Federal Register'', OMB may file public comments on the collection of information contained in the proposed rule.<br />
#When a final rule is published in the ''Federal Register'', the agency shall explain how any collection of information contained in the final rule responds to the comments filed by OMB or the public, or the reason the comments were rejected.<br />
#If OMB has received notice and failed to comment on an agency rule within 60 days after the notice of proposed rulemaking, OMB may not disapprove any collection of information specifically contained in that rule.<br />
#However, OMB may disapprove a collection of information if (A) the collection of information was not specifically required by an agency rule; (B) the agency failed to comply with the submission requirements; (C) OMB finds within 60 days after publication of the final rule that the agency’s response to OMB’s comments were unreasonable; or (D) OMB determines the agency has substantially modified the collection of information in the final rule without giving OMB 60 days to review the modified requirement.<br />
#OMB’s decision to disapprove the collection of information in the rule, and its reasons for that decision, must be made publicly available and include an explanation of the reasons for such decision. But OMB’s decision to approve or not act upon a rule is not subject to judicial review.<br />
<br />
OMB’s regulations implementing the PRA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320]) have added certain requirements to the clearance process for collections of information contained in proposed agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_111&rgn=div8 5 C.F.R. § 1320.11]), current agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 5 C.F.R. § 1320.12]), and clearance of collections other than in proposed or current rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_110&rgn=div8 5 C.F.R. § 1320.10]).<br />
<br />
*Agencies should submit collections of information contained in proposed rules to the ''Federal Register'' for public comment. The preamble to the NPRM shall state that the collection of information has been submitted for OMB review and direct that comments be filed with the desk officer for the agency in OIRA/OMB (§ 1320.11(a)). OMB will provide at least 30 days for public comment (§ 1320.11(e)).<br />
*Upon publication of the final rule, the agency shall explain how the collection of information in the final rule responds to comments and identify and explain modifications made to the rule (§ 1320.11(f)).<br />
*On or before the date of publication of the final rule, the agency will submit the final rule to OMB, unless the approved proposed rule was not materially changed. OMB then has 60 days to approve, disapprove, or order a change in the final rule (§ 1320.11(h)). If OMB approves, it will assign an OMB control number (§ 1320.11(i)).<br />
<br />
For information collections that are not contained in new rules promulgated after notice and comment, there is a different process:<br />
<br />
*On or before the day an information collection proposal is submitted to OMB for clearance, the agency must send a notice to the ''Federal Registe''r, in which the agency advises the public that OMB approval has been requested and that the public has 30 to submit comments on the proposal to the OIRA/OMB desk officer for the agency (§ 1320.10(a)).<br />
*Within 60 days after receipt of the agency’s submission, OMB will notify the agency of its decision to approve or disapprove, in whole or in part, the information collection. OMB will provide at least 30 days for public comment before making a decision (§ 1320.10(b)).<br />
*If OMB does not act within the 60-day period, the agency can ask OMB to assign the required control number (valid for one year in these circumstances), and OMB must do so without delay (§ 1320.10(c)).<br />
<br />
OMB has also developed procedures that govern clearance for information collections in existing rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 § 1320.12]). The procedures are intended to prevent expiration of OMB approval for an information collection before the agency has undertaken the necessary administrative procedure to extend OMB’s three-year approval or effect a repeal or amendment of the rule containing the collection provision. The agency is required to seek public comment on the requirement and initiate the OMB review process not later than 60 days before the existing OMB approval expires. If OMB indicates disapproval of the existing information collection provision, OMB must publish an explanation in the ''Federal Register'' and instruct the agency to initiate a rulemaking to amend or rescind the provision, consistent with the [[Administrative Procedure Act]] (APA) or other applicable requirements.<br />
<br />
Finally, OMB regulations ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_16&rgn=div8 § 1320.6(e)]) make clear that the public protection provision in § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim 3512] of the PRA does not preclude the government from imposing a penalty for failing to comply with a collection of information that is mandated by statute, even in the absence of a valid OMB control number. Several courts have so held: [http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2007/D11-14/C:06-3635:J:Easterbrook:aut:T:op:N:0:S:0 United States v. Patridge], 507 F.3d 1092 (7th Cir. 2007), ''reh’g and reh’g en banc denied, cert. denied'', 552 U.S. 1280, ''reh’g denied'', 553 U.S. 1062, ''cert. denied'', 555 U.S. 909, ''post-conviction relief denied'', 2010 WL 3025043; ''Salberg v. United States'', 969 F.2d 379, 384 (7th Cir. 1992); ''United States v. Neff'', 954 F.2d 698, 699–700, (11th Cir. 1992); ''United States v. Hicks'', 947 F.2d 1356, 1359 (9th Cir. 1991); ''United States v. Kerwin'', 945 F.2d 92 (5th Cir. 1991); ''United States v. Wunder'', 919 F.2d 34, 38 (6th Cir. 1990).<br />
<br />
===Alternative Procedures===<br />
The PRA contains several variations from the general review procedures for review of agency information collections. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(j)] establishes a “fast-track” review procedure for emergency situations, which is available on request by agency heads. OMB regulations provided a stringent test for granting such requests ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_113&rgn=div8 § 1320.13]).<br />
<br />
The PRA also authorizes the OMB director to delegate his authority to approve proposed collections of information to the senior official an agency designates as its Chief Information Officer ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506(a)(2)]), if that person “is sufficiently independent of program responsibility to evaluate fairly whether proposed information collection requests should be approved and has sufficient resources to carry out this responsibility effectively” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(i)]). Such an official must comply with OMB’s regulations in reviewing his or her agency’s information collection provisions (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_17&rgn=div8 § 1320.7]).<br />
<br />
OMB’s general clearance procedures are subject to the PRA’s provision that independent regulatory agencies may, by majority vote, override an OMB decision disapproving a proposed information collection (5 U.S.C.[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(f)]; 5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_115&rgn=div8 § 1320.15]). The PRA also contains the only extant statutory definition of “independent regulatory agency” in 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(5)], which has been cross-referenced in a number of other statutes.<br />
<br />
===Agency Certifications===<br />
The regulations (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=502d3fc456f2ea6fe5ea737ddd44990b&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(1)]) further describe the standard: an agency must show that all reasonable steps have been taken to ensure that the collection of information is the least burdensome necessary, that it is not duplicative of information otherwise accessible to the agency, and that the collection of information has practical utility.<br />
<br />
In addition, OMB has established general guidelines (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(2)]) that will be applied unless the agency can demonstrate the need for an exception to them. Among other things, OMB will generally not approve a collection of information<br />
<br />
#that requires reporting more often than quarterly;<br />
#that requires a written response in fewer than 30 days after receipt;<br />
#that requires respondents to submit more than one original and two copies of a document;<br />
#that requires persons to retain records (other than health, medical, contract, grant, or tax records) for more than three years;<br />
#that is not a statistical survey designed to produce valid and reliable statistical results;<br />
#requires the use of a statistical data classification that has not been reviewed and approved by OMB;<br />
#that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or<br />
#that requires respondents to submit proprietary, trade secret, or other confidential information, unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.<br />
<br />
Also pertinent to OMB’s authority is § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim 3518(e)] of the PRA, which states:<blockquote>Nothing in [the PRA] shall be interpreted as increasing or decreasing the authority of the President, the Office of Management and Budget or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies, and offices, including the substantive authority of any Federal agency to enforce the civil rights laws.</blockquote><br />
<br />
===Information Management===<br />
The PRA also authorizes OMB to develop and implement uniform policies on information resources management by federal agencies. OMB has done this through [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular A-130], which sets out various policies agencies are to use in managing government information. <br />
<br />
==Legislative History==<br />
The Paperwork Reduction Act of 1980 replaced the Federal Reports Act of 1942 ([http://uscode.house.gov/statviewer.htm?volume=56&page=1078# Pub. L. No. 77-831]) as the basic statute controlling paperwork requirements imposed on the public by the federal government. The PRA was amended significantly in 1986 and in minor ways in ensuing years, and then amended and completely recodified in 1995.<br />
<br />
The PRA was originally enacted as part of the regulatory reform movement of the 1970s. Reacting to growing public concern over the burden imposed by federal information collections, Congress established the Commission on Federal Paperwork in late 1974. The Commission, in its report in 1977, made 770 recommendations for reducing the federal paperwork burden. Legislation implementing some of the Recommendations was introduced in both the 95th and 96th Congresses. The PRA was passed in November 1980 and signed by President Carter on December 11, 1980. ''See'' William Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
<br />
Conflicts over the interpretations of certain provisions of the PRA resulted in amendments enacted in 1986. Among the amendments was language clarifying the relationship between the procedures required for clearance of information collections in proposed rules and other proposed information collections.<br />
<br />
The 1995 amendments updated, strengthened, and completely recodified the Paperwork Reduction Act of 1980. The goals were the same as in the 1980 Act—to strengthen OMB and agency paperwork reduction efforts, to improve OMB and agency information resources management, and to encourage and provide for public participation in reduction efforts and management decisions. In order to achieve these goals, the 1995 Act clarified the scope of OMB review, enhanced opportunities for public participation, expanded the PRA’s public protection provisions, and specified the agency paperwork reduction responsibilities.<br />
<br />
It also settled the major question of whether agency rules that require businesses or individuals to maintain information for the benefit of third parties or the public were covered by the PRA. The Supreme Court had ruled in ''Dole v. United Steelworkers'', 494 U.S. 26 (1990), that the PRA did not so require. But the 1995 amendments made clear that it does now.<br />
<br />
In 2000, Congress changed references from “chapter” to “subchapter.”<br />
<br />
In 2002, Congress made a number of minor amendments. One eliminated references to the Computer Security Act of 1987 ([http://uscode.house.gov/statutes/pl/100/235.pdf Pub. L. No. 100-235]) and the Clinger-Cohen Act of 1996 (40 U.S.C. § 1401) and substituted references to sections 11332 and 11103 of title 40.<br />
<br />
In 2006, Congress substituted “Postal Regulatory Commission” for “Postal Rate Commission” and in 2008 “Federal Housing Finance Agency” for “Federal Housing Finance Board.”<br />
<br />
In 2010, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act ([https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203]), changes were made to the PRA to take account of the creation of the Bureau of Consumer Finance Protection and new responsibilities of the Office of the Comptroller of the Currency.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Paperwork and Redtape Reduction Act of 1979'', Hearings Before Subcomm. on Federal Spending Practices and Open Gov’t of the S. Comm. on Gov’tal Affairs, 96th Cong. (1979).<br />
*''Paperwork Reduction Act of 1980'', Hearings on H.R.6410 Before Subcomm. of the H. Comm. on Gov’t Operations, 96th Cong. (1980).<br />
*Report on the Paperwork Reduction Act, H.R. Rep. No. 835 (1980).<br />
*Report on the Paperwork Reduction Act of 1980, S. Rep. No. 930 (1980).<br />
*''The Federal Paperwork Burden: Identifying the Major Problems'', Hearings Before the Subcomm. on Fed. Expenditures, Research and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Legislation and Nat’l Sec. of the H. Comm. on Gov’t Operations, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Fed. Expenditures, Research, and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1982).<br />
*''Oversight of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Info. Mgmt. and Regulatory Affairs of the S. Comm. on Gov’tal Affairs, 98th Cong. (1983).<br />
*''Report to Accompany S.2230'', S. Comm. on Gov’tal Affairs, 99th Cong., 2d Sess. (1986).<br />
*''Reauthorization of the Paperwork Reduction Act'', Hearings Before the Subcomm. on Gov’t Info. and Regulations, S. Comm. on Gov’tal Affairs, 101st Cong. (1989).<br />
*''Reauthorization of OMB’s Office of Information and Regulatory Affairs'': Hearings Before the S. Comm. on Gov’tal Affairs, 101st Cong. (1990).<br />
*Federal Information Resources Management Act, S. Rep. No. 101-487 (1990).<br />
*Paperwork Reduction and Federal Information Resources Management Act of 1990, H. Rep. No. 101-927 (1990).<br />
*''Restraining Paperwork Burdens on Small Business: Implementation of the “Paperwork Reduction Act of 1980” and Recommendations to Make It More Effective'', Hearings Before the H. Comm. on Small Bus., 102nd Cong. (1991).<br />
*''The Paperwork Reduction Act and Its Impact on Small Business'', Hearing Before the H. Comm. on Small Bus., 103d Cong. (1993).<br />
*Paperwork Reduction Act of 1994, [https://www.congress.gov/103/bills/s560/BILLS-103s560rs.pdf S. Rep. No. 103-392] (1994).<br />
*''The Paperwork Reduction Act'', Hearing Before the H. Comm. on Small Bus., 104th Cong. (1995).<br />
*H.R. 830, ''Paperwork Reduction Act and Risk Assessment and Cost/Benefit Analysis for New Regulations'', Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Gov’t Reform and Oversight Comm., 108th Cong. (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/srpt8/CRPT-104srpt8.pdf S. Rep. No. 104-8] (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H. R. Rep. No. 104-37] (1995).<br />
*Conference Report on S.244, Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt99/CRPT-104hrpt99.pdf H. R. Rep. No. 104-99] (1995).<br />
*Small Business Paperwork Reduction Act Amendments of 1998, [https://www.congress.gov/105/crpt/hrpt462/CRPT-105hrpt462-pt1.pdf H.R. Rep. No. 105-462] (1998).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-106hhrg70435/pdf/CHRG-106hhrg70435.pdf Reinventing Paperwork?: The Clinton-Gore Administration’s Record on Paperwork Reduction], Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 106th Cong. (2000).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg79868/pdf/CHRG-107hhrg79868.pdf Paperwork Inflation—Past Failures and Future Plans]: Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2001).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg85610/pdf/CHRG-107hhrg85610.pdf Paperwork Inflation—the Growing Burden on America]: Hearing Before the Subcomm. on Energy, Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2002).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg87418/pdf/CHRG-108hhrg87418.pdf Mid-Term Report Card: Is the Bush Administration Doing Enough on Paperwork Reduction?], Hearing Before the H. Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs of the Comm. on Gov’t Reform, 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg90015/pdf/CHRG-108hhrg90015.pdf Paperwork and Regulatory Improvements Act of 2003], Hearing Before the H. Gov’t Reform Comm., 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg95798/pdf/CHRG-108hhrg95798.pdf What Is the Bush Administration’s Economic Growth Plan Component for Paperwork Reduction?], Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004).<br />
*Paperwork and Regulatory Improvements Act of 2004, [https://www.congress.gov/108/crpt/hrpt490/CRPT-108hrpt490-pt1.pdf H.R. Rep. No. 108-490] (2004).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22202/pdf/CHRG-109hhrg22202.pdf Less Is More: The Increasing Burden of Taxpayer Paperwork], Hearing Before the H. Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22572/pdf/CHRG-109hhrg22572.pdf Reducing the Paperwork Burden on the Public: Are Agencies Doing All They Can?], Hearing Before the Subcomm. on Regulatory Affairs of the H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg29707/pdf/CHRG-109hhrg29707.pdf The Paperwork Reduction Act at 25: Opportunities to Strengthen and Improve the Law], Hearing Before the Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2006).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg40601/pdf/CHRG-110hhrg40601.pdf Full Committee Hearing on Improving the Paperwork Reduction Act for Small Businesses], H. Comm. on Small Bus., 110th Cong. (2008).<br />
*[https://www.congress.gov/111/crpt/hrpt517/CRPT-111hrpt517.pdf Dodd-Frank Wall Street Reform and Consumer Protection Act: Conference Report to Accompany H.R. 4173], H. Comm. on Fin. Services 111th Cong. (2010).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg24759/pdf/CHRG-115hhrg24759.pdf Evaluating the Paperwork Reduction Act: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017) ([https://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=399797 video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg27068/pdf/CHRG-115hhrg27068.pdf Evaluating the Paperwork Reduction Act Part II: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017).<br />
</div><br />
<br />
===OMB/OIRA Documents and Resources===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
====OIRA Memoranda for the Heads of Executive Departments and Independent Regulatory Agencies====<br />
<br />
*[https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf Social Media, Web-Based Interactive Technologies, and the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf Information Collection Under the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/inforeg/PRA_Gen_ICRs_5-28-2010.pdf Paperwork Reduction Act–Generic Clearances] (May 28, 2010).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2011/m11-26.pdf New Fast-Track Process for Collecting Service Delivery Feedback Under the Paperwork Reduction Act] (June 15, 2011).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/memos/reducing-reporting-and-paperwork-burdens.pdf Reducing Reporting and Paperwork Burdens] (June 22, 2012).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/memos/2014/web-based-interactive-technologies-data-search-tools-calculators-paperwork-reduction-act.pdf Web-based Interactive Technologies: Data Search Tools, Calculators, and the Paperwork Reduction Act] (Sept. 5, 2014).<br />
*[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/pra_flexibilities_memo_7_22_16_finalI.pdf Flexibilities under the Paperwork Reduction Act for Compliance with Information Collection Requirements] (July 22, 2016)<br />
</div><br />
====Other OMB/OIRA Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular No. A-130: Managing Information as a Strategic Resource]<br />
*''Information Collection Review Handbook'' (1989); superseded by OMB/OIRA, ''The Paperwork Reduction Act, of 1995: Implementing Guidance'' (preliminary draft, Feb. 3, 1997).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/1998_OMB_Bulletin_No_98_03.pdf Bulletin 97-03, Fiscal Year 1996 Information Streamlining Plan and Information Collection Budget].<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/icb/2005_icb_final.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2005] (May 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/icb/fy2006_icb_revised.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2006 (revised version)] (Dec. 2006).<br />
*[https://www.cio.noaa.gov/itmanagement/pdfs/OMBSurveyGuidance_0106.pdf Questions and Answers When Designing Surveys for Information Collections] (Jan. 2006).<br />
*''Information Collection Budgets'' (fiscal years 1998–2014).<br />
*[https://www.usaid.gov/sites/default/files/documents/1868/OMB%2083-I%20(Paperwork%20Reduction%20Act%20Submission).pdf OMB Form 83-I] (rev’d Feb. 2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-10.pdf Improving Access to Public Benefits Programs Through the Paperwork Reduction Act] (April 13, 2022)<br />
</div><br />
<br />
====[https://pra.digital.gov/ PRA Digital.gov Guide]====<br />
<br />
===ACUS Recommendations===<br />
<br />
*2012-4 [https://www.acus.gov/sites/default/files/documents/Final-Recommendation-2012-4-Paperwork-Reduction-Act.pdf Paperwork Reduction Act]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/GGD 83-35, [https://www.gao.gov/assets/140/139988.pdf Implementing the Paperwork Reduction Act: Some Progress, But Many Problems Remain] (1983).<br />
*GAO/T-GGD-99-78, [https://www.gao.gov/archive/1999/gg99078t.pdf Paperwork Reduction Act—Burden Increases and Unauthorized Information Collections], Testimony of L. Nye Stevens, Director, Federal Management and Workforce Issues, General Government Division before the House Subcomm. on Nat’l Econ. Growth, Nat. Resources and Regulatory Affairs; and the Subcomm. on Gov’t Mgmt., Info., and Tech. of the Comm. on Gov’t Reform (Apr. 15, 1999).<br />
*GAO/T-GGD-00-114, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-00-114/pdf/GAOREPORTS-T-GGD-00-114.pdf Paperwork Reduction Act: Burden Increases at IRS and Other Agencies] (2000).<br />
*GAO-02-651R, [https://www.gao.gov/assets/100/91241.pdf Paperwork Reduction Act: Changes Needed to Annual Report] (2002).<br />
*GAO-05-424, [https://www.gao.gov/assets/250/246399.pdf Paperwork Reduction Act: New Approach May Be Needed to Reduce Government Burden on Public] (2005).<br />
*GAO-05-909R, [https://www.gao.gov/assets/100/93398.pdf Paperwork Reduction Act: Subcommittee Questions Concerning the Act’s Information Collection Provisions] (2005).<br />
*GAO-06-974T, [https://www.gao.gov/assets/120/114436.pdf Paperwork Reduction Act: Increase in Estimated Burden Hours Highlights Need for New Approach] (2006).<br />
*GAO-07-62, [https://www.gao.gov/assets/260/253535.pdf Federal Information Collection: A Reexamination of the Portfolio of Major Federal Household Surveys Is Needed] (2006).<br />
*GAO-18-381, [https://www.gao.gov/assets/700/693057.pdf Paperwork Reduction Act: Agencies Could Better Leverage Review Processes and Public Outreach to Improve Burden Estimates] (2018)<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Comm’n on Fed. Paperwork, ''Final Summary Report'' (1977).<br />
*Comm’n on Fed. Paperwork, ''The Reports Clearance Process'' (1977).<br />
*Harold C. Relyea, Cong. Research Serv., RL30590, ''Paperwork Reduction Act Reauthorization and Government Information Management Issues'' (2007).<br />
*Curtis Copeland & Vanessa K. Burrows, Cong. Research Serv., R40636, ''Paperwork Reduction Act: OMB and Agency Responsibilities and Burden Estimates'' (2009).<br />
*Small Bus. Admin., Office of Advocacy, ''Small Business Paperwork: Problems and Progress'' (1983).<br />
*Office of Pers. Mgmt., [https://www.opm.gov/about-us/open-government/digital-government-strategy/fitara/paperwork-reduction-act-guide.pdf Paperwork Reduction Act (PRA) Guide] (2011).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Eugene Bardach, ''Self-Regulation and Regulatory Paperwork, in Social Regulation: Strategies for Reform'' (E. Bardach and R. Kagan eds., Inst. for Contemporary Studies 1982).<br />
*Pamela M. Foster, Comment, ''A Limit to OMB’s Authority Under the Paperwork Reduction Act in Dole v. United Steelworkers of America: A Step in the Right Direction'', 6 Admin. L. J. Am. U. 153 (1992).<br />
*William F. Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
*Murray A. Indick, Ronald J. Greene & Daniel Squire, ''The Economic Growth and Regulatory Paperwork Reduction Act of 1996'', 114 Banking L.J. 298 (1997).<br />
*Andrew L. Levy, ''The Paperwork Reduction Act of 1980: Unnecessary Burdens and Unrealized Efficiency'', 14 J. L. & Com. 99 (1994).<br />
*Jeffrey Lubbers, ''Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995'', 49 Admin. L. Rev. 111 (1997).<br />
*Richard M. Neustadt, ''Taming the Paperwork Tiger: An Experiment in Regulatory Management'', Regulation 28, Jan./Feb. 1981.<br />
*James T. O’Reilly, ''Who’s on First?: The Role of the Office of Management and Budget in Federal Information Policy'', 10 J. Legis. 95 (1983).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201988-10%20PERRITT%20Elec%20Acqu%20%2B%20Release%20of%20Info%201988%20ACUS%20601.pdf Electronic Acquisition and Release of Federal Agency Information] (Oct. 1, 1988) (report to ACUS).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201990-05%20PERRITT%20ELec%20Records%20Mgmt%20%2B%20Archives%201990%20ACUS%20389.pdf Federal Agency Electronic Records Management and Archives] (1990) (report to ACUS).<br />
*David Plocher, ''The Paperwork Reduction Act of 1995: A Second Chance for Information Resources Management (Reauthorization of the 1980 Act)'', Gov’t Info. Q. 271 (1997).<br />
*Robert Rosacher & Thomas Davies, ''An Analysis of Federal Income Tax Complexity Utilizing Internal Revenue Service Estimates for Taxpayer Paperwork Burden'', 45 Oil & Gas Tax Q. 791 (1997).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/Draft-PRA-Report-2-15-12.pdf The Paperwork Reduction Act: Benefits, Costs and Directions for Reform, Government Information Quarterly] (Feb. 15, 2012) (report to ACUS).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS)<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
</div><br />
<br />
===Agency Regulations===<br />
Office of Management and Budget ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320])<br />
<br />
==Statutory Provisions==<br />
Paperwork Reduction Act<br />
<br />
Title 44 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim Chapter 35, Subchapter I—Federal Information Policy]<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501. Purposes]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim § 3502. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3503&num=0&edition=prelim § 3503. Office of Information and Regulatory Affairs]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim § 3504. Authority and functions of Director]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3505&num=0&edition=prelim § 3505. Assignment of tasks and deadlines]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506. Federal agency responsibilities]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507. Public information collection activities; submission to Director; approval and delegation]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3508&num=0&edition=prelim § 3508. Determination of necessity for information; hearing]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3509&num=0&edition=prelim § 3509. Designation of central collection agency]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3510&num=0&edition=prelim § 3510. Cooperation of agencies in making information available]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3511&num=0&edition=prelim § 3511. Establishment and operation of Government Information Locator Service]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512. Public protection]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3513&num=0&edition=prelim § 3513. Director review of agency activities; reporting; agency response]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3514&num=0&edition=prelim § 3514. Responsiveness to Congress]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3515&num=0&edition=prelim § 3515. Administrative powers]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim § 3516. Rules and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3517&num=0&edition=prelim § 3517. Consultation with other agencies and the public]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518. Effect on existing laws and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3519&num=0&edition=prelim § 3519. Access to information]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3520&num=0&edition=prelim § 3520. Establishment of task force on information collection and dissemination]<br />
</div></div>MGluthhttps://sourcebook.acus.gov/index.php?title=Paperwork_Reduction_Act&diff=1670Paperwork Reduction Act2023-08-15T20:26:57Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim 3501–3521] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg2812.pdf Pub. L. No. 96-511], 94 Stat. 2812, Dec. 11, 1980; amended by [https://history.nih.gov/research/downloads/PL99-591.pdf Pub. L. No. 99-591], Title I, § 101(m), 100 Stat. 3341-308, 3341-335, Oct. 18, 1986; amended and re-codified by [https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13], § 2, 109 Stat. 163, May 22, 1995; amended by [https://www.govinfo.gov/content/pkg/PLAW-106publ398/pdf/PLAW-106publ398.pdf Pub. L. 106-398], Sec. 1 [[div. A], title X, §§ 1064(a)-(b)], 114 Stat. 1654, 1654A-275, Oct. 30, 2000; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ198/pdf/PLAW-107publ198.pdf Pub. L. No. 107-198], §§ 2–3, 116 Stat. 732, June 28, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ217/pdf/PLAW-107publ217.pdf Pub. L. No. 107-217], § 3(1), 116 Stat. 1301, Aug. 21, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ296/pdf/PLAW-107publ296.pdf Pub. L. No. 107-296], § 1005(c), 116 Stat. 2273, Nov. 25, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ347/pdf/PLAW-107publ347.pdf Pub. L. No. 107-347], title III, § 305(c)(3), 116 Stat. 2961, Dec. 17, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-109publ435/pdf/PLAW-109publ435.pdf Pub. L. No. 109-435], Title VI, § 604(e), 120 Stat. 3242, Dec. 20, 2006; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ289/pdf/PLAW-110publ289.pdf Pub. L. No. 110-289], Div. A, Title II, § 1216(e), 122 Stat. 2792, July 30, 2008; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ203/pdf/PLAW-110publ203.pdf Pub. L. No. 111-203], Title III, Subtitle A, § 315, Title X, Subtitle H, § 1100D, 124 Stat. 1524, 124 Stat. 2111, July 21, 2010; amended by [https://www.govinfo.gov/content/pkg/PLAW-113publ235/pdf/PLAW-113publ235.pdf Pub. L. No. 113-235], 128 Stat. 2537, Dec. 16, 2014; amended by [https://www.govinfo.gov/content/pkg/PLAW-115publ435/pdf/PLAW-115publ435.pdf Pub. L. No. 115-435], Title II, § 202, 132 Stat. 5534, Jan. 14, 2019.<br />
<br />
'''Lead Agency:''' <br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Management and Budget, Office of Information and Regulatory Affairs]<br />
==Overview==<br />
One of the main purposes of the Paperwork Reduction Act (PRA) is to “minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons . . . ; ensure the greatest possible public benefit . . . of information collected . . . ; [and] and minimize the cost to the Federal Government of the creation, collection, maintenance, use, dissemination, and disposition of information” (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501]). The PRA statutorily established the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and assigned it responsibility for coordinating government information policies, including approving agency collections of information. The PRA applies to all agencies in the executive branch, as well as to the independent regulatory agencies. Only very narrow functions are exempted from its coverage: (1) federal criminal matters or actions; (2) civil and administrative actions and investigations of specified individuals or entities; (3) compulsory process issued in connection with antitrust proceedings; and (4) federal intelligence activities carried out under presidential executive order (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518]).<br />
<br />
In June 2019, OIRA launched an online [https://pra.digital.gov/about/ Paperwork Reduction Act Guide]. The PRA Guide is a plain language guide which answers the most common questions, like “What is the PRA for?”, “Do I need clearance?”, and “What’s the process?” It aims to give federal employees a strong understanding of the PRA.<br />
<br />
===Basic Clearance Requirement===<br />
The PRA assigns to OIRA the function of approving information collections. It provides that agencies “shall not conduct or sponsor the collection of information” without first obtaining the actual or inferred approval of the Director of OMB, who will determine whether the information collection is necessary for the proper performance of the agency’s functions ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(a)(2)]). The PRA (§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(3)]) defines “collection of information” as: <blockquote>The obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling it either—answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.</blockquote>The 1995 amendments amended the definition of “collection of information” in § 3502(3) explicitly to include requiring persons to collect information for the purpose of disclosing it to the public or third parties as opposed to federal agencies only, thereby overruling [https://cdn.loc.gov/service/ll/usrep/usrep494/usrep494026/usrep494026.pdf Dole v. United Steelworkers of America], 494 U.S. 26 (1990).<br />
<br />
The PRA forbids OMB from approving any information collection for a period of more than three years. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim 3507(g)]. Failure to obtain OMB approval of a collection of information triggers operation of the PRA’s “public protection provision” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512]), which provides that “no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if—(1) the collection of information does not display a valid control number assigned by the Director [of OMB] . . . ; or (2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.” Although there have been numerous attempts to utilize the public protection provision to challenge agency collections of information or as a defense to actions for the failure to file required documents or for filing false information, they have been unsuccessful almost without exception. Indeed, the only exceptions appear to be two cases prosecuting persons for mining on Forest Service land without having filed the required plan of operations, a requirement that did not contain a valid control number. ''See United States v. Hatch'', 919 F.2d 1394 (9th Cir. 1990); ''United States v. Smith'', 866 F.2d 1092 (9th Cir. 1989).<br />
<br />
===Clearance Procedure===<br />
<br />
The PRA provides a general set of clearance procedures for approving agency information collections, with more specific procedures prescribed for information collections imposed through notice-and-comment rulemakings.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(d)] prescribes the following procedure for information collections contained in rules promulgated following notice and comment:<br />
<br />
#Each agency shall forward to OMB a copy of any proposed rule which contains a collection of information, and any information that OMB deems necessary to make the determination. This information must be transmitted no later than publication of the notice of proposed rulemaking (NPRM) in the ''Federal Register''.<br />
#Within 60 days after the notice of proposed rulemaking is published in the ''Federal Register'', OMB may file public comments on the collection of information contained in the proposed rule.<br />
#When a final rule is published in the ''Federal Register'', the agency shall explain how any collection of information contained in the final rule responds to the comments filed by OMB or the public, or the reason the comments were rejected.<br />
#If OMB has received notice and failed to comment on an agency rule within 60 days after the notice of proposed rulemaking, OMB may not disapprove any collection of information specifically contained in that rule.<br />
#However, OMB may disapprove a collection of information if (A) the collection of information was not specifically required by an agency rule; (B) the agency failed to comply with the submission requirements; (C) OMB finds within 60 days after publication of the final rule that the agency’s response to OMB’s comments were unreasonable; or (D) OMB determines the agency has substantially modified the collection of information in the final rule without giving OMB 60 days to review the modified requirement.<br />
#OMB’s decision to disapprove the collection of information in the rule, and its reasons for that decision, must be made publicly available and include an explanation of the reasons for such decision. But OMB’s decision to approve or not act upon a rule is not subject to judicial review.<br />
<br />
OMB’s regulations implementing the PRA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320]) have added certain requirements to the clearance process for collections of information contained in proposed agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_111&rgn=div8 5 C.F.R. § 1320.11]), current agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 5 C.F.R. § 1320.12]), and clearance of collections other than in proposed or current rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_110&rgn=div8 5 C.F.R. § 1320.10]).<br />
<br />
*Agencies should submit collections of information contained in proposed rules to the ''Federal Register'' for public comment. The preamble to the NPRM shall state that the collection of information has been submitted for OMB review and direct that comments be filed with the desk officer for the agency in OIRA/OMB (§ 1320.11(a)). OMB will provide at least 30 days for public comment (§ 1320.11(e)).<br />
*Upon publication of the final rule, the agency shall explain how the collection of information in the final rule responds to comments and identify and explain modifications made to the rule (§ 1320.11(f)).<br />
*On or before the date of publication of the final rule, the agency will submit the final rule to OMB, unless the approved proposed rule was not materially changed. OMB then has 60 days to approve, disapprove, or order a change in the final rule (§ 1320.11(h)). If OMB approves, it will assign an OMB control number (§ 1320.11(i)).<br />
<br />
For information collections that are not contained in new rules promulgated after notice and comment, there is a different process:<br />
<br />
*On or before the day an information collection proposal is submitted to OMB for clearance, the agency must send a notice to the ''Federal Registe''r, in which the agency advises the public that OMB approval has been requested and that the public has 30 to submit comments on the proposal to the OIRA/OMB desk officer for the agency (§ 1320.10(a)).<br />
*Within 60 days after receipt of the agency’s submission, OMB will notify the agency of its decision to approve or disapprove, in whole or in part, the information collection. OMB will provide at least 30 days for public comment before making a decision (§ 1320.10(b)).<br />
*If OMB does not act within the 60-day period, the agency can ask OMB to assign the required control number (valid for one year in these circumstances), and OMB must do so without delay (§ 1320.10(c)).<br />
<br />
OMB has also developed procedures that govern clearance for information collections in existing rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 § 1320.12]). The procedures are intended to prevent expiration of OMB approval for an information collection before the agency has undertaken the necessary administrative procedure to extend OMB’s three-year approval or effect a repeal or amendment of the rule containing the collection provision. The agency is required to seek public comment on the requirement and initiate the OMB review process not later than 60 days before the existing OMB approval expires. If OMB indicates disapproval of the existing information collection provision, OMB must publish an explanation in the ''Federal Register'' and instruct the agency to initiate a rulemaking to amend or rescind the provision, consistent with the [[Administrative Procedure Act]] (APA) or other applicable requirements.<br />
<br />
Finally, OMB regulations ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_16&rgn=div8 § 1320.6(e)]) make clear that the public protection provision in § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim 3512] of the PRA does not preclude the government from imposing a penalty for failing to comply with a collection of information that is mandated by statute, even in the absence of a valid OMB control number. Several courts have so held: [http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2007/D11-14/C:06-3635:J:Easterbrook:aut:T:op:N:0:S:0 United States v. Patridge], 507 F.3d 1092 (7th Cir. 2007), ''reh’g and reh’g en banc denied, cert. denied'', 552 U.S. 1280, ''reh’g denied'', 553 U.S. 1062, ''cert. denied'', 555 U.S. 909, ''post-conviction relief denied'', 2010 WL 3025043; ''Salberg v. United States'', 969 F.2d 379, 384 (7th Cir. 1992); ''United States v. Neff'', 954 F.2d 698, 699–700, (11th Cir. 1992); ''United States v. Hicks'', 947 F.2d 1356, 1359 (9th Cir. 1991); ''United States v. Kerwin'', 945 F.2d 92 (5th Cir. 1991); ''United States v. Wunder'', 919 F.2d 34, 38 (6th Cir. 1990).<br />
<br />
===Alternative Procedures===<br />
The PRA contains several variations from the general review procedures for review of agency information collections. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(j)] establishes a “fast-track” review procedure for emergency situations, which is available on request by agency heads. OMB regulations provided a stringent test for granting such requests ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_113&rgn=div8 § 1320.13]).<br />
<br />
The PRA also authorizes the OMB director to delegate his authority to approve proposed collections of information to the senior official an agency designates as its Chief Information Officer ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506(a)(2)]), if that person “is sufficiently independent of program responsibility to evaluate fairly whether proposed information collection requests should be approved and has sufficient resources to carry out this responsibility effectively” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(i)]). Such an official must comply with OMB’s regulations in reviewing his or her agency’s information collection provisions (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_17&rgn=div8 § 1320.7]).<br />
<br />
OMB’s general clearance procedures are subject to the PRA’s provision that independent regulatory agencies may, by majority vote, override an OMB decision disapproving a proposed information collection (5 U.S.C.[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(f)]; 5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_115&rgn=div8 § 1320.15]). The PRA also contains the only extant statutory definition of “independent regulatory agency” in 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(5)], which has been cross-referenced in a number of other statutes.<br />
<br />
===Agency Certifications===<br />
The regulations (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=502d3fc456f2ea6fe5ea737ddd44990b&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(1)]) further describe the standard: an agency must show that all reasonable steps have been taken to ensure that the collection of information is the least burdensome necessary, that it is not duplicative of information otherwise accessible to the agency, and that the collection of information has practical utility.<br />
<br />
In addition, OMB has established general guidelines (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(2)]) that will be applied unless the agency can demonstrate the need for an exception to them. Among other things, OMB will generally not approve a collection of information<br />
<br />
#that requires reporting more often than quarterly;<br />
#that requires a written response in fewer than 30 days after receipt;<br />
#that requires respondents to submit more than one original and two copies of a document;<br />
#that requires persons to retain records (other than health, medical, contract, grant, or tax records) for more than three years;<br />
#that is not a statistical survey designed to produce valid and reliable statistical results;<br />
#requires the use of a statistical data classification that has not been reviewed and approved by OMB;<br />
#that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or<br />
#that requires respondents to submit proprietary, trade secret, or other confidential information, unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.<br />
<br />
Also pertinent to OMB’s authority is § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim 3518(e)] of the PRA, which states:<blockquote>Nothing in [the PRA] shall be interpreted as increasing or decreasing the authority of the President, the Office of Management and Budget or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies, and offices, including the substantive authority of any Federal agency to enforce the civil rights laws.</blockquote><br />
<br />
===Information Management===<br />
The PRA also authorizes OMB to develop and implement uniform policies on information resources management by federal agencies. OMB has done this through [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular A-130], which sets out various policies agencies are to use in managing government information. <br />
<br />
==Legislative History==<br />
The Paperwork Reduction Act of 1980 replaced the Federal Reports Act of 1942 ([http://uscode.house.gov/statviewer.htm?volume=56&page=1078# Pub. L. No. 77-831]) as the basic statute controlling paperwork requirements imposed on the public by the federal government. The PRA was amended significantly in 1986 and in minor ways in ensuing years, and then amended and completely recodified in 1995.<br />
<br />
The PRA was originally enacted as part of the regulatory reform movement of the 1970s. Reacting to growing public concern over the burden imposed by federal information collections, Congress established the Commission on Federal Paperwork in late 1974. The Commission, in its report in 1977, made 770 recommendations for reducing the federal paperwork burden. Legislation implementing some of the Recommendations was introduced in both the 95th and 96th Congresses. The PRA was passed in November 1980 and signed by President Carter on December 11, 1980. ''See'' William Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
<br />
Conflicts over the interpretations of certain provisions of the PRA resulted in amendments enacted in 1986. Among the amendments was language clarifying the relationship between the procedures required for clearance of information collections in proposed rules and other proposed information collections.<br />
<br />
The 1995 amendments updated, strengthened, and completely recodified the Paperwork Reduction Act of 1980. The goals were the same as in the 1980 Act—to strengthen OMB and agency paperwork reduction efforts, to improve OMB and agency information resources management, and to encourage and provide for public participation in reduction efforts and management decisions. In order to achieve these goals, the 1995 Act clarified the scope of OMB review, enhanced opportunities for public participation, expanded the PRA’s public protection provisions, and specified the agency paperwork reduction responsibilities.<br />
<br />
It also settled the major question of whether agency rules that require businesses or individuals to maintain information for the benefit of third parties or the public were covered by the PRA. The Supreme Court had ruled in ''Dole v. United Steelworkers'', 494 U.S. 26 (1990), that the PRA did not so require. But the 1995 amendments made clear that it does now.<br />
<br />
In 2000, Congress changed references from “chapter” to “subchapter.”<br />
<br />
In 2002, Congress made a number of minor amendments. One eliminated references to the Computer Security Act of 1987 ([http://uscode.house.gov/statutes/pl/100/235.pdf Pub. L. No. 100-235]) and the Clinger-Cohen Act of 1996 (40 U.S.C. § 1401) and substituted references to sections 11332 and 11103 of title 40.<br />
<br />
In 2006, Congress substituted “Postal Regulatory Commission” for “Postal Rate Commission” and in 2008 “Federal Housing Finance Agency” for “Federal Housing Finance Board.”<br />
<br />
In 2010, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act ([https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203]), changes were made to the PRA to take account of the creation of the Bureau of Consumer Finance Protection and new responsibilities of the Office of the Comptroller of the Currency.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Paperwork and Redtape Reduction Act of 1979'', Hearings Before Subcomm. on Federal Spending Practices and Open Gov’t of the S. Comm. on Gov’tal Affairs, 96th Cong. (1979).<br />
*''Paperwork Reduction Act of 1980'', Hearings on H.R.6410 Before Subcomm. of the H. Comm. on Gov’t Operations, 96th Cong. (1980).<br />
*Report on the Paperwork Reduction Act, H.R. Rep. No. 835 (1980).<br />
*Report on the Paperwork Reduction Act of 1980, S. Rep. No. 930 (1980).<br />
*''The Federal Paperwork Burden: Identifying the Major Problems'', Hearings Before the Subcomm. on Fed. Expenditures, Research and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Legislation and Nat’l Sec. of the H. Comm. on Gov’t Operations, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Fed. Expenditures, Research, and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1982).<br />
*''Oversight of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Info. Mgmt. and Regulatory Affairs of the S. Comm. on Gov’tal Affairs, 98th Cong. (1983).<br />
*''Report to Accompany S.2230'', S. Comm. on Gov’tal Affairs, 99th Cong., 2d Sess. (1986).<br />
*''Reauthorization of the Paperwork Reduction Act'', Hearings Before the Subcomm. on Gov’t Info. and Regulations, S. Comm. on Gov’tal Affairs, 101st Cong. (1989).<br />
*''Reauthorization of OMB’s Office of Information and Regulatory Affairs'': Hearings Before the S. Comm. on Gov’tal Affairs, 101st Cong. (1990).<br />
*Federal Information Resources Management Act, S. Rep. No. 101-487 (1990).<br />
*Paperwork Reduction and Federal Information Resources Management Act of 1990, H. Rep. No. 101-927 (1990).<br />
*''Restraining Paperwork Burdens on Small Business: Implementation of the “Paperwork Reduction Act of 1980” and Recommendations to Make It More Effective'', Hearings Before the H. Comm. on Small Bus., 102nd Cong. (1991).<br />
*''The Paperwork Reduction Act and Its Impact on Small Business'', Hearing Before the H. Comm. on Small Bus., 103d Cong. (1993).<br />
*Paperwork Reduction Act of 1994, [https://www.congress.gov/103/bills/s560/BILLS-103s560rs.pdf S. Rep. No. 103-392] (1994).<br />
*''The Paperwork Reduction Act'', Hearing Before the H. Comm. on Small Bus., 104th Cong. (1995).<br />
*H.R. 830, ''Paperwork Reduction Act and Risk Assessment and Cost/Benefit Analysis for New Regulations'', Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Gov’t Reform and Oversight Comm., 108th Cong. (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/srpt8/CRPT-104srpt8.pdf S. Rep. No. 104-8] (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H. R. Rep. No. 104-37] (1995).<br />
*Conference Report on S.244, Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt99/CRPT-104hrpt99.pdf H. R. Rep. No. 104-99] (1995).<br />
*Small Business Paperwork Reduction Act Amendments of 1998, [https://www.congress.gov/105/crpt/hrpt462/CRPT-105hrpt462-pt1.pdf H.R. Rep. No. 105-462] (1998).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-106hhrg70435/pdf/CHRG-106hhrg70435.pdf Reinventing Paperwork?: The Clinton-Gore Administration’s Record on Paperwork Reduction], Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 106th Cong. (2000).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg79868/pdf/CHRG-107hhrg79868.pdf Paperwork Inflation—Past Failures and Future Plans]: Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2001).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg85610/pdf/CHRG-107hhrg85610.pdf Paperwork Inflation—the Growing Burden on America]: Hearing Before the Subcomm. on Energy, Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2002).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg87418/pdf/CHRG-108hhrg87418.pdf Mid-Term Report Card: Is the Bush Administration Doing Enough on Paperwork Reduction?], Hearing Before the H. Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs of the Comm. on Gov’t Reform, 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg90015/pdf/CHRG-108hhrg90015.pdf Paperwork and Regulatory Improvements Act of 2003], Hearing Before the H. Gov’t Reform Comm., 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg95798/pdf/CHRG-108hhrg95798.pdf What Is the Bush Administration’s Economic Growth Plan Component for Paperwork Reduction?], Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004).<br />
*Paperwork and Regulatory Improvements Act of 2004, [https://www.congress.gov/108/crpt/hrpt490/CRPT-108hrpt490-pt1.pdf H.R. Rep. No. 108-490] (2004).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22202/pdf/CHRG-109hhrg22202.pdf Less Is More: The Increasing Burden of Taxpayer Paperwork], Hearing Before the H. Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22572/pdf/CHRG-109hhrg22572.pdf Reducing the Paperwork Burden on the Public: Are Agencies Doing All They Can?], Hearing Before the Subcomm. on Regulatory Affairs of the H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg29707/pdf/CHRG-109hhrg29707.pdf The Paperwork Reduction Act at 25: Opportunities to Strengthen and Improve the Law], Hearing Before the Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2006).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg40601/pdf/CHRG-110hhrg40601.pdf Full Committee Hearing on Improving the Paperwork Reduction Act for Small Businesses], H. Comm. on Small Bus., 110th Cong. (2008).<br />
*[https://www.congress.gov/111/crpt/hrpt517/CRPT-111hrpt517.pdf Dodd-Frank Wall Street Reform and Consumer Protection Act: Conference Report to Accompany H.R. 4173], H. Comm. on Fin. Services 111th Cong. (2010).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg24759/pdf/CHRG-115hhrg24759.pdf Evaluating the Paperwork Reduction Act: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017) ([https://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=399797 video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg27068/pdf/CHRG-115hhrg27068.pdf Evaluating the Paperwork Reduction Act Part II: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017).<br />
</div><br />
<br />
===OMB/OIRA Documents and Resources===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
====OIRA Memoranda for the Heads of Executive Departments and Independent Regulatory Agencies====<br />
<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf Social Media, Web-Based Interactive Technologies, and the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/inforeg/PRAPrimer_04072010.pdf Information Collection Under the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/inforeg/PRA_Gen_ICRs_5-28-2010.pdf Paperwork Reduction Act–Generic Clearances] (May 28, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2011/m11-26.pdf New Fast-Track Process for Collecting Service Delivery Feedback Under the Paperwork Reduction Act] (June 15, 2011).<br />
*[https://www.dol.gov/sites/default/files/oira-reducing-rep-paperwork-burdens-2012.pdf Reducing Reporting and Paperwork Burdens] (June 22, 2012).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/memos/2014/web-based-interactive-technologies-data-search-tools-calculators-paperwork-reduction-act.pdf Web-based Interactive Technologies: Data Search Tools, Calculators, and the Paperwork Reduction Act] (Sept. 5, 2014).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/pra_flexibilities_memo_7_22_16_finalI.pdf Flexibilities under the Paperwork Reduction Act for Compliance with Information Collection Requirements] (July 22, 2016)<br />
</div><br />
====Other OMB/OIRA Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular No. A-130: Managing Information as a Strategic Resource]<br />
*''Information Collection Review Handbook'' (1989); superseded by OMB/OIRA, ''The Paperwork Reduction Act, of 1995: Implementing Guidance'' (preliminary draft, Feb. 3, 1997).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/1998_OMB_Bulletin_No_98_03.pdf Bulletin 97-03, Fiscal Year 1996 Information Streamlining Plan and Information Collection Budget].<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/icb/2005_icb_final.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2005] (May 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/icb/fy2006_icb_revised.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2006 (revised version)] (Dec. 2006).<br />
*[https://www.cio.noaa.gov/itmanagement/pdfs/OMBSurveyGuidance_0106.pdf Questions and Answers When Designing Surveys for Information Collections] (Jan. 2006).<br />
*''Information Collection Budgets'' (fiscal years 1998–2014).<br />
*[https://www.usaid.gov/sites/default/files/documents/1868/OMB%2083-I%20(Paperwork%20Reduction%20Act%20Submission).pdf OMB Form 83-I] (rev’d Feb. 2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-10.pdf Improving Access to Public Benefits Programs Through the Paperwork Reduction Act] (April 13, 2022)<br />
</div><br />
<br />
====[https://pra.digital.gov/ PRA Digital.gov Guide]====<br />
<br />
===ACUS Recommendations===<br />
<br />
*2012-4 [https://www.acus.gov/sites/default/files/documents/Final-Recommendation-2012-4-Paperwork-Reduction-Act.pdf Paperwork Reduction Act]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/GGD 83-35, [https://www.gao.gov/assets/140/139988.pdf Implementing the Paperwork Reduction Act: Some Progress, But Many Problems Remain] (1983).<br />
*GAO/T-GGD-99-78, [https://www.gao.gov/archive/1999/gg99078t.pdf Paperwork Reduction Act—Burden Increases and Unauthorized Information Collections], Testimony of L. Nye Stevens, Director, Federal Management and Workforce Issues, General Government Division before the House Subcomm. on Nat’l Econ. Growth, Nat. Resources and Regulatory Affairs; and the Subcomm. on Gov’t Mgmt., Info., and Tech. of the Comm. on Gov’t Reform (Apr. 15, 1999).<br />
*GAO/T-GGD-00-114, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-00-114/pdf/GAOREPORTS-T-GGD-00-114.pdf Paperwork Reduction Act: Burden Increases at IRS and Other Agencies] (2000).<br />
*GAO-02-651R, [https://www.gao.gov/assets/100/91241.pdf Paperwork Reduction Act: Changes Needed to Annual Report] (2002).<br />
*GAO-05-424, [https://www.gao.gov/assets/250/246399.pdf Paperwork Reduction Act: New Approach May Be Needed to Reduce Government Burden on Public] (2005).<br />
*GAO-05-909R, [https://www.gao.gov/assets/100/93398.pdf Paperwork Reduction Act: Subcommittee Questions Concerning the Act’s Information Collection Provisions] (2005).<br />
*GAO-06-974T, [https://www.gao.gov/assets/120/114436.pdf Paperwork Reduction Act: Increase in Estimated Burden Hours Highlights Need for New Approach] (2006).<br />
*GAO-07-62, [https://www.gao.gov/assets/260/253535.pdf Federal Information Collection: A Reexamination of the Portfolio of Major Federal Household Surveys Is Needed] (2006).<br />
*GAO-18-381, [https://www.gao.gov/assets/700/693057.pdf Paperwork Reduction Act: Agencies Could Better Leverage Review Processes and Public Outreach to Improve Burden Estimates] (2018)<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Comm’n on Fed. Paperwork, ''Final Summary Report'' (1977).<br />
*Comm’n on Fed. Paperwork, ''The Reports Clearance Process'' (1977).<br />
*Harold C. Relyea, Cong. Research Serv., RL30590, ''Paperwork Reduction Act Reauthorization and Government Information Management Issues'' (2007).<br />
*Curtis Copeland & Vanessa K. Burrows, Cong. Research Serv., R40636, ''Paperwork Reduction Act: OMB and Agency Responsibilities and Burden Estimates'' (2009).<br />
*Small Bus. Admin., Office of Advocacy, ''Small Business Paperwork: Problems and Progress'' (1983).<br />
*Office of Pers. Mgmt., [https://www.opm.gov/about-us/open-government/digital-government-strategy/fitara/paperwork-reduction-act-guide.pdf Paperwork Reduction Act (PRA) Guide] (2011).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Eugene Bardach, ''Self-Regulation and Regulatory Paperwork, in Social Regulation: Strategies for Reform'' (E. Bardach and R. Kagan eds., Inst. for Contemporary Studies 1982).<br />
*Pamela M. Foster, Comment, ''A Limit to OMB’s Authority Under the Paperwork Reduction Act in Dole v. United Steelworkers of America: A Step in the Right Direction'', 6 Admin. L. J. Am. U. 153 (1992).<br />
*William F. Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
*Murray A. Indick, Ronald J. Greene & Daniel Squire, ''The Economic Growth and Regulatory Paperwork Reduction Act of 1996'', 114 Banking L.J. 298 (1997).<br />
*Andrew L. Levy, ''The Paperwork Reduction Act of 1980: Unnecessary Burdens and Unrealized Efficiency'', 14 J. L. & Com. 99 (1994).<br />
*Jeffrey Lubbers, ''Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995'', 49 Admin. L. Rev. 111 (1997).<br />
*Richard M. Neustadt, ''Taming the Paperwork Tiger: An Experiment in Regulatory Management'', Regulation 28, Jan./Feb. 1981.<br />
*James T. O’Reilly, ''Who’s on First?: The Role of the Office of Management and Budget in Federal Information Policy'', 10 J. Legis. 95 (1983).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201988-10%20PERRITT%20Elec%20Acqu%20%2B%20Release%20of%20Info%201988%20ACUS%20601.pdf Electronic Acquisition and Release of Federal Agency Information] (Oct. 1, 1988) (report to ACUS).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201990-05%20PERRITT%20ELec%20Records%20Mgmt%20%2B%20Archives%201990%20ACUS%20389.pdf Federal Agency Electronic Records Management and Archives] (1990) (report to ACUS).<br />
*David Plocher, ''The Paperwork Reduction Act of 1995: A Second Chance for Information Resources Management (Reauthorization of the 1980 Act)'', Gov’t Info. Q. 271 (1997).<br />
*Robert Rosacher & Thomas Davies, ''An Analysis of Federal Income Tax Complexity Utilizing Internal Revenue Service Estimates for Taxpayer Paperwork Burden'', 45 Oil & Gas Tax Q. 791 (1997).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/Draft-PRA-Report-2-15-12.pdf The Paperwork Reduction Act: Benefits, Costs and Directions for Reform, Government Information Quarterly] (Feb. 15, 2012) (report to ACUS).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS)<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
</div><br />
<br />
===Agency Regulations===<br />
Office of Management and Budget ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320])<br />
<br />
==Statutory Provisions==<br />
Paperwork Reduction Act<br />
<br />
Title 44 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim Chapter 35, Subchapter I—Federal Information Policy]<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501. Purposes]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim § 3502. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3503&num=0&edition=prelim § 3503. Office of Information and Regulatory Affairs]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim § 3504. Authority and functions of Director]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3505&num=0&edition=prelim § 3505. Assignment of tasks and deadlines]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506. Federal agency responsibilities]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507. Public information collection activities; submission to Director; approval and delegation]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3508&num=0&edition=prelim § 3508. Determination of necessity for information; hearing]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3509&num=0&edition=prelim § 3509. Designation of central collection agency]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3510&num=0&edition=prelim § 3510. Cooperation of agencies in making information available]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3511&num=0&edition=prelim § 3511. Establishment and operation of Government Information Locator Service]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512. Public protection]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3513&num=0&edition=prelim § 3513. Director review of agency activities; reporting; agency response]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3514&num=0&edition=prelim § 3514. Responsiveness to Congress]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3515&num=0&edition=prelim § 3515. Administrative powers]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim § 3516. Rules and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3517&num=0&edition=prelim § 3517. Consultation with other agencies and the public]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518. Effect on existing laws and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3519&num=0&edition=prelim § 3519. Access to information]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3520&num=0&edition=prelim § 3520. Establishment of task force on information collection and dissemination]<br />
</div></div>MGluthhttps://sourcebook.acus.gov/index.php?title=Paperwork_Reduction_Act&diff=1669Paperwork Reduction Act2023-08-15T20:25:43Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim 3501–3521] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg2812.pdf Pub. L. No. 96-511], 94 Stat. 2812, Dec. 11, 1980; amended by [https://history.nih.gov/research/downloads/PL99-591.pdf Pub. L. No. 99-591], Title I, § 101(m), 100 Stat. 3341-308, 3341-335, Oct. 18, 1986; amended and re-codified by [https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13], § 2, 109 Stat. 163, May 22, 1995; amended by [https://www.govinfo.gov/content/pkg/PLAW-106publ398/pdf/PLAW-106publ398.pdf Pub. L. 106-398], Sec. 1 [[div. A], title X, §§ 1064(a)-(b)], 114 Stat. 1654, 1654A-275, Oct. 30, 2000; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ198/pdf/PLAW-107publ198.pdf Pub. L. No. 107-198], §§ 2–3, 116 Stat. 732, June 28, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ217/pdf/PLAW-107publ217.pdf Pub. L. No. 107-217], § 3(1), 116 Stat. 1301, Aug. 21, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ296/pdf/PLAW-107publ296.pdf Pub. L. No. 107-296], § 1005(c), 116 Stat. 2273, Nov. 25, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-107publ347/pdf/PLAW-107publ347.pdf Pub. L. No. 107-347], title III, § 305(c)(3), 116 Stat. 2961, Dec. 17, 2002; amended by [https://www.govinfo.gov/content/pkg/PLAW-109publ435/pdf/PLAW-109publ435.pdf Pub. L. No. 109-435], Title VI, § 604(e), 120 Stat. 3242, Dec. 20, 2006; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ289/pdf/PLAW-110publ289.pdf Pub. L. No. 110-289], Div. A, Title II, § 1216(e), 122 Stat. 2792, July 30, 2008; amended by [https://www.govinfo.gov/content/pkg/PLAW-110publ203/pdf/PLAW-110publ203.pdf Pub. L. No. 111-203], Title III, Subtitle A, § 315, Title X, Subtitle H, § 1100D, 124 Stat. 1524, 124 Stat. 2111, July 21, 2010; amended by [https://www.govinfo.gov/content/pkg/PLAW-113publ235/pdf/PLAW-113publ235.pdf Pub. L. No. 113-235], 128 Stat. 2537, Dec. 16, 2014; amended by [https://www.govinfo.gov/content/pkg/PLAW-115publ435/pdf/PLAW-115publ435.pdf Pub. L. No. 115-435], Title II, § 202, 132 Stat. 5534, Jan. 14, 2019.<br />
<br />
'''Lead Agency:''' <br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Management and Budget, Office of Information and Regulatory Affairs]<br />
==Overview==<br />
One of the main purposes of the Paperwork Reduction Act (PRA) is to “minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons . . . ; ensure the greatest possible public benefit . . . of information collected . . . ; [and] and minimize the cost to the Federal Government of the creation, collection, maintenance, use, dissemination, and disposition of information” (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501]). The PRA statutorily established the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and assigned it responsibility for coordinating government information policies, including approving agency collections of information. The PRA applies to all agencies in the executive branch, as well as to the independent regulatory agencies. Only very narrow functions are exempted from its coverage: (1) federal criminal matters or actions; (2) civil and administrative actions and investigations of specified individuals or entities; (3) compulsory process issued in connection with antitrust proceedings; and (4) federal intelligence activities carried out under presidential executive order (44 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518]).<br />
<br />
In June 2019, OIRA launched an online [https://pra.digital.gov/about/ Paperwork Reduction Act Guide]. The PRA Guide is a plain language guide which answers the most common questions, like “What is the PRA for?”, “Do I need clearance?”, and “What’s the process?” It aims to give federal employees a strong understanding of the PRA.<br />
<br />
===Basic Clearance Requirement===<br />
The PRA assigns to OIRA the function of approving information collections. It provides that agencies “shall not conduct or sponsor the collection of information” without first obtaining the actual or inferred approval of the Director of OMB, who will determine whether the information collection is necessary for the proper performance of the agency’s functions ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(a)(2)]). The PRA (§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(3)]) defines “collection of information” as: <blockquote>The obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling it either—answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States; or answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes.</blockquote>The 1995 amendments amended the definition of “collection of information” in § 3502(3) explicitly to include requiring persons to collect information for the purpose of disclosing it to the public or third parties as opposed to federal agencies only, thereby overruling [https://cdn.loc.gov/service/ll/usrep/usrep494/usrep494026/usrep494026.pdf Dole v. United Steelworkers of America], 494 U.S. 26 (1990).<br />
<br />
The PRA forbids OMB from approving any information collection for a period of more than three years. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim 3507(g)]. Failure to obtain OMB approval of a collection of information triggers operation of the PRA’s “public protection provision” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512]), which provides that “no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if—(1) the collection of information does not display a valid control number assigned by the Director [of OMB] . . . ; or (2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.” Although there have been numerous attempts to utilize the public protection provision to challenge agency collections of information or as a defense to actions for the failure to file required documents or for filing false information, they have been unsuccessful almost without exception. Indeed, the only exceptions appear to be two cases prosecuting persons for mining on Forest Service land without having filed the required plan of operations, a requirement that did not contain a valid control number. ''See United States v. Hatch'', 919 F.2d 1394 (9th Cir. 1990); ''United States v. Smith'', 866 F.2d 1092 (9th Cir. 1989).<br />
<br />
===Clearance Procedure===<br />
<br />
The PRA provides a general set of clearance procedures for approving agency information collections, with more specific procedures prescribed for information collections imposed through notice-and-comment rulemakings.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(d)] prescribes the following procedure for information collections contained in rules promulgated following notice and comment:<br />
<br />
#Each agency shall forward to OMB a copy of any proposed rule which contains a collection of information, and any information that OMB deems necessary to make the determination. This information must be transmitted no later than publication of the notice of proposed rulemaking (NPRM) in the ''Federal Register''.<br />
#Within 60 days after the notice of proposed rulemaking is published in the ''Federal Register'', OMB may file public comments on the collection of information contained in the proposed rule.<br />
#When a final rule is published in the ''Federal Register'', the agency shall explain how any collection of information contained in the final rule responds to the comments filed by OMB or the public, or the reason the comments were rejected.<br />
#If OMB has received notice and failed to comment on an agency rule within 60 days after the notice of proposed rulemaking, OMB may not disapprove any collection of information specifically contained in that rule.<br />
#However, OMB may disapprove a collection of information if (A) the collection of information was not specifically required by an agency rule; (B) the agency failed to comply with the submission requirements; (C) OMB finds within 60 days after publication of the final rule that the agency’s response to OMB’s comments were unreasonable; or (D) OMB determines the agency has substantially modified the collection of information in the final rule without giving OMB 60 days to review the modified requirement.<br />
#OMB’s decision to disapprove the collection of information in the rule, and its reasons for that decision, must be made publicly available and include an explanation of the reasons for such decision. But OMB’s decision to approve or not act upon a rule is not subject to judicial review.<br />
<br />
OMB’s regulations implementing the PRA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320]) have added certain requirements to the clearance process for collections of information contained in proposed agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_111&rgn=div8 5 C.F.R. § 1320.11]), current agency rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 5 C.F.R. § 1320.12]), and clearance of collections other than in proposed or current rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_110&rgn=div8 5 C.F.R. § 1320.10]).<br />
<br />
*Agencies should submit collections of information contained in proposed rules to the ''Federal Register'' for public comment. The preamble to the NPRM shall state that the collection of information has been submitted for OMB review and direct that comments be filed with the desk officer for the agency in OIRA/OMB (§ 1320.11(a)). OMB will provide at least 30 days for public comment (§ 1320.11(e)).<br />
*Upon publication of the final rule, the agency shall explain how the collection of information in the final rule responds to comments and identify and explain modifications made to the rule (§ 1320.11(f)).<br />
*On or before the date of publication of the final rule, the agency will submit the final rule to OMB, unless the approved proposed rule was not materially changed. OMB then has 60 days to approve, disapprove, or order a change in the final rule (§ 1320.11(h)). If OMB approves, it will assign an OMB control number (§ 1320.11(i)).<br />
<br />
For information collections that are not contained in new rules promulgated after notice and comment, there is a different process:<br />
<br />
*On or before the day an information collection proposal is submitted to OMB for clearance, the agency must send a notice to the ''Federal Registe''r, in which the agency advises the public that OMB approval has been requested and that the public has 30 to submit comments on the proposal to the OIRA/OMB desk officer for the agency (§ 1320.10(a)).<br />
*Within 60 days after receipt of the agency’s submission, OMB will notify the agency of its decision to approve or disapprove, in whole or in part, the information collection. OMB will provide at least 30 days for public comment before making a decision (§ 1320.10(b)).<br />
*If OMB does not act within the 60-day period, the agency can ask OMB to assign the required control number (valid for one year in these circumstances), and OMB must do so without delay (§ 1320.10(c)).<br />
<br />
OMB has also developed procedures that govern clearance for information collections in existing rules ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_112&rgn=div8 § 1320.12]). The procedures are intended to prevent expiration of OMB approval for an information collection before the agency has undertaken the necessary administrative procedure to extend OMB’s three-year approval or effect a repeal or amendment of the rule containing the collection provision. The agency is required to seek public comment on the requirement and initiate the OMB review process not later than 60 days before the existing OMB approval expires. If OMB indicates disapproval of the existing information collection provision, OMB must publish an explanation in the ''Federal Register'' and instruct the agency to initiate a rulemaking to amend or rescind the provision, consistent with the [[Administrative Procedure Act]] (APA) or other applicable requirements.<br />
<br />
Finally, OMB regulations ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_16&rgn=div8 § 1320.6(e)]) make clear that the public protection provision in § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim 3512] of the PRA does not preclude the government from imposing a penalty for failing to comply with a collection of information that is mandated by statute, even in the absence of a valid OMB control number. Several courts have so held: [http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2007/D11-14/C:06-3635:J:Easterbrook:aut:T:op:N:0:S:0 United States v. Patridge], 507 F.3d 1092 (7th Cir. 2007), ''reh’g and reh’g en banc denied, cert. denied'', 552 U.S. 1280, ''reh’g denied'', 553 U.S. 1062, ''cert. denied'', 555 U.S. 909, ''post-conviction relief denied'', 2010 WL 3025043; ''Salberg v. United States'', 969 F.2d 379, 384 (7th Cir. 1992); ''United States v. Neff'', 954 F.2d 698, 699–700, (11th Cir. 1992); ''United States v. Hicks'', 947 F.2d 1356, 1359 (9th Cir. 1991); ''United States v. Kerwin'', 945 F.2d 92 (5th Cir. 1991); ''United States v. Wunder'', 919 F.2d 34, 38 (6th Cir. 1990).<br />
<br />
===Alternative Procedures===<br />
The PRA contains several variations from the general review procedures for review of agency information collections. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim Section 3507(j)] establishes a “fast-track” review procedure for emergency situations, which is available on request by agency heads. OMB regulations provided a stringent test for granting such requests ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_113&rgn=div8 § 1320.13]).<br />
<br />
The PRA also authorizes the OMB director to delegate his authority to approve proposed collections of information to the senior official an agency designates as its Chief Information Officer ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506(a)(2)]), if that person “is sufficiently independent of program responsibility to evaluate fairly whether proposed information collection requests should be approved and has sufficient resources to carry out this responsibility effectively” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(i)]). Such an official must comply with OMB’s regulations in reviewing his or her agency’s information collection provisions (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_17&rgn=div8 § 1320.7]).<br />
<br />
OMB’s general clearance procedures are subject to the PRA’s provision that independent regulatory agencies may, by majority vote, override an OMB decision disapproving a proposed information collection (5 U.S.C.[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507(f)]; 5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_115&rgn=div8 § 1320.15]). The PRA also contains the only extant statutory definition of “independent regulatory agency” in 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim 3502(5)], which has been cross-referenced in a number of other statutes.<br />
<br />
===Agency Certifications===<br />
The regulations (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=502d3fc456f2ea6fe5ea737ddd44990b&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(1)]) further describe the standard: an agency must show that all reasonable steps have been taken to ensure that the collection of information is the least burdensome necessary, that it is not duplicative of information otherwise accessible to the agency, and that the collection of information has practical utility.<br />
<br />
In addition, OMB has established general guidelines (5 C.F.R. [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6590f23848222fab6317f1c1c11b185&mc=true&node=se5.3.1320_15&rgn=div8 § 1320.5(d)(2)]) that will be applied unless the agency can demonstrate the need for an exception to them. Among other things, OMB will generally not approve a collection of information<br />
<br />
#that requires reporting more often than quarterly;<br />
#that requires a written response in fewer than 30 days after receipt;<br />
#that requires respondents to submit more than one original and two copies of a document;<br />
#that requires persons to retain records (other than health, medical, contract, grant, or tax records) for more than three years;<br />
#that is not a statistical survey designed to produce valid and reliable statistical results;<br />
#requires the use of a statistical data classification that has not been reviewed and approved by OMB;<br />
#that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or<br />
#that requires respondents to submit proprietary, trade secret, or other confidential information, unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.<br />
<br />
Also pertinent to OMB’s authority is § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim 3518(e)] of the PRA, which states:<blockquote>Nothing in [the PRA] shall be interpreted as increasing or decreasing the authority of the President, the Office of Management and Budget or the Director thereof, under the laws of the United States, with respect to the substantive policies and programs of departments, agencies, and offices, including the substantive authority of any Federal agency to enforce the civil rights laws.</blockquote><br />
<br />
===Information Management===<br />
The PRA also authorizes OMB to develop and implement uniform policies on information resources management by federal agencies. OMB has done this through [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130], which sets out various policies agencies are to use in managing government information. <br />
<br />
==Legislative History==<br />
The Paperwork Reduction Act of 1980 replaced the Federal Reports Act of 1942 ([http://uscode.house.gov/statviewer.htm?volume=56&page=1078# Pub. L. No. 77-831]) as the basic statute controlling paperwork requirements imposed on the public by the federal government. The PRA was amended significantly in 1986 and in minor ways in ensuing years, and then amended and completely recodified in 1995.<br />
<br />
The PRA was originally enacted as part of the regulatory reform movement of the 1970s. Reacting to growing public concern over the burden imposed by federal information collections, Congress established the Commission on Federal Paperwork in late 1974. The Commission, in its report in 1977, made 770 recommendations for reducing the federal paperwork burden. Legislation implementing some of the Recommendations was introduced in both the 95th and 96th Congresses. The PRA was passed in November 1980 and signed by President Carter on December 11, 1980. ''See'' William Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
<br />
Conflicts over the interpretations of certain provisions of the PRA resulted in amendments enacted in 1986. Among the amendments was language clarifying the relationship between the procedures required for clearance of information collections in proposed rules and other proposed information collections.<br />
<br />
The 1995 amendments updated, strengthened, and completely recodified the Paperwork Reduction Act of 1980. The goals were the same as in the 1980 Act—to strengthen OMB and agency paperwork reduction efforts, to improve OMB and agency information resources management, and to encourage and provide for public participation in reduction efforts and management decisions. In order to achieve these goals, the 1995 Act clarified the scope of OMB review, enhanced opportunities for public participation, expanded the PRA’s public protection provisions, and specified the agency paperwork reduction responsibilities.<br />
<br />
It also settled the major question of whether agency rules that require businesses or individuals to maintain information for the benefit of third parties or the public were covered by the PRA. The Supreme Court had ruled in ''Dole v. United Steelworkers'', 494 U.S. 26 (1990), that the PRA did not so require. But the 1995 amendments made clear that it does now.<br />
<br />
In 2000, Congress changed references from “chapter” to “subchapter.”<br />
<br />
In 2002, Congress made a number of minor amendments. One eliminated references to the Computer Security Act of 1987 ([http://uscode.house.gov/statutes/pl/100/235.pdf Pub. L. No. 100-235]) and the Clinger-Cohen Act of 1996 (40 U.S.C. § 1401) and substituted references to sections 11332 and 11103 of title 40.<br />
<br />
In 2006, Congress substituted “Postal Regulatory Commission” for “Postal Rate Commission” and in 2008 “Federal Housing Finance Agency” for “Federal Housing Finance Board.”<br />
<br />
In 2010, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act ([https://www.govinfo.gov/content/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf Pub. L. No. 111-203]), changes were made to the PRA to take account of the creation of the Bureau of Consumer Finance Protection and new responsibilities of the Office of the Comptroller of the Currency.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Paperwork and Redtape Reduction Act of 1979'', Hearings Before Subcomm. on Federal Spending Practices and Open Gov’t of the S. Comm. on Gov’tal Affairs, 96th Cong. (1979).<br />
*''Paperwork Reduction Act of 1980'', Hearings on H.R.6410 Before Subcomm. of the H. Comm. on Gov’t Operations, 96th Cong. (1980).<br />
*Report on the Paperwork Reduction Act, H.R. Rep. No. 835 (1980).<br />
*Report on the Paperwork Reduction Act of 1980, S. Rep. No. 930 (1980).<br />
*''The Federal Paperwork Burden: Identifying the Major Problems'', Hearings Before the Subcomm. on Fed. Expenditures, Research and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Legislation and Nat’l Sec. of the H. Comm. on Gov’t Operations, 97th Cong. (1981).<br />
*''Implementation of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Fed. Expenditures, Research, and Rules of the S. Comm. on Gov’tal Affairs, 97th Cong. (1982).<br />
*''Oversight of the Paperwork Reduction Act of 1980'', Hearing Before the Subcomm. on Info. Mgmt. and Regulatory Affairs of the S. Comm. on Gov’tal Affairs, 98th Cong. (1983).<br />
*''Report to Accompany S.2230'', S. Comm. on Gov’tal Affairs, 99th Cong., 2d Sess. (1986).<br />
*''Reauthorization of the Paperwork Reduction Act'', Hearings Before the Subcomm. on Gov’t Info. and Regulations, S. Comm. on Gov’tal Affairs, 101st Cong. (1989).<br />
*''Reauthorization of OMB’s Office of Information and Regulatory Affairs'': Hearings Before the S. Comm. on Gov’tal Affairs, 101st Cong. (1990).<br />
*Federal Information Resources Management Act, S. Rep. No. 101-487 (1990).<br />
*Paperwork Reduction and Federal Information Resources Management Act of 1990, H. Rep. No. 101-927 (1990).<br />
*''Restraining Paperwork Burdens on Small Business: Implementation of the “Paperwork Reduction Act of 1980” and Recommendations to Make It More Effective'', Hearings Before the H. Comm. on Small Bus., 102nd Cong. (1991).<br />
*''The Paperwork Reduction Act and Its Impact on Small Business'', Hearing Before the H. Comm. on Small Bus., 103d Cong. (1993).<br />
*Paperwork Reduction Act of 1994, [https://www.congress.gov/103/bills/s560/BILLS-103s560rs.pdf S. Rep. No. 103-392] (1994).<br />
*''The Paperwork Reduction Act'', Hearing Before the H. Comm. on Small Bus., 104th Cong. (1995).<br />
*H.R. 830, ''Paperwork Reduction Act and Risk Assessment and Cost/Benefit Analysis for New Regulations'', Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Gov’t Reform and Oversight Comm., 108th Cong. (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/srpt8/CRPT-104srpt8.pdf S. Rep. No. 104-8] (1995).<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H. R. Rep. No. 104-37] (1995).<br />
*Conference Report on S.244, Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt99/CRPT-104hrpt99.pdf H. R. Rep. No. 104-99] (1995).<br />
*Small Business Paperwork Reduction Act Amendments of 1998, [https://www.congress.gov/105/crpt/hrpt462/CRPT-105hrpt462-pt1.pdf H.R. Rep. No. 105-462] (1998).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-106hhrg70435/pdf/CHRG-106hhrg70435.pdf Reinventing Paperwork?: The Clinton-Gore Administration’s Record on Paperwork Reduction], Hearing Before the Subcomm. on Nat’l Econ. Growth, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 106th Cong. (2000).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg79868/pdf/CHRG-107hhrg79868.pdf Paperwork Inflation—Past Failures and Future Plans]: Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2001).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg85610/pdf/CHRG-107hhrg85610.pdf Paperwork Inflation—the Growing Burden on America]: Hearing Before the Subcomm. on Energy, Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 107th Cong. (2002).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg87418/pdf/CHRG-108hhrg87418.pdf Mid-Term Report Card: Is the Bush Administration Doing Enough on Paperwork Reduction?], Hearing Before the H. Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs of the Comm. on Gov’t Reform, 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg90015/pdf/CHRG-108hhrg90015.pdf Paperwork and Regulatory Improvements Act of 2003], Hearing Before the H. Gov’t Reform Comm., 108th Cong. (2003).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-108hhrg95798/pdf/CHRG-108hhrg95798.pdf What Is the Bush Administration’s Economic Growth Plan Component for Paperwork Reduction?], Hearing Before the Subcomm. on Energy Policy, Nat. Res., and Regulatory Affairs, H. Comm. on Gov’t Reform, 108th Cong. (2004).<br />
*Paperwork and Regulatory Improvements Act of 2004, [https://www.congress.gov/108/crpt/hrpt490/CRPT-108hrpt490-pt1.pdf H.R. Rep. No. 108-490] (2004).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22202/pdf/CHRG-109hhrg22202.pdf Less Is More: The Increasing Burden of Taxpayer Paperwork], Hearing Before the H. Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg22572/pdf/CHRG-109hhrg22572.pdf Reducing the Paperwork Burden on the Public: Are Agencies Doing All They Can?], Hearing Before the Subcomm. on Regulatory Affairs of the H. Comm. on Gov’t Reform, 109th Cong. (2005).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg29707/pdf/CHRG-109hhrg29707.pdf The Paperwork Reduction Act at 25: Opportunities to Strengthen and Improve the Law], Hearing Before the Subcomm. on Regulatory Affairs, H. Comm. on Gov’t Reform, 109th Cong. (2006).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg40601/pdf/CHRG-110hhrg40601.pdf Full Committee Hearing on Improving the Paperwork Reduction Act for Small Businesses], H. Comm. on Small Bus., 110th Cong. (2008).<br />
*[https://www.congress.gov/111/crpt/hrpt517/CRPT-111hrpt517.pdf Dodd-Frank Wall Street Reform and Consumer Protection Act: Conference Report to Accompany H.R. 4173], H. Comm. on Fin. Services 111th Cong. (2010).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg24759/pdf/CHRG-115hhrg24759.pdf Evaluating the Paperwork Reduction Act: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017) ([https://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=399797 video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg27068/pdf/CHRG-115hhrg27068.pdf Evaluating the Paperwork Reduction Act Part II: Are Burdens Being Reduced?], Hearing Before the H. Comm. on Small Bus., 115th Cong. (2017).<br />
</div><br />
<br />
===OMB/OIRA Documents and Resources===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
====OIRA Memoranda for the Heads of Executive Departments and Independent Regulatory Agencies====<br />
<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf Social Media, Web-Based Interactive Technologies, and the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/inforeg/PRAPrimer_04072010.pdf Information Collection Under the Paperwork Reduction Act] (April 7, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/inforeg/PRA_Gen_ICRs_5-28-2010.pdf Paperwork Reduction Act–Generic Clearances] (May 28, 2010).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2011/m11-26.pdf New Fast-Track Process for Collecting Service Delivery Feedback Under the Paperwork Reduction Act] (June 15, 2011).<br />
*[https://www.dol.gov/sites/default/files/oira-reducing-rep-paperwork-burdens-2012.pdf Reducing Reporting and Paperwork Burdens] (June 22, 2012).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/memos/2014/web-based-interactive-technologies-data-search-tools-calculators-paperwork-reduction-act.pdf Web-based Interactive Technologies: Data Search Tools, Calculators, and the Paperwork Reduction Act] (Sept. 5, 2014).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/inforeg/inforeg/pra_flexibilities_memo_7_22_16_finalI.pdf Flexibilities under the Paperwork Reduction Act for Compliance with Information Collection Requirements] (July 22, 2016)<br />
</div><br />
====Other OMB/OIRA Documents====<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular No. A-130: Managing Information as a Strategic Resource]<br />
*''Information Collection Review Handbook'' (1989); superseded by OMB/OIRA, ''The Paperwork Reduction Act, of 1995: Implementing Guidance'' (preliminary draft, Feb. 3, 1997).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/1998_OMB_Bulletin_No_98_03.pdf Bulletin 97-03, Fiscal Year 1996 Information Streamlining Plan and Information Collection Budget].<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/icb/2005_icb_final.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2005] (May 2005).<br />
*[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/icb/fy2006_icb_revised.pdf Managing Information Collection: Information Collection Budget of the United States Government, Fiscal Year 2006 (revised version)] (Dec. 2006).<br />
*[https://www.cio.noaa.gov/itmanagement/pdfs/OMBSurveyGuidance_0106.pdf Questions and Answers When Designing Surveys for Information Collections] (Jan. 2006).<br />
*''Information Collection Budgets'' (fiscal years 1998–2014).<br />
*[https://www.usaid.gov/sites/default/files/documents/1868/OMB%2083-I%20(Paperwork%20Reduction%20Act%20Submission).pdf OMB Form 83-I] (rev’d Feb. 2004).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2022/04/M-22-10.pdf Improving Access to Public Benefits Programs Through the Paperwork Reduction Act] (April 13, 2022)<br />
</div><br />
<br />
====[https://pra.digital.gov/ PRA Digital.gov Guide]====<br />
<br />
===ACUS Recommendations===<br />
<br />
*2012-4 [https://www.acus.gov/sites/default/files/documents/Final-Recommendation-2012-4-Paperwork-Reduction-Act.pdf Paperwork Reduction Act]<br />
*2018-1 [https://www.acus.gov/sites/default/files/documents/recommendation-2018-1-paperwork-reduction-act-efficiencies_1.pdf Paperwork Reduction Act Efficiencies]<br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/GGD 83-35, [https://www.gao.gov/assets/140/139988.pdf Implementing the Paperwork Reduction Act: Some Progress, But Many Problems Remain] (1983).<br />
*GAO/T-GGD-99-78, [https://www.gao.gov/archive/1999/gg99078t.pdf Paperwork Reduction Act—Burden Increases and Unauthorized Information Collections], Testimony of L. Nye Stevens, Director, Federal Management and Workforce Issues, General Government Division before the House Subcomm. on Nat’l Econ. Growth, Nat. Resources and Regulatory Affairs; and the Subcomm. on Gov’t Mgmt., Info., and Tech. of the Comm. on Gov’t Reform (Apr. 15, 1999).<br />
*GAO/T-GGD-00-114, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-00-114/pdf/GAOREPORTS-T-GGD-00-114.pdf Paperwork Reduction Act: Burden Increases at IRS and Other Agencies] (2000).<br />
*GAO-02-651R, [https://www.gao.gov/assets/100/91241.pdf Paperwork Reduction Act: Changes Needed to Annual Report] (2002).<br />
*GAO-05-424, [https://www.gao.gov/assets/250/246399.pdf Paperwork Reduction Act: New Approach May Be Needed to Reduce Government Burden on Public] (2005).<br />
*GAO-05-909R, [https://www.gao.gov/assets/100/93398.pdf Paperwork Reduction Act: Subcommittee Questions Concerning the Act’s Information Collection Provisions] (2005).<br />
*GAO-06-974T, [https://www.gao.gov/assets/120/114436.pdf Paperwork Reduction Act: Increase in Estimated Burden Hours Highlights Need for New Approach] (2006).<br />
*GAO-07-62, [https://www.gao.gov/assets/260/253535.pdf Federal Information Collection: A Reexamination of the Portfolio of Major Federal Household Surveys Is Needed] (2006).<br />
*GAO-18-381, [https://www.gao.gov/assets/700/693057.pdf Paperwork Reduction Act: Agencies Could Better Leverage Review Processes and Public Outreach to Improve Burden Estimates] (2018)<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Comm’n on Fed. Paperwork, ''Final Summary Report'' (1977).<br />
*Comm’n on Fed. Paperwork, ''The Reports Clearance Process'' (1977).<br />
*Harold C. Relyea, Cong. Research Serv., RL30590, ''Paperwork Reduction Act Reauthorization and Government Information Management Issues'' (2007).<br />
*Curtis Copeland & Vanessa K. Burrows, Cong. Research Serv., R40636, ''Paperwork Reduction Act: OMB and Agency Responsibilities and Burden Estimates'' (2009).<br />
*Small Bus. Admin., Office of Advocacy, ''Small Business Paperwork: Problems and Progress'' (1983).<br />
*Office of Pers. Mgmt., [https://www.opm.gov/about-us/open-government/digital-government-strategy/fitara/paperwork-reduction-act-guide.pdf Paperwork Reduction Act (PRA) Guide] (2011).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Eugene Bardach, ''Self-Regulation and Regulatory Paperwork, in Social Regulation: Strategies for Reform'' (E. Bardach and R. Kagan eds., Inst. for Contemporary Studies 1982).<br />
*Pamela M. Foster, Comment, ''A Limit to OMB’s Authority Under the Paperwork Reduction Act in Dole v. United Steelworkers of America: A Step in the Right Direction'', 6 Admin. L. J. Am. U. 153 (1992).<br />
*William F. Funk, ''The Paperwork Reduction Act: Paperwork Reduction Meets Administrative Law'', 24 Harv. J. on Legis. 1 (1987).<br />
*Murray A. Indick, Ronald J. Greene & Daniel Squire, ''The Economic Growth and Regulatory Paperwork Reduction Act of 1996'', 114 Banking L.J. 298 (1997).<br />
*Andrew L. Levy, ''The Paperwork Reduction Act of 1980: Unnecessary Burdens and Unrealized Efficiency'', 14 J. L. & Com. 99 (1994).<br />
*Jeffrey Lubbers, ''Paperwork Redux: The (Stronger) Paperwork Reduction Act of 1995'', 49 Admin. L. Rev. 111 (1997).<br />
*Richard M. Neustadt, ''Taming the Paperwork Tiger: An Experiment in Regulatory Management'', Regulation 28, Jan./Feb. 1981.<br />
*James T. O’Reilly, ''Who’s on First?: The Role of the Office of Management and Budget in Federal Information Policy'', 10 J. Legis. 95 (1983).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201988-10%20PERRITT%20Elec%20Acqu%20%2B%20Release%20of%20Info%201988%20ACUS%20601.pdf Electronic Acquisition and Release of Federal Agency Information] (Oct. 1, 1988) (report to ACUS).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201990-05%20PERRITT%20ELec%20Records%20Mgmt%20%2B%20Archives%201990%20ACUS%20389.pdf Federal Agency Electronic Records Management and Archives] (1990) (report to ACUS).<br />
*David Plocher, ''The Paperwork Reduction Act of 1995: A Second Chance for Information Resources Management (Reauthorization of the 1980 Act)'', Gov’t Info. Q. 271 (1997).<br />
*Robert Rosacher & Thomas Davies, ''An Analysis of Federal Income Tax Complexity Utilizing Internal Revenue Service Estimates for Taxpayer Paperwork Burden'', 45 Oil & Gas Tax Q. 791 (1997).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/Draft-PRA-Report-2-15-12.pdf The Paperwork Reduction Act: Benefits, Costs and Directions for Reform, Government Information Quarterly] (Feb. 15, 2012) (report to ACUS).<br />
*Stuart Shapiro, [https://www.acus.gov/sites/default/files/documents/paperwork-reduction-act-efficiencies-final-report.pdf Paperwork Reduction Act Efficiencies] (May 14, 2018) (report to ACUS)<br />
*Stuart Shapiro & Deanna Moran, [http://www.nyujlpp.org/wp-content/uploads/2016/05/Shapiro-Moran-Regulatory-Reform-Since-the-APA-19nyujlpp141.pdf The Checkered History of Regulatory Reform Since the APA], 19 N.Y.U. J. Legis. & Pub. Pol’y 141 (2016).<br />
</div><br />
<br />
===Agency Regulations===<br />
Office of Management and Budget ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9c7267808cc04a73fb3d3f41b1180d02&mc=true&node=pt5.3.1320&rgn=div5 5 C.F.R. Part 1320])<br />
<br />
==Statutory Provisions==<br />
Paperwork Reduction Act<br />
<br />
Title 44 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter1&edition=prelim Chapter 35, Subchapter I—Federal Information Policy]<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim § 3501. Purposes]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3502&num=0&edition=prelim § 3502. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3503&num=0&edition=prelim § 3503. Office of Information and Regulatory Affairs]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim § 3504. Authority and functions of Director]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3505&num=0&edition=prelim § 3505. Assignment of tasks and deadlines]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3506&num=0&edition=prelim § 3506. Federal agency responsibilities]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3507&num=0&edition=prelim § 3507. Public information collection activities; submission to Director; approval and delegation]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3508&num=0&edition=prelim § 3508. Determination of necessity for information; hearing]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3509&num=0&edition=prelim § 3509. Designation of central collection agency]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3510&num=0&edition=prelim § 3510. Cooperation of agencies in making information available]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3511&num=0&edition=prelim § 3511. Establishment and operation of Government Information Locator Service]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3512&num=0&edition=prelim § 3512. Public protection]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3513&num=0&edition=prelim § 3513. Director review of agency activities; reporting; agency response]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3514&num=0&edition=prelim § 3514. Responsiveness to Congress]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3515&num=0&edition=prelim § 3515. Administrative powers]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim § 3516. Rules and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3517&num=0&edition=prelim § 3517. Consultation with other agencies and the public]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3518&num=0&edition=prelim § 3518. Effect on existing laws and regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3519&num=0&edition=prelim § 3519. Access to information]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3520&num=0&edition=prelim § 3520. Establishment of task force on information collection and dissemination]<br />
</div></div>MGluthhttps://sourcebook.acus.gov/index.php?title=Negotiated_Rulemaking_Act&diff=1668Negotiated Rulemaking Act2023-08-15T20:21:47Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter5/subchapter3&edition=prelim 561–570] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg4969.pdf Pub. L. No. 101-648], 104 Stat. 4969, Nov. 29, 1990, renumbered by [https://www.gpo.gov/fdsys/pkg/STATUTE-106/pdf/STATUTE-106-Pg944.pdf Pub. L. No. 102-354], 106 Stat. 944, Aug. 26, 1992; amended by [https://www.govinfo.gov/content/pkg/STATUTE-110/pdf/STATUTE-110-Pg3870.pdf Pub. L. No. 104-320], § 11, 110 Stat. 3870, Oct. 19, 1996. <br />
<br />
'''Lead Agency:''' <br />
<br />
The Negotiated Rulemaking Act originally named [https://www.acus.gov/ ACUS] as the lead agency for coordinating negotiated rulemaking, but ACUS was defunded by Congress in 1995. In 1996, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section569&num=0&edition=prelim Section 569] was amended to require the President to designate an agency or interagency committee to facilitate and encourage agency use of negotiated rulemaking. The President subsequently named the Regulatory Working Group, which had been established under Section 4(d) of Executive Order 12866, [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], as the lead agency. ''See'' [https://www.justice.gov/sites/default/files/olp/docs/1998.05.01CLINTON.pdf Memorandum on the Designation of Interagency Committees to Facilitate and Encourage Agency Use of Alternate Means of Dispute Resolution and Negotiated Rulemaking], 1 Pub. Papers 749 (May 1, 1998). However, it is not clear that the Regulatory Working Group has taken on any responsibilities in this area, despite its retention on paper and specific amendment in Executive Order 13258, [https://www.govinfo.gov/content/pkg/FR-2002-02-28/pdf/02-5069.pdf Amending Executive Order 12866 on Regulatory Planning and Review]. The reestablishment of ACUS in 2010 has yet to result in its redesignation as the agency responsible for facilitating and encouraging the use of negotiated rulemaking. Thus, there does not appear to be any real lead agency for the Negotiated Rulemaking Act. <br />
<br />
==Overview:==<br />
The Negotiated Rulemaking Act of 1990 establishes a statutory framework for agencies to formulate proposed regulations by using negotiated rulemaking. It supplements the rulemaking provisions of the [[Administrative Procedure Act]] (APA) by clarifying the authority of federal agencies to conduct negotiated rulemaking. It largely codifies the practice of those agencies that had previously used the procedure. While not requiring use of the technique, the Negotiated Rulemaking Act provides each agency discretion in determining whether to use negotiated rulemaking.<br />
<br />
Negotiated rulemaking (sometimes known as “regulatory negotiation” or “reg-neg”) emerged in the 1980s as an alternative to traditional procedures for drafting proposed regulations. The essence of the idea was that in certain situations it is possible to bring together representatives of an agency and the various affected interest groups to negotiate the text of a proposed rule. The negotiators would try to reach consensus through a process of evaluating their own priorities and making tradeoffs to achieve an acceptable outcome on the issues of greatest importance to them. If they do achieve consensus, then the resulting rule is likely to be easier to implement, and the likelihood of subsequent litigation is diminished. Even absent consensus on a draft rule, the process may be valuable as a means of better informing the regulatory agency of the issues and the concerns of the affected interests.<br />
<br />
Negotiated rulemaking should be viewed as a supplement to the rulemaking provisions of the APA. This means that the negotiation sessions generally take place prior to issuance of the notice and the opportunity for the public to comment on a proposed rule that are required by the APA (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim § 553]). In some instances, negotiations may be appropriate at a later stage of the proceeding and have sometimes been used effectively in drafting the text of a final rule based on comments received.<br />
<br />
In 1982, ACUS set forth criteria for identifying rulemaking situations for which reg-neg is likely to be successful. Recommendation 82-4, [https://www.acus.gov/sites/default/files/documents/82-4.pdf Procedures for Negotiating Proposed Regulations]. These criteria were intended to guide agencies in determining whether negotiated rulemaking would be appropriate for addressing particular regulatory problems. ACUS also suggested specific procedures for agencies to follow in applying this approach. Additional refinements, based on a study of initial agency experiences with reg-neg, were recommended in 1985. Recommendation 85-5, [https://www.acus.gov/sites/default/files/documents/85-5.pdf Procedures for Negotiating Proposed Regulations].<br />
<br />
Much of the Negotiated Rulemaking Act is permissive, incorporating many of the criteria and procedures suggested in the ACUS recommendations. The drafters intended that the legislation not impair any rights otherwise retained by agencies or parties, and [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section561&num=0&edition=prelim section 561] expressly provides that the Negotiated Rulemaking Act is not intended to limit innovation or experimentation with the negotiated rulemaking process. Although the Negotiated Rulemaking Act plainly permits an agency to publish as its own the consensus proposal adopted by the negotiating committee, nothing in the law requires the agency to publish either a proposed or final rule merely because a negotiating committee proposed it.<br />
<br />
Following the ACUS recommendations, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section563&num=0&edition=prelim section 563] lists several criteria for agencies to consider in determining whether to use negotiated rulemaking in any particular instance. It permits the use of outside impartial persons (referred to as “conveners”) to assist the agency in identifying potential participants in the negotiation process. If conveners are used, they must identify “residents of rural areas” that may be affected by a proposed rule. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section564&num=0&edition=prelim Section 564] requires public notice of planned negotiated rulemaking proceedings both in the ''Federal Register'' and in appropriate trade and specialized publications. Persons or interests believing that they are not adequately represented on the negotiating committee must be given an opportunity to apply for membership, though the agency retains discretion as to whether to grant such requests.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section565&num=0&edition=prelim Section 565] outlines the process for establishing negotiating committees and makes clear that they are also to comply with the [[Federal Advisory Committee Act]] (FACA). At least one member of the committee must be a representative of the agency. If, after considering the public responses to the published notice of intent to establish a negotiating committee under the Negotiated Rulemaking Act, the agency determines not to do so, then the agency must publish a notice of that fact and the reasons for its decision.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section566&num=0&edition=prelim Section 566] addresses the procedures of the negotiating committee and provides for selection of a neutral “facilitator” or mediator to assist the committee in its deliberations.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section567&num=0&edition=prelim Section 567] permits an agency to keep a negotiating committee in existence until promulgation of the final rule but allows earlier termination if the agency or the committee so chooses.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section568&num=0&edition=prelim Section 568] addresses options for acquiring the services of conveners and facilitators. Agencies are authorized to pay expenses of certain committee members in accordance with FACA.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section569&num=0&edition=prelim Section 569] refers agencies considering negotiated rulemaking to the agency or committee identified by the President to facilitate and encourage negotiated rulemaking. It also permits an agency to accept and utilize gifts in support of negotiated rulemaking, if the gift would not “create a conflict of interest.”<br />
<br />
To avoid creating new sources of potential litigation, [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section570&num=0&edition=prelim section 570] provides that agency actions relating to the establishment, assistance, or termination of a negotiated rulemaking committee are not subject to judicial review. However, the Negotiated Rulemaking Act does not affect the otherwise available judicial review of the rules promulgated through the negotiation process.<br />
<br />
Under section 5, as originally enacted by [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg4969.pdf Pub. L. No. 101-648], the provisions of the Negotiated Rulemaking Act were to be repealed six years after the date of enactment (Nov. 26, 1996). Section 11(a) of the [[Administrative Dispute Resolution Act]] of 1996 ([https://www.govinfo.gov/content/pkg/PLAW-104publ320/pdf/PLAW-104publ320.pdf Pub. L. No. 104-320]) repealed section 5 and permanently reauthorized the Negotiated Rulemaking Act.<br />
<br />
==Legislative History==<br />
The Senate’s Select Committee on Small Business and Committee on Governmental Affairs held joint hearings on “regulatory negotiation” in July 1980. Legislation was introduced in September 1980 “to create a pilot program to encourage . . . the formation of regulatory negotiation commissions, comprised of representatives of business, public interest organizations, labor, State and local officials, and other interested persons, for the purpose of making recommendations to Federal agencies on regulatory policy.” H.R. 8240. Other bills to establish a statutory framework for negotiated rulemaking were introduced in each subsequent Congress throughout the 1980s.<br />
<br />
'''100th Congress.''' The first negotiated rulemaking bill to be acted upon was S. 1504, introduced by Senator Carl Levin in the 100th Congress. The Senate Committee on Governmental Affairs held hearings on May 13, 1988, and the Senate passed the bill on September 30, 1988. S. Rep. No. 100-547 (1988). In the House, the Judiciary Subcommittee on Administrative Law and Governmental Relations held a hearing on August 10, 1988, on a companion bill, H.R. 3052, introduced by Representative Donald Pease. No further action was taken.<br />
<br />
'''101st Congress.''' In the 101st Congress, identical bills, S. 303 and H.R. 743, were introduced on January 31, 1989. The Senate Committee on Governmental Affairs reported out S. 303 on July 13, 1989, and the Senate passed it on August 3, 1989. S. Rep. No. 101-97 (1989).<br />
<br />
The House Subcommittee held a hearing on H.R. 743 on May 3, 1989, and on February 7, 1990, reported out the bill with amendments. The Committee on the Judiciary passed the bill on March 28, and the House passed it on May 1. H. Rep. No. 101-461 (1990). The Senate amended the bill further and passed S. 303 again on October 4. The House accepted the Senate amendments, voting final passage on October 22. President Bush signed the bill on November 29, 1990.<br />
<br />
During the period of congressional consideration of the Negotiated Rulemaking Act, Congress passed three other pieces of legislation that mandated use of negotiated rulemaking: the Carl D. Perkins Vocational and Applied Technology Education Act Amendments [https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg753.pdf (Pub. L. No. 101-392]), the Hawkins-Stafford Elementary and Secondary School Improvements Amendments ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg130.pdf Pub. L. No. 100-297]), and the Price-Anderson Amendments Act of 1988 ([https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg1066.pdf Pub. L. No. 100-408]). Each of these laws provided specific and widely differing procedures for negotiating rules.<br />
<br />
'''102d Congress.''' The Administrative Procedure Technical Amendments Act of 1991 ([https://www.govinfo.gov/content/pkg/STATUTE-106/pdf/STATUTE-106-Pg944.pdf Pub. L. No. 102-354]) was passed by the 102d Congress and signed into law on August 26, 1992. It recodified the existing Negotiated Rulemaking Act to a different subchapter to eliminate the duplication in section numbering with the [[Administrative Dispute Resolution Act]].<br />
<br />
'''104th Congress.''' On February 27, 1996, Representative George Gekas introduced [https://www.congress.gov/104/bills/hr2977/BILLS-104hr2977ih.pdf H.R. 2977], a predecessor for the measure that would eventually become [https://www.congress.gov/104/plaws/publ320/PLAW-104publ320.pdf Pub. L. 104-320]. H.R. 2977 was referred to the House Committee on the Judiciary and the Subcommittee on Commercial and Administrative Law for consideration. The Committee on the Judiciary reported up the measure, [https://www.congress.gov/104/crpt/hrpt597/CRPT-104hrpt597.pdf H. Rep. 104-597] (1996), and the House passed an amended resolution on June 4.<br />
<br />
In the Senate, [https://www.congress.gov/104/bills/s1224/BILLS-104s1224rs.pdf S.1224] was incorporated into H.R. 2977 as an amendment. A Conference report was filed in the House to consider the House’s objections to the amendments. [https://www.congress.gov/104/crpt/hrpt841/CRPT-104hrpt841.pdf H. Rep. 104-841] (1996). On September 27, the House considered and passed [https://www.congress.gov/104/bills/hr4194/BILLS-104hr4194eh.pdf H.R. 4194], substantially identical to H.R. 2977. The Senate considered and passed H.R. 4194 as amended three days later, and the House passed the amended resolution without objection. On October 19, 1996, President Clinton signed the bill into law.<br />
<br />
Congress has used the Negotiated Rulemaking Act as a common reference for application of reg-neg procedures to other legislation, including the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 1997 ([https://www.govinfo.gov/content/pkg/PLAW-104publ180/pdf/PLAW-104publ180.pdf Pub. L. No. 104-180]) and the Health Insurance Portability and Accountability Act ([https://www.govinfo.gov/content/pkg/PLAW-104publ191/pdf/PLAW-104publ191.pdf Pub. L. No. 104-191]).<br />
<br />
==Significant Case Law==<br />
EPA’s final rule on asbestos-containing materials in schools was the first reg-neg rule to be challenged in court. The suit was brought by the Safe Buildings Alliance, a group representing former manufacturers of asbestos building products that are now illegal. Plaintiffs in the lawsuit claimed that the rule would encourage unnecessary removal of materials from buildings and would result in a chaotic situation. They sought a more objective standard—based on air monitoring, for example—rather than the professional judgment called for under EPA’s rule. The Safe Buildings Alliance had been represented on the negotiating committee. Several other parties who were represented on the negotiating committee intervened in support of the final rule as published, including the National Education Association, the American Association of School Administrators, and a group of state attorneys general.<br />
<br />
In May 1988, U.S. Court of Appeals for the D.C. Circuit upheld the rule in ''Safe Buildings Alliance v. EPA'', 846 F.2d 79 (D.C. Cir. 1988). The court determined that EPA’s regulation embodied a reasonable interpretation of the requirements of the Asbestos Hazard Emergency Response Act of 1986 ([https://www.govinfo.gov/content/pkg/STATUTE-100/pdf/STATUTE-100-Pg2970.pdf Pub. L. No. 99-519]). Neither the appeal nor the court’s decision referred to the negotiation procedure that was followed. EPA’s underground injection rule, based in part on negotiated rulemaking, was also challenged and essentially upheld by the D.C. Circuit. ''Nat. Res. Def. Council v. EPA'', 907 F.2d 1146 (D.C. Cir. 1990).<br />
<br />
The Department of Education’s regulations pertaining to the liability of student loan servicers were the first reg-neg rules in which the court actually discussed the negotiated rulemaking process. ''USA Grp. Loan Servs., Inc. v. Riley'', 82 F.3d 708 (7th Cir. 1996). The court determined that any promises made by the agency during negotiations regarding the outcome of the final rule were unenforceable under the Negotiated Rulemaking Act. Furthermore, the reg-neg procedures were viewed as merely a consultative process because an agency is not bound by the consensus of the negotiations in determining the final rule. This case is notable, however, because it referred to negotiated rulemaking as “a novelty in the administrative process,” and because the court’s discussion seemed critical of this new process, even as it upheld the legality of what was done. This decision has been criticized as narrow and erroneous. ''See'' Philip J. Harter, ''First Judicial Review of Reg-Neg a Disappointment'', Admin. & Reg. L. News, Fall 1996.<br />
<br />
While [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section570&num=0&edition=prelim Section 570] states that agency actions establishing negotiated rulemaking committees are not subject to judicial review, it also says that nothing in the section bars review of a rule otherwise subject to review. In ''Center for Law and Education v. U.S. Department of Education'', 315 F. Supp. 2d 15 (D.D.C. 2004), ''aff’d on other grounds'', 396 F.3d 1152 (D.C. Cir. 2005), the court held that this section precluded a challenge to a rule in which the plaintiff claimed that the composition of the rulemaking committee violated the requirements of FACA. The court of appeals affirmed the judgment of dismissal on the grounds that the plaintiffs lacked standing and did not reach the Section 570 question. Judge Edwards, however, wrote separately in a concurrence to state that, while he agreed that the plaintiffs lacked standing, he believed that Section 570 did not bar their challenge. He believed that the savings portion of the section allowed, pursuant to the [[Administrative Procedure Act|APA]], judicial review of a claim that the agency violated [[Federal Advisory Committee Act|FACA]] in its establishment of the rulemaking committee.<br />
<br />
The courts have uniformly refused to review rules adopted through negotiated rulemaking in any different way from rules adopted with traditional notice and comment. ''See, e.g.'', [https://www.ca10.uscourts.gov/sites/ca10/files/opinions/01018370586.pdf Fort Peck Hous. Auth. v. HUD], 367 F. App’x 884, 892 n.14 (10th Cir. 2010) (explaining that no special deference is to be afforded to rules adopted through negotiated rulemaking); [https://www.cadc.uscourts.gov/internet/opinions.nsf/881E82D9C78DDBB2852574400046ECBE/$file/06-1068b.pdf City of Portland v. EPA], 507 F.3d 706, 715 (D.C. Cir. 2007) (holding that the adequacy of the notice of proposed rulemaking to be judged according to normal standards notwithstanding that it was the product of a regulatory negotiation).<br />
<br />
===Source Note===<br />
<br />
In 1995, ACUS published a second edition of its [https://www.acus.gov/sites/default/files/documents/Reg%20Neg%20Sourcebook%20Chap%201_0.pdf Negotiated Rulemaking Sourcebook], a step-by-step guide to the conduct of negotiated rulemaking proceedings. The volume contains a discussion of when and how to use the procedure, along with sample notices and other documents that may be needed by an agency using the process. Numerous articles, both analytical and practical, are reprinted in the ''Sourcebook'', including the Harter and Perritt reports to ACUS that furnished the research background for Conference Recommendations 82-4, [https://www.acus.gov/sites/default/files/documents/82-4.pdf Procedures for Negotiating Proposed Regulations], and 85-5, [https://www.acus.gov/sites/default/files/documents/85-5.pdf Procedures for Negotiating Proposed Regulations].<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Regulatory Negotiation'', J. Hearings Before the S. Select Comm. on Small Bus. and the Subcomm. on Oversight of Gov’t Mgmt. of the S. Comm. on Gov’tal Affairs, 96th Cong. (1980).<br />
*''Negotiated Rulemaking Act of 1987 (H.R. 3052)'', Hearing Before the Subcomm. on Admin. Law and Gov’tal Relations of the H. Comm. on the Judiciary, 100th Cong. (1988).<br />
*Negotiated Rulemaking Act of 1988, S. Rep. No. 100-547 (1988).<br />
*Negotiated Rulemaking Act of 1990, S. Rep. No. 101-97 (1989).<br />
*''Negotiated Rulemaking Act of 1989 (H.R. 743)'', Hearing Before the Subcomm. on Admin. Law and Gov’tal Relations of the H. Comm. on the Judiciary, 101st Cong. (1989).<br />
*''President’s Statement on Signing the Negotiated Rulemaking Act of 1990'', 26 Weekly Comp. Press Doc. 1,945 (Nov. 29, 1990).<br />
*Negotiated Rulemaking Act of 1990, H.R. Rep. No. 101-461 (1990).<br />
*Conference Report to Accompany H.R. 2977, Administrative Dispute Resolution Act of 1996, [https://www.congress.gov/104/crpt/hrpt841/CRPT-104hrpt841.pdf H. Rep. No. 104-841] (1996).<br />
*Administrative Dispute Resolution Act of 1996, [https://www.congress.gov/104/crpt/hrpt597/CRPT-104hrpt597.pdf H.R. Rep. No. 104-597] (1996).<br />
*''Interstate Compacts; Reauthorization of the Negotiated Rulemaking Act'', Hearings Before the Subcomm on Commercial and Admin. Law of the H. Comm. on the Judiciary, 104th Cong. (1996).<br />
</div><br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*Executive Order 12866, § 4(d), [https://www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf Regulatory Planning and Review], 58 Fed. Reg. 51735 (Oct. 4, 1993).<br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*82-4 [https://www.acus.gov/sites/default/files/documents/82-4.pdf Procedures for Negotiating Proposed Regulations]<br />
*85-5 [https://www.acus.gov/sites/default/files/documents/85-5.pdf Procedures for Negotiating Proposed Regulations]<br />
*86-8 [https://www.acus.gov/sites/default/files/documents/86-8.pdf Acquiring the Services of “Neutrals” for Alternative Means of Dispute Resolution]<br />
*2017-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-2_Negotiated%20Rulemaking.pdf Negotiated Rulemaking and Other Options for Public Engagement]<br />
</div><br />
<br />
===Other Government Documents===<br />
<br />
*David M. Pritzker & Deborah S. Dalton, [https://www.acus.gov/sites/default/files/documents/Reg%20Neg%20Sourcebook%20Chap%201_0.pdf Negotiated Rulemaking Sourcebook] (ACUS Office of the Chairman, 1995).<br />
*Henry H. Perritt, Jr., ''Use of Negotiated Rulemaking to Develop a Proposed OSHA Health Standard for MDA'' (report prepared for the Deputy Assistant Secretary of Labor, 1988).<br />
<br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Cheryl Blake & Reeve T. Bull, [https://www.acus.gov/sites/default/files/documents/Negotiated%20Rulemaking_Final%20Report_June%205%202017.pdf Negotiated Rulemaking] (June 5, 2017) (report to ACUS).<br />
*Marie Boyd, ''[https://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=2048&context=law_facpub Unequal Protection Under the Law: Why FDA Should Use Negotiated Rulemaking to Reform the Regulation of Generic Drugs]'', 35 Cardozo L. Rev. 1525 (2014).<br />
*Cary Coglianese, ''Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter'', 9 N.Y.U. Env't. L.J. 386 (2001).<br />
*Cary Coglianese, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1005&context=dlj Assessing Consensus: The Promise and Performance of Negotiated Rulemaking], 46 Duke L.J. 1255 (1997).<br />
*Curtis Copeland, Chapter 6 “Negotiated Rulemaking” in ''Federal Rulemaking and Regulations'' (Paul Lee, ed., Nova Sci. Publishers, 2010).<br />
*Gary R. Dillinger, ''Guidelines for Negotiated Rulemaking'', 25 Colo. Law 21 (1996).<br />
*Dennis H. Esposito & Kristen W. Ulbrich, ''Negotiated Rulemaking in Environmental Law'', 46 R.I. Bar J. 5 (1998).<br />
*''Federal Administrative Dispute Resolution Deskbook'' (Marshal J. Breger, ed., ABA Press, 2001).<br />
*Jody Freeman, ''Collaborative Governance in the Administrative State'', 45 U.C.L.A. L. Rev. 1 (1997).<br />
*William Funk, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1006&context=dlj Bargaining Toward the New Millennium: Regulatory Negotiation and the Subversion of the Public Interest], 46 Duke L.J. 1351 (1997).<br />
*Philip J. Harter, [https://www.acus.gov/sites/default/files/documents/J1%201982-04%20HARTER%20RegNeg%20Cure%20for%20Malaise%201982%20ACUS%20301.pdf Negotiating Regulations: A Cure for Malaise] (1982) (report to ACUS).<br />
*Philip J. Harter, ''First Judicial Review of Reg Neg a Disappointment'', Admin. & Reg. L. News, Fall 1996, at 1.<br />
*Philip J. Harter, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1007&context=dlj Fear of Commitment: An Affliction of Adolescents], 46 Duke L.J. 1389 (1997).<br />
*Philip J. Harter, ''Assessing the Assessors: The Actual Performance of Negotiated Rulemaking'', 9 N.Y.U. Env't. L.J. 32 (2000).<br />
*Philip J. Harter, [https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1345&context=nlj A Plumber Responds to the Philosophers: A Comment on Professor Menkel-Meadow’s Essay on Deliberative Democracy], 5 Nev. L.J. 379 (2005).<br />
*Danielle Holley-Walker, [http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1133&context=nlr The Importance of Negotiated Rulemaking to the No Child Left Behind Act], 85 Neb. L. Rev. 1015 (2007).<br />
*Julia Kobick, ''Negotiated Rulemaking: The Next Step in Regulatory Innovation at the Food and Drug Administration?'', 65 Food & Drug L.J. 425 (2010).<br />
*Michelle M. Kwon, ''Easing Regulatory Bottlenecks with Collaborative Rulemaking'', 69 Admin. L. Rev. 585 (2017).<br />
*Jeffrey Lubbers, ''Achieving Policymaking Consensus: The (Unfortunate) Waning of Negotiated Rulemaking'', 49 S. Tex. L. Rev. 987 (2008).<br />
*Jeffrey S. Lubbers, ''Enhancing the Use of Negotiated Rulemaking by the U.S. Department of Education'' (2014), white paper for the American Council on Education, published as Appendix IV, [https://www.help.senate.gov/imo/media/Regulations_Task_Force_Report_2015_FINAL.pdf Recalibrating Regulation of Colleges and Universities, Report of the Task Force On Federal Regulation of Higher Education] 90–125 (2015).<br />
*Robin McCall, [https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1114&context=hastings_environmental_law_journal Dogs v. Birds: Negotiated Rulemaking at Fort Funston], 13 Hastings W.-N.W. J. Env't. L. & Pol’y 187 (2007).<br />
*Henry H. Perritt, Jr., ''Negotiated Rulemaking Before Federal Agencies: Evaluation of Recommendations by the Administrative Conference of the United States'', 74 Geo. L.J. 1625 (1986).<br />
*Michael Sant’Ambrogio & Glen Staszewski, [https://www.acus.gov/sites/default/files/documents/Public%20Engagement%20in%20Rulemaking%20Final%20Report.pdf Public Engagement with Agency Rulemaking] (Nov. 19, 2018) (report to ACUS).<br />
*Peter H. Schuck & Steven Kochevar, ''Reg Neg Redux: The Career of a Procedural Reform'', 15 Theoretical Inq. L. 417 (2014).<br />
*Daniel P. Selmi, ''The Promise and Limits of Negotiated Rulemaking: Evaluating the Negotiation of a Regional Air Quality Rule'', 35 Env't. L. 415 (2005).<br />
*Ellen Siegler, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1008&context=dlj Regulatory Negotiation and Other Rulemaking Processes: Strengths and Weaknesses from an Industry Viewpoint], 46 Duke L.J. 1429 (1997).<br />
*Ehren K. Wade, Comment, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/5-Wade.pdf Just What the Doctor Ordered: Health Care Reform, the IRS, and Negotiated Rulemaking], 66 Admin. L. Rev. 199 (2014).<br />
*Patricia M. Wald, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1009&context=dlj ADR and the Courts: An Update], 46 Duke L.J. 1445 (1997).<br />
*Hannah J. Wiseman, [https://wfulawpolicyjournaldotcom.files.wordpress.com/2016/05/wiseman_negotiated_rulemaking_new_risks.pdf Negotiated Rulemaking and New Risks: A Rail Safety Case Study], 7 Wake Forest J.L. & Pol’y 207 (2017).<br />
</div><br />
<br />
==Statutory Provisions==<br />
Negotiated Rulemaking Act <br />
<br />
Title 5 U.S. Code<br />
<br />
*[http://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter5/subchapter3&edition=prelim Chapter 5, Subchapter III—Negotiated Rulemaking Procedure]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section561&num=0&edition=prelim § 561. Purpose]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section562&num=0&edition=prelim § 562. Definitions]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section563&num=0&edition=prelim § 563. Determination of need for negotiated rulemaking committee]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section564&num=0&edition=prelim § 564. Publication of notice; applications for membership on committees]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section565&num=0&edition=prelim § 565. Establishment of committee]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section566&num=0&edition=prelim § 566. Conduct of committee activity]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section567&num=0&edition=prelim § 567. Termination of committee]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section568&num=0&edition=prelim § 568. Services, facilities, and payment of committee member expenses]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section569&num=0&edition=prelim § 569. Encouraging negotiated rulemaking]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section570&num=0&edition=prelim § 570. Judicial review]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=National_Environmental_Policy_Act&diff=1667National Environmental Policy Act2023-08-15T20:16:32Z<p>MGluth: </p>
<hr />
<div>[https://www.fsa.usda.gov/Internet/FSA_File/nepa_statute.pdf 42 U.S.C. §§ 4321–4347] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-83/pdf/STATUTE-83-Pg852.pdf Pub. L. No. 91-190], 83 Stat. 852, Jan. 1, 1970. Amended by [http://uscode.house.gov/statutes/pl/94/52.pdf Pub. L. No. 94-52], § 2, 89 Stat. 258, July 3, 1975; by [http://uscode.house.gov/statutes/pl/94/83.pdf Pub. L. No. 94-83], 89 Stat. 424, Aug. 9, 1975; by [https://www.govinfo.gov/content/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf Pub. L. No. 112-141], Div. A, Title I, Subtitle C, § 1319, 126 Stat. 551, July 6, 2012.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/ceq/ Council on Environmental Quality]<br />
<br />
[https://ceq.doe.gov/ NEPA.gov] <br />
<br />
==Overview==<br />
<br />
The National Environmental Policy Act (NEPA) was the first federal statute to use the “impact statement” approach in federal regulation. Its purpose is to require federal agencies to analyze and consider the environmental impact of their actions in an open and public process. NEPA also created the Council on Environmental Quality (CEQ) within the Executive Office of the President.<br />
<br />
===Environmental Impact Statements=== <br />
<br />
The core of NEPA is found in section 102(2)(C) (codified at 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4332&num=0&edition=prelim § 4332(2)(C)]), which creates the environmental impact statement (EIS) requirement. The provision requires that: <blockquote>all agencies of the Federal Government . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.</blockquote>The provision requires the responsible federal official to consult with and seek comments from other affected agencies. Copies of the statements and relevant comments must be made public and must accompany the proposal through the agency review process.<br />
<br />
Despite language in NEPA that might be construed otherwise, the Supreme Court has held that NEPA does not impose any substantive requirement on agencies to favor the environment in the agency’s decisionmaking. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep444/usrep444223/usrep444223.pdf Strycker’s Bay Neighborhood Council, Inc. v. Karlen], 444 U.S. 223 (1980). Notwithstanding the lack of substantive requirements, NEPA has been the source of an extremely large number of challenges to agency action, arguing either that the agency failed to prepare an EIS when NEPA required it or that the EIS that the agency prepared was inadequate. Even after 45 years, agencies frequently lose these suits, with the result that the agency action is enjoined until the agency fully complies with NEPA’s procedural requirements.<br />
<br />
===Council on Environmental Quality Role===<br />
<br />
The CEQ, created by title 11 of NEPA, is the legal overseer of NEPA and was active in shaping NEPA law in its early years. Until 2000, it prepared extensive annual environmental quality reports pursuant to 42 U.S.C. § 4341, which was effectively repealed in that year. CEQ took the lead in developing appropriate procedures for EIS preparation. In Executive Order 11514, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO11514envtlquality.pdf Protection and Enhancement of Environmental Quality], issued shortly after NEPA’s passage, President Nixon gave CEQ the authority to issue guidelines to agencies for the preparation of EISs. The CEQ’s original guidelines were nonbinding but were relied upon by most federal agencies when promulgating their own procedures. [https://www.govinfo.gov/content/pkg/FR-1971-04-23/pdf/FR-1971-04-23.pdf#page=82 Statements on Proposed Federal Actions Affecting the Environment], 36 Fed. Reg. 7724 (Apr. 23, 1971). In 1977, President Carter significantly expanded CEQ’s authority by giving it the power to issue binding regulations in Executive Order 11991, ''Relating to Protection and Enhancement of Environmental Quality'', (May 24, 1977). These regulations are codified at [https://www.ecfr.gov/cgi-bin/text-idx?SID=c38c7cc340821485cfc86a6bed118949&mc=true&tpl=/ecfrbrowse/Title40/40chapterV.tpl 40 C.F.R Parts 1500–1508]. ''See'' Implementation of Procedural Provisions, 43 Fed. Reg. 55978 (Nov. 28, 1978). The Supreme Court has since treated these regulations as deserving substantial deference. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep442/usrep442347/usrep442347.pdf Andrus v. Sierra Club], 442 U.S. 347 (1979).<br />
<br />
The CEQ regulations cover many of the procedural issues that have emerged in the extensive litigation over the meaning of NEPA’s terms. The regulations, all in Title 40 of the Code of Federal Regulations, provide comprehensive guidance on what constitutes a “major federal action” requiring an EIS, the preparation of draft, supplemental and final statements, page limits, recommended format and content ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1502&rgn=div5 Part 1502]); the comment process ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1503&rgn=div5 Part 1503]); predecision referral of interagency disputes to CEQ ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1504&rgn=div5 Part 1504]); integration with agency decisionmaking ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1505&rgn=div5 Part 1505]); elimination of duplication with state and local requirements and procedures for filing with EPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1506&rgn=div5 Part 1506]); and agency compliance ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1507&rgn=div5 Part 1507]).<br />
<br />
In addition to the regulations, CEQ also provided continuing guidance to agencies on implementation of NEPA. For example, in 1981 it published the [https://www.energy.gov/nepa/articles/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act Memorandum to Agencies Containing Answers to 40 Most Asked Questions on NEPA Regulations]. In April 1981, it issued a [https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping] on the subject of “scoping guidance.” In 1983, after a solicitation of comments on the existing regulations and a two-year review process, CEQ published a supplemental memorandum giving further guidance to agencies. In 1993, it issued a guidance memorandum on the subject of pollution prevention and NEPA. In 1997, it issued two guidance memoranda, one on cumulative effects analysis under NEPA and the other on considering environmental justice under NEPA. In 2002, CEQ established a NEPA Task Force to undertake a thorough review of NEPA implementation. The Task Force’s report, [https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf Modernizing NEPA Implementation], was issued a year later. It contained recommendations designed to modernize the implementation of NEPA and make the NEPA process more effective and efficient.<br />
<br />
More recently, CEQ has provided guidance on the use of categorical exclusions (in which agencies may exempt certain actions from NEPA review) and on the use of mitigating measures to avoid a finding of significant impact on the environment. In addition, CEQ has issued guidance to assist agencies in analyzing greenhouse gas emissions and climate change effects of their proposed actions under NEPA. Most recently, CEQ issued interim guidance in January 2023 stating that agencies should consider (1) the potential effects of a proposed action on climate change, including by assessing both greenhouse gas emissions and reductions from the proposed action, and (2) the effects of climate change on a proposed action and its environmental impacts. <br />
<br />
The CEQ also compiles [https://ceq.doe.gov/get-involved/eis_filings.html annual data on the number of environmental impact statements] filed by agencies and the trends in NEPA litigation.<br />
<br />
Originally, under 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4342&num=0&edition=prelim § 4342], CEQ consisted of three members appointed by the President with the advice and consent of the Senate, one of whom the President designated as chairman. However, beginning in 1997, Congress inserted a provision in annual appropriations acts stating that, notwithstanding this section of NEPA, the CEQ would consist of one member appointed by the President with the advice and consent of the Senate, who should serve as chairman.<br />
<br />
==Legislative History==<br />
<br />
Senators Henry M. Jackson and Ted Stevens introduced S. 1075, the original NEPA legislation, on February 18, 1969. It authorized the Secretary of the Interior to conduct a research program on environmental problems and created the Council on Environmental Quality. A hearing was held April 16, 1969 during which witnesses (primarily Lynton Caldwell, professor of political science at Indiana University) urged the creation of an “action-forcing” mechanism, which later became the environmental impact statement. S. 1075 was reported with amendments and an accompanying report of the Senate Committee on Interior and Insular Affairs on July 9, 1969. The following day the bill passed the Senate unanimously.<br />
<br />
A House of Representatives’ subcommittee of the Committee on Merchant Marine and Fisheries held a series of hearings during May and June 1969 on various related bills. On July 1, 1969, Representative John Dingell and others introduced H.R. 12549, which became the leading House bill. It, however, lacked the impact statement requirement. On July 11, 1969, the full Committee reported H.R. 12549. A supplemental report was filed on July 19. On September 23, 1969, the House passed the Senate bill, but only after substituting the text of the House bill in place of the Senate’s language. It then requested a conference.<br />
<br />
On October 8, 1969, after listening to Senator Jackson address the differences between the two versions, the Senate voted to insist on its version and appointed conferees. On December 17, 1969, the conference committee reported out a substitute version of S. 1075. This compromise version accepted the Senate’s environmental impact statement requirement, adding the language “to the fullest extent possible.” That same day, the Senate approved the Conference Report. The House followed suit on December 23. The bill became [https://www.govinfo.gov/content/pkg/STATUTE-83/pdf/STATUTE-83-Pg852.pdf Pub. L. No. 91-190] on January 1, 1970.<br />
<br />
Section 201 of NEPA, 42 U.S.C. § 4341, which required the President to transmit an annual report to Congress relating to the environment, was eliminated by the Federal Reports Elimination and Sunset Act of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ66/pdf/PLAW-104publ66.pdf Pub. L. No. 104-66]).<br />
<br />
Section 202 of NEPA, 42 U.S.C. § 4342, was effectively amended, although its language was not changed, by a series of annual riders to appropriation acts beginning in 1997 and culminating in a permanent rider to an appropriation act in 2005 that states: “That notwithstanding section 202 of the National Environmental Policy Act of 1970, the Council shall consist of one member, appointed by the President, by and with the advice and consent of the Senate, serving as chairman and exercising all powers, functions, and duties of the Council.” ''See'' ([https://www.congress.gov/109/plaws/publ54/PLAW-109publ54.pdf Pub. L. No. 109-54], Title III). This was apparently the consequence of President Clinton’s failure (or refusal) to appoint more than one member of the Council. ''See'' [https://www.congress.gov/104/crpt/hrpt628/CRPT-104hrpt628.pdf H.R. Rep. No. 104-628] (1996).<br />
<br />
Section 4332a of Title 42 was added to NEPA by Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) ([https://www.govinfo.gov/content/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf Pub. L. No. 112-141]), a massive reauthorization of the federal highway program. Although contained in the federal highway authorization act in order to expedite environmental planning for new and expanded highways, the new provision applies generally to environmental planning.<br />
<br />
The Fiscal Responsibility Act of 2023 (FRA) contained multiple amendments to NEPA. ''See'' H.R. 3746, Title III, Sec. 321 (2023). These amendments included, among other things, procedures for the appointment of a lead agency where multiple agencies are involved in the environmental review, page limits and deadlines for environmental documents, and rules governing the agency's adoption of categorial exclusions of another agency. In addition, the FRA directed CEQ to conduct a study and submit a report to Congress within one year of enactment of the FRA on the potential for online and digital technologies to address delays in reviews and improve public accessibility and transparency of NEPA reviews.<br />
<br />
===Source Note===<br />
<br />
There is an extensive literature of commentary, criticism, and analysis of NEPA and its implementation. Of course, the most authoritative pronouncements emanate from the [https://ceq.doe.gov/ Council on Environmental Quality]<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://ceq.doe.gov/docs/laws-regulations/Congress-White-Paper.pdf Congressional White Paper on a National Policy for the Environment] submitted to the United States Congress under the Auspices of the S. Comm. on Interior and Insular Affairs and the H. Comm. on Science and Astronautics, 90th Cong. (1968).<br />
*''Joint House-Senate Colloquium to Discuss a National Policy for the Environment'', Hearing Before the S. Comm. on Science and Astronautics, 90th Cong. (1968).<br />
*''Report of Managing the Environment'', Staff of Subcomm. on Science, Research, and Dev. of the H. Comm. on Science and Astronautics, 90th Cong. (1968).<br />
*Conference Report on S. 1075, H.R. Rep. No. 91-765 (1969).<br />
*Report to Accompany S. 1075, S. Rep. No. 91-296 (1969).<br />
*Report to Accompany H.R. 12549, [https://coast.noaa.gov/data/Documents/OceanLawSearch/House%20Report%20No.%2091-378%20Part%201.pdf H.R. Rep. No. 91-378] (1969).<br />
*''Hearings on the Administration of the National Environmental Policy Act'', Before the Subcomm. on Fisheries and Wildlife Conservation of the H. Comm. on Merchant Marine and Fisheries, 91st Cong. (1971) (2 parts).<br />
*''Hearings on National Environmental Policy Act Oversight'', Before the Subcomm. on Fisheries and Wildlife Conservation and the Env’t of the H. Comm. on Merchant Marine and Fisheries, 94th Cong. (1976).<br />
*Staff of Senate Comm. on Interior and Insular Affairs, ''Council on Environmental Quality: Oversight Report'', 94th Cong., 2d Sess. (1976).<br />
*''Hearings on CEQ Implementation of the National Environmental Policy Act'', Before the Subcomm. on Fisheries and Wildlife Conservation and the Env’t, H. Comm. on Merchant Marine and Fisheries, 95th Cong. (1978).<br />
*''Hearings on Implementation of the National Environmental Policy Act by the Council on Environmental Quality'', Before the Subcomm. on Toxic Substances and Envtl. Oversight of the S. Comm. on Env’t and Public Works, 97th Cong. (1982).<br />
*''Hearings on Compliance with the National Environmental Policy Act of 1969'', Before the Subcomm. on Hazardous Wastes and Toxic Substances of the S. Comm. on Environmental and Public Works, 100th Cong. (1987-1988).<br />
*''Hearing on the Application of the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations of the S. Comm. on Energy and Natural Resources, 104th Cong. (1995).<br />
*''Hearing on the Efforts by the Federal Land Management Agencies to Strengthen the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations, S. Comm. on Energy and Natural Resources, 104th Cong. (1996).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-105hhrg47866/pdf/CHRG-105hhrg47866.pdf Problems and Issues with the National Environmental Policy Act of 1969], Oversight Hearing Before the H. Comm. on Resources Before the H. Comm. on Res., 105th Cong. (1998).<br />
*MAP-21 Conference Report to Accompany H.R. 4348, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt557/pdf/CRPT-112hrpt557.pdf H.R. Rep. No. 112-557] (2012).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg73228/pdf/CHRG-112hhrg73228.pdf The Council on Environmental Quality’s FY 2013 Funding Request and the Effects on NEPA, National Ocean Policy and Other Federal Environmental Policy Initiatives], Hearing Before the H. Comm. on Nat. Res., 112th Cong. (2012).<br />
*''[https://www.govinfo.gov/content/pkg/CHRG-113hhrg80524/pdf/CHRG-113hhrg80524.pdf Hearing on H.R. 250, H.R. 382, H.R. 432, H.R. 758, H.R. 1512, H.R. 1434, H.R. 1439, H.R. 1459, and H.R. 885]'', Hearing Before the Subcomm. on Pub. Lands and Envtl. Regulation of the H. Comm. on Nat. Res., 113th Cong. (2013).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82951/pdf/CHRG-113hhrg82951.pdf The Department of the Interior’s Proposal to Use a Categorical Exclusion Under the National Environmental Policy Act (NEPA) for Adding Species to the Lacey Act’s List of Injurious Wildlife], Hearing Before the Subcomm. on Fisheries, Wildlife, Oceans and Insular Affairs of the H. Comm. on Nat. Res., 113th Cong. (2013).<br />
*[https://www.govinfo.gov/content/pkg/CRPT-113hrpt385/pdf/CRPT-113hrpt385.pdf H.R. Rep. No. 113-385] (2014).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg27722/pdf/CHRG-115hhrg27722.pdf Modernizing NEPA for the 21st Century], Hearing Before the H. Comm. on Nat. Res., 115th Cong. (2017) ([https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=403418 video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg29883/pdf/CHRG-115hhrg29883.pdf The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare], Hearing Before the H. Comm. on Nat. Res., 115th Cong. (2018) ([https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=404527 video]).<br />
*[https://www.congress.gov/bill/118th-congress/house-bill/3746 Fiscal Responsibility Act of 2023], H.R. 3746, Title III, Sec. 321 (2023).<br />
</div><br />
<br />
===Executive Orders and OMB/OIRA Documents===<br />
<br />
*Executive Order 11514, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO11514envtlquality.pdf Protection and Enhancement of Environmental Quality], 35 Fed. Reg. 4247 (Mar. 5, 1970).<br />
*Executive Order 11991, ''Relating to Protection and Enhancement of Environmental Quality'', 42 Fed. Reg. 26967 (May 24, 1977).<br />
*Executive Order 12852, [https://www.govinfo.gov/content/pkg/WCPD-1993-07-05/pdf/WCPD-1993-07-05-Pg1201.pdf President’s Council on Sustainable Development], 58 Fed. Reg. 39107 (July 19, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations], 60 Fed. Reg. 6381 (Feb. 11, 1994).<br />
*Executive Order 13514, [https://www.govinfo.gov/content/pkg/DCPD-200900783/pdf/DCPD-200900783.pdf Federal Leadership in Environmental, Energy, and Economic Performance], 74 Fed. Reg. 52117 (Oct. 8, 2009).<br />
*Executive Order 13807, [https://www.govinfo.gov/content/pkg/FR-2017-08-24/pdf/2017-18134.pdf Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects], 82 Fed. Reg. 40463 (Aug. 15, 2017).<br />
*M-18-13, [https://www.whitehouse.gov/wp-content/uploads/2018/04/M-18-13.pdf One Federal Decision Framework for the Environmental Review and Authorization Process for Major Infrastructure Projects Under Executive Order 13807] (Mar. 20, 2018).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2.pdf Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807] (Apr. 9, 2018).<br />
*M-21-23, [https://www.whitehouse.gov/wp-content/uploads/2021/04/M-21-23.pdf Revocation of OMB Memorandum M-21-01, "Budget and Management Guidance on Updates to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act"] (April 26, 2021).<br />
<br />
===ACUS Recommendations===<br />
<br />
*73-6, [https://www.acus.gov/sites/default/files/documents/73-6-ss.pdf Procedures for Resolution of Environmental Issues in Licensing Proceedings]<br />
*84-1, [https://www.acus.gov/sites/default/files/documents/84-1_0.pdf Public Regulation of Siting of Industrial Development Projects]<br />
*85-2, [https://www.acus.gov/sites/default/files/documents/85-2.pdf Agency Procedures for Performing Regulatory Analysis of Rules]<br />
<br />
===Council on Environmental Quality Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://ceq.doe.gov/ceq-reports/annual_environmental_quality_reports.html Environmental Quality Annual Reports, 1970-1997].<br />
*''Environmental Impact Statements: An Analysis of Six Years’ Experience by Seventy Federal Agencies'' (1976).<br />
*[https://www.energy.gov/nepa/articles/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act Memorandum to Agencies: Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations] (Mar. 23, 1981)<br />
*[https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping] (Apr. 30, 1981).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-GuidanceRegulations.pdf Guidance Regarding NEPA Regulations], 48 Fed. Reg. 34263–68 (July 28, 1983).<br />
<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PollutionPreventionNEPA.pdf Memorandum to Heads of Departments and Agencies Regarding Pollution Prevention and the National Environmental Policy Act], 58 Fed. Reg. 6478–81 (Jan. 29, 1993).<br />
*[https://ceq.doe.gov/docs/ceq-publications/Incorporating_Biodiversity_1993.pdf Incorporating Biodiversity Considerations into Environmental Impact Analysis Under the National Environmental Policy Act] (1993).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-ConsidCumulEffects.pdf Considering Cumulative Effects Under the National Environmental Policy Act] (1997).<br />
*[https://www.energy.gov/sites/prod/files/2014/08/f18/CEQTransboundaryGuidance_07_01_97.pdf Guidance on NEPA Analyses for Transboundary Impacts] (1997).<br />
*[https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (1997).<br />
*[https://www.energy.gov/sites/prod/files/G-CEQ-DesigNonfedCoopAgencies.pdf Memorandum for Heads of Federal Agencies: Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA] (July 28, 1999).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CoopAgenciesImplem.pdf Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (Jan. 30, 2002).<br />
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/connaughton.pdf Memorandum to Heads of Federal Agencies: Reporting Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (Dec. 23, 2004).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf Guidance on the Consideration of Past Actions in Cumulative Effects Analysis] (June 24, 2005).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-EmergencyGuidance.pdf Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA] (Sept. 8, 2005).<br />
*[https://www.energy.gov/sites/prod/files/2014/04/f15/OMB%20CEQ%20Joint%20Statement_1.pdf Memorandum on Environmental Conflict Resolution] (Nov. 28, 2005).<br />
*[https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf Aligning National Environmental Policy Act Process with Environmental Management Systems] (2007).<br />
*[https://www.energy.gov/sites/prod/files/CEQ_Collaboration_in_NEPA_10-2007.pdf Collaboration in NEPA: A Handbook for NEPA Practitioners] (2007).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CitizensGuide.pdf A Citizen’s Guide to the NEPA: Having Your Voice Heard] (2007).<br />
*[https://www.nrc.gov/docs/ML1006/ML100601337.pdf Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions] (Feb. 18, 2010).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-Emergencies.pdf Memorandum for Heads of Federal Departments and Agencies: Emergencies and NEPA] (May 12, 2010).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CatEx_guidance.pdf Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act] (Dec. 6, 2010).<br />
*[https://www.energy.gov/sites/prod/files/2017/06/f35/NEPA-CEQ_Mitigation_and_Monitoring_Guidance_14Jan2011.pdf Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact] (Jan. 14, 2011).<br />
*[https://www.energy.gov/sites/prod/files/NEPA_CEQGuidance_EfficientReviewsUnderNEPA_03_12_12.pdf Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act] (Mar. 12, 2012).<br />
*[https://www.energy.gov/sites/prod/files/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907-2012.pdf Joint Memorandum on Environmental Collaboration and Conflict Resolution] (Sept. 7, 2012).<br />
*[https://www.energy.gov/sites/prod/files/G-CEQ-NEPA_NHPA_Section_106_Handbook_Mar2013.pdf NEPA and NHPA: A Handbook for Integrating NEPA and Section 106] (2013).<br />
*[https://www.energy.gov/sites/prod/files/2014/03/f9/NEPA_CEQA_FinalHandbook_February2014_0.pdf NEPA and CEQA: Integrating State and Federal Environmental Reviews] (2014).<br />
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Effective_Use_of_Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf Memorandum for Heads of Departments and Agencies: Guidance on Effective Use of Programmatic NEPA Reviews] (Dec. 18, 2014).<br />
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Emergencies_and_NEPA.pdf Emergencies and the National Environmental Policy Act] (2016).<br />
*[https://www.govinfo.gov/content/pkg/FR-2017-09-14/pdf/2017-19425.pdf Initial List of Actions to Enhance and Modernize the Federal Environmental Review and Authorization Process], 82 Fed. Reg. 43226 (Sept. 17, 2017).<br />
*[https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html Guidance on Consideration of Greenhouse Gases] (2019).<br />
*[https://ceq.doe.gov/docs/nepa-practice/emergencies-and-nepa-guidance-2020.pdf Emergencies and NEPA Guidance] (2020).<br />
*[https://www.federalregister.gov/documents/2022/04/20/2022-08288/national-environmental-policy-act-implementing-regulations-revisions National Environmental Policy Act Implementing Regulations] (2022).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Frederick R. Anderson, ''NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act'' (Res. for the Future, Inc.; Baltimore: Johns Hopkins Univ. Press, 1973).<br />
*Richard R. L. Andrews et al., ''Substantive Guidance for Environmental Impact Assessment: An Exploratory Study'' (Inst. for Ecology, Butler Univ., 1977).<br />
*Eugene Bardach & Lucian Pugliaresi, [https://www.nationalaffairs.com/storage/app/uploads/public/58e/1a4/c4c/58e1a4c4c619d491120331.pdf The Environmental Impact Statement vs. The Real World], 49 Pub. Int. 22 (1977).<br />
*Richard K. Berg & Roger C. Cramton, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2338&context=facpub On Leading a Horse to Water: NEPA and the Federal Bureaucracy], 71 Mich. L. Rev. 511 (1973).<br />
*Michael C. Blumm & Keith Mosman, [https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1009&context=wjelp The Overlooked Role of the National Environmental Policy Act in Protecting the Western Environment: NEPA in the Ninth Circuit], 2 Wash. J. Envtl. L. & Pol’y 193 (2012).<br />
*Michael C. Blumm & Marla Nelson, [https://lawreview.vermontlaw.edu/wp-content/uploads/2013/02/02-Blumm.pdf Pluralism and the Environment Revisited: The Role of Comment Agencies in NEPA Litigation], 37 Vt. L. Rev. 5 (2013).<br />
*Sharon Buccino, ''NEPA under Assault: Congressional and Administrative Proposals Would Weaken Environmental Review and Public Participation'', 12 N.Y.U. Envtl. L.J. 50 (2003).<br />
*Michael Burger; Jessica Wentz, [https://scholarship.law.columbia.edu/sabin_climate_change/100/ Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review], 41 Harv. Envtl. L. Rev. 109 (2017).<br />
*L. Caldwell, ''A Study of Ways to Improve the Scientific Content and Methodology of Environmental Impact Analysis'' (Sch. of Pub. & Envtl. Affairs, Ind. Univ., 1982).<br />
*Ray Clark & Larry Canter, ''Environmental Policy and NEPA: Past, Present, and Future'' (CRC Press 1997).<br />
*Jamison E. Colburn, [https://journals.library.columbia.edu/index.php/cjel/article/view/3569/1418 The Risk in Discretion: Substantive NEPA’s Significance], 41 Colum. J. Envtl. L. 1 (2016).<br />
*Wendy B. Davis, [https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1288&context=akronlawreview The Fox Is Guarding the Henhouse: Enhancing the Role of the EPA in FONSI Determinations Pursuant to NEPA], 39 Akron L. Rev. 35 (2006).<br />
*Holly Doremus, [https://lira.bc.edu/work/ns/d153c5a9-db72-42bd-93c1-e545559e5b35/reader/3b5357e6-818d-441a-a135-dff92b910951 Through Another’s Eyes: Getting the Benefit of Outside Perspectives in Environmental Review], 38 B.C. Envtl. Aff. L. Rev. 247 (2011).<br />
*Envtl. Law Inst., ''NEPA Deskbook'' (4th ed. 2014).<br />
*Arthur F. Ferguson, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3324&context=ilj The Sin of Omission: Inaction as Action Under Section 102(2)(C) of the National Environmental Policy Act of 1969], 53 Ind. L.J. 497 (1978).<br />
*Robert L. Fischman & Mark S. Squillace, ''Environmental Law—Environmental Decisionmaking: NEPA and the Endangered Species Act'' (Anderson Publ’g Co., 3d ed. 2000).<br />
*Melanie Fisher, ''The CEQ Regulations: New Stage in the Evolution of NEPA'', 3 Harv. Envtl. L. Rev. 347 (1979).<br />
*Victor B. Flatt, [https://www.law.uh.edu/eelpj/publications/6-2/02Flatt.pdf The “Worst Case” May Be the Best: Rethinking NEPA Law to Avoid Future Environmental Disasters], 6 Envt’l & Energy L & Pol’y J 25 (2011).<br />
*Valerie Fogelman, ''Guide to the National Environmental Policy Act: Interpretations, Applications, and Compliance'' (Praeger 1990).<br />
*Robert L. Glicksman, David L. Markell, William B. Buzbee, Daniel R. Mandelker & Daniel Bodansky, ''Environmental Protection: Law and Policy, Chapter IV'' (Wolters Kluwer 2011).<br />
*Craig N. Johnston, William F. Funk & Victor B. Flatt, ''Legal Protection of the Environment, Chapter 2'' (West Publ’g, 3d ed. 2010).<br />
*Bradley C. Karkkainen, ''Whither NEPA?'', 12 N.Y.U. Envtl. L.J. 333 (2004).<br />
*Bradley C. Karkkainen, ''Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance'', 102 Colum. L. Rev. 903 (2002).<br />
*Ian M. Kirschner, Comment, ''NEPA’s Forgotten Clause: Impact Statements for Legislative Proposals'', 58 B.U. L. Rev. 560 (1978).<br />
*Harold Leventhal, [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5731&context=penn_law_review Environmental Decisionmaking and the Role of the Courts], 122 U. Pa. L. Rev. 509 (1974).<br />
*Daniel R. Mandelker, ''NEPA Law and Litigation'' (Clark Boardman Callaghan, 2d ed. 2014).<br />
*Thomas O. McGarity, ''The Courts, the Agencies and NEPA Threshold Issues'', 55 Tex. L. Rev. 801 (1977).<br />
*Thomas O. McGarity, [https://www.acus.gov/sites/default/files/documents/1985-02 Pt.1 The Role of Regulatory Analysis in Regulatory Decisionmaking.pdf The Role of Regulatory Analysis in Regulatory Decisionmaking] (May 1985) (report to ACUS).<br />
*Arthur W. Murphy, [https://www.acus.gov/sites/default/files/documents/Q%201973-06%20MURPHY.A%20Envir%20Issues%20in%20Licensing%203%20ACUS%20363%20xr%20U4.pdf The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?] (1975) (report to ACUS).<br />
*Gregory L. Ogden, [https://www.acus.gov/sites/default/files/documents/1984-01%20Public%20Regulation%20of%20Siting%20of%20Industrial%20Development%20Projects.pdf Report on Public Regulation of Siting of Industrial Development Projects] (July 1984) (report to ACUS).<br />
*Mark A. Pridgeon et al., ''State Environmental Policy Acts: A Survey of Recent Developments'', 2 Harv. Envtl. L. Rev. 419 (1978).<br />
*Mark Reeve, Comment, ''Scientific Uncertainty and the National Environmental Policy Act—The Council on Environmental Quality’s Regulation 40 CFR section 1502.22'', 60 Wash. L. Rev. 101 (1984).<br />
*Arnold W. Reitze, Jr., [https://scholarship.law.wm.edu/wmelpr/vol43/iss1/6/ Dealing With Climate Change Under the National Environmental Policy Act, Climate Change--Laws, regulations and rules, Environmental Impact Statements, Greenhouse Gases], 43 Wm. & Mary Envtl. L. & Pol'y Rev. 173 (2018).<br />
*William Rodgers, Jr., ''Environmental Law, Chapter 9'' (West Publ’g, 2d ed. 1994).<br />
*John Ruple, Mark Capone, [https://law.lclark.edu/live/files/23293-46-4ruplecaponepdf NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning and NEPA in the Mountain West], 46 Envtl. L. 953 (2016).<br />
*Courtney A. Schultz, [https://core.ac.uk/download/pdf/36686883.pdf History of the Cumulative Effects Analysis Requirement Under NEPA and Its Interpretation in U.S. Forest Service Case Law], 27 J. Envtl. L. & Litig. 125 (2012).<br />
*Helen Leanne Seassio, ''Legislative and Executive Efforts to Modernize NEPA and Create Efficiencies in Environmental Review'', 45 Tex. Envtl. L.J. 317 (2015).<br />
*Serge Taylor, ''Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform'' (Stan. U. Press 1984).<br />
*James T.B. Tripp & Nathan G. Alley, ''Streamlining NEPA’s Environmental Review Process: Suggestions for Agency Reform'', 12 N.Y.U. Envtl. L.J. 74 (2003).<br />
*Charles F. Weiss, Note, ''Federal Agency Treatment of Uncertainty in Environmental Impact Statements Under the CEQ’s Amended NEPA Regulation § 1502.22: Worst Case Analysis or Risk Threshold?'', 86 Mich. L. Rev. 777 (1988).<br />
*N.C. Yost, ''The Governance of Environmental Affairs—Toward Consensus'' (Aspen Inst. for Humanistic Studies, 1982).<br />
</div><br />
<br />
===Agency Regulations===<br />
Federal agencies have promulgated their own individualized regulations within the parameters set by the CEQ regulations. <br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*'''Advisory Council on Historic Preservation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt36.3.805&rgn=div5 36 C.F.R. Part 805])<br />
*'''Agency for International Development''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt22.1.216&rgn=div5 22 C.F.R. Part 216])<br />
*'''Agricultural Research Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt7.6.520&rgn=div5 7 C.F.R. Part 520])<br />
*'''Agriculture Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt7.1.1b&rgn=div5 7 C.F.R. Part 1b])<br />
*'''Air Force Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt32.6.989&rgn=div5 32 C.F.R. Part 989])<br />
*'''Animal and Plant Health Inspection Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt7.5.372&rgn=div5 7 C.F.R. Part 372])<br />
*'''Army Corps of Engineers''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt33.3.230&rgn=div5 33 C.F.R. Part 230])<br />
*'''Army Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt32.4.651&rgn=div5 32 C.F.R. Part 651])<br />
*'''Bureau of Land Management''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt43.2.1600&rgn=div5 43 C.F.R. Part 1600])<br />
*'''Committee for Purchase from People Who Are Blind or Severely Disabled''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt41.1.51_67&rgn=div5 41 C.F.R. Part 51–7])<br />
*'''Community Development Financial Institutions Fund''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt12.10.1815&rgn=div5 12 C.F.R. Part 1815])<br />
*'''Consumer Product Safety Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt16.2.1021&rgn=div5 16 C.F.R. Part 1021])<br />
*'''Denali Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt45.3.900&rgn=div5 45 C.F.R. Part 900])<br />
*'''Energy Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt10.4.1021&rgn=div5 10 C.F.R. Part 1021])<br />
*'''Environmental Protection Agency''' <br />
**Procedures for Implementing NEPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.1.6&rgn=div5 40 C.F.R. Part 6])<br />
**Environmental Impact Assessment of Nongovernmental Activities in Antarctica ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.1.8&rgn=div5 40 C.F.R. Part 8])<br />
**Criteria for the Evaluation of Permit Applications for Ocean Dumping of Materials ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.27.227&rgn=div5 40 C.F.R. Part 227])<br />
*'''Environmental Quality Council''' <br />
**Purpose and Policy ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1500&rgn=div5 40 C.F.R. Part 1500])<br />
**NEPA and Agency Planning ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1501&rgn=div5 40 C.F.R. Part 1501])<br />
**Environmental Impact Statement ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1502&rgn=div5 40 C.F.R. Part 1502])<br />
**Commenting on Environmental Impact Statements ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1503&rgn=div5 40 C.F.R. Part 1503])<br />
**Predecision Referrals to the Council of Proposed Federal Actions Determined to Be Environmentally Unsatisfactory ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1504&rgn=div5 40 C.F.R. Part 1504])<br />
**NEPA and Agency Decisionmaking ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1505&rgn=div5 40 C.F.R. Part 1505])<br />
**Other Requirements of NEPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1506&rgn=div5 40 C.F.R. Part 1506])<br />
**Agency Compliance ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1507&rgn=div5 40 C.F.R. Part 1507])<br />
**Definitions ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1508&rgn=div5 40 C.F.R. Part 1508])<br />
**Office of Environmental Quality Management Fund ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1518&rgn=div5 40 C.F.R. Part 1518])<br />
*'''Export-Import Bank''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt12.5.408&rgn=div5 12 C.F.R. Part 408])<br />
*'''Farm Service Agency''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.7.799&rgn=div5 7 C.F.R. Part 799])<br />
*'''Federal Communications Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=sp47.1.1.i&rgn=div6 47 C.F.R. Part 1, Subpt. I])<br />
*'''Federal Energy Regulatory Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt18.1.380&rgn=div5 18 C.F.R. Part 380])<br />
*'''Federal Highway Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt23.1.771&rgn=div5 23 C.F.R. Part 771])<br />
*'''Federal Maritime Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt46.9.504&rgn=div5 46 C.F.R. Part 504])<br />
*'''Federal Trade Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=sp16.1.1.i&rgn=div6 16 C.F.R. Part 1, Subpt. I])<br />
*'''Federal Transit Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt23.1.771&rgn=div5 23 C.F.R. Part 771])<br />
*'''Food and Drug Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt21.1.25&rgn=div5 21 C.F.R. Part 25])<br />
*'''Forest Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt36.2.220&rgn=div5 36 C.F.R. Part 220])<br />
*'''Housing and Urban Development Department'''<br />
**Protection and Enhancement of Environmental Quality ([https://www.ecfr.gov/cgi-bin/text-idx?SID=d883c54cce1263fa07b72070e3ac9b34&mc=true&tpl=/ecfrbrowse/Title24/24cfr50_main_02.tpl 24 C.F.R. Part 50])<br />
**Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities ([https://www.ecfr.gov/cgi-bin/text-idx?SID=d883c54cce1263fa07b72070e3ac9b34&mc=true&tpl=/ecfrbrowse/Title24/24cfr58_main_02.tpl 24 C.F.R. Part 58])<br />
*'''Interior Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt43.1.46&rgn=div5 43 C.F.R. Part 46])<br />
*'''Justice Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt28.2.61&rgn=div5 28 C.F.R. Part 61])<br />
*'''Labor Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt29.1.11&rgn=div5 29 C.F.R. Part 11])<br />
*'''Marine Mammal Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt50.11.530&rgn=div5 50 C.F.R. Part 530])<br />
*'''National Aeronautics and Space Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt14.5.1216&rgn=div5 14 C.F.R. Part 1216])<br />
*'''National Highway Traffic Safety Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt49.6.520&rgn=div5 49 C.F.R. Part 520])<br />
*'''National Institute of Food and Agriculture''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.15.3407&rgn=div5 7 C.F.R. 3407])<br />
*'''National Oceanic and Atmospheric Administration, National Estuarine Research Reserve System''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=se15.3.921_113&rgn=div8 15 C.F.R. § 921.13])<br />
*'''National Science Foundation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt45.3.640&rgn=div5 45 C.F.R. Part 640])<br />
*'''Natural Resources Conservation Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.6.650&rgn=div5 7 C.F.R. Part 650])<br />
*'''Navy Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt32.5.775&rgn=div5 32 C.F.R. Part 775])<br />
*'''Nuclear Regulatory Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt10.2.51&rgn=div5 10 C.F.R. Part 51])<br />
*'''Pennsylvania Avenue Development Corporation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt36.3.907&rgn=div5 36 C.F.R. Part 907])<br />
*'''Postal Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt39.1.775&rgn=div5 39 C.F.R. Part 775])<br />
*'''Presidio Trust''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt36.3.1010&rgn=div5 36 C.F.R. Part 1010])<br />
*'''Securities and Exchange Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=sp17.3.200.k&rgn=div6 17 C.F.R. Part 200, Subpt. K])<br />
*'''State Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt22.1.161&rgn=div5 22 C.F.R. Part 161])<br />
*'''Surface Transportation Board''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt49.8.1105&rgn=div5 49 C.F.R. Part 1105])<br />
*'''USDA Rural Development''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.14.1970&rgn=div5 7 C.F.R. Part 1970])<br />
*'''Utah Reclamation Mitigation and Conservation Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt43.2.10010&rgn=div5 43 C.F.R. Part 10010])<br />
*'''Veterans Affairs Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt38.2.26&rgn=div5 38 C.F.R. Part 26])<br />
*'''Water Resources Council''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt18.2.707&rgn=div5 18 C.F.R. Part 707])<br />
</div><br />
<br />
==Statutory Provisions==<br />
National Environmental Policy Act<br />
<br />
Title 42 U.S. Code<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4321&num=0&edition=prelim § 4321. Congressional declaration of purpose.]<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter55/subchapter1&edition=prelim Subchapter I—Policies and Goals]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4331&num=0&edition=prelim § 4331. Congressional declaration of national environmental policy]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4332&num=0&edition=prelim § 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination efforts]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4333&num=0&edition=prelim § 4333. Conformity of administrative procedures to national environmental policy]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4334&num=0&edition=prelim § 4334. Other statutory obligations of agencies]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4335&num=0&edition=prelim § 4335. Efforts supplemental to existing authorizations]<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter55/subchapter2&edition=prelim Subchapter II—Council on Environmental Quality]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4342&num=0&edition=prelim § 4342. Establishment, membership; Chairman; appointments]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4343&num=0&edition=prelim § 4343. Employment of personnel, experts and consultants]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4344&num=0&edition=prelim § 4344. Duties and functions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4345&num=0&edition=prelim § 4345. Consultation with Citizens’ Advisory Committee on Environmental Quality and other representatives]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=National_Environmental_Policy_Act&diff=1666National Environmental Policy Act2023-08-15T20:13:10Z<p>MGluth: </p>
<hr />
<div>[https://www.fsa.usda.gov/Internet/FSA_File/nepa_statute.pdf 42 U.S.C. §§ 4321–4347] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-83/pdf/STATUTE-83-Pg852.pdf Pub. L. No. 91-190], 83 Stat. 852, Jan. 1, 1970. Amended by [http://uscode.house.gov/statutes/pl/94/52.pdf Pub. L. No. 94-52], § 2, 89 Stat. 258, July 3, 1975; by [http://uscode.house.gov/statutes/pl/94/83.pdf Pub. L. No. 94-83], 89 Stat. 424, Aug. 9, 1975; by [https://www.govinfo.gov/content/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf Pub. L. No. 112-141], Div. A, Title I, Subtitle C, § 1319, 126 Stat. 551, July 6, 2012.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/ceq/ Council on Environmental Quality]<br />
<br />
[https://ceq.doe.gov/ NEPA.gov] <br />
<br />
==Overview==<br />
<br />
The National Environmental Policy Act (NEPA) was the first federal statute to use the “impact statement” approach in federal regulation. Its purpose is to require federal agencies to analyze and consider the environmental impact of their actions in an open and public process. NEPA also created the Council on Environmental Quality (CEQ) within the Executive Office of the President.<br />
<br />
===Environmental Impact Statements=== <br />
<br />
The core of NEPA is found in section 102(2)(C) (codified at 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4332&num=0&edition=prelim § 4332(2)(C)]), which creates the environmental impact statement (EIS) requirement. The provision requires that: <blockquote>all agencies of the Federal Government . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.</blockquote>The provision requires the responsible federal official to consult with and seek comments from other affected agencies. Copies of the statements and relevant comments must be made public and must accompany the proposal through the agency review process.<br />
<br />
Despite language in NEPA that might be construed otherwise, the Supreme Court has held that NEPA does not impose any substantive requirement on agencies to favor the environment in the agency’s decisionmaking. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep444/usrep444223/usrep444223.pdf Strycker’s Bay Neighborhood Council, Inc. v. Karlen], 444 U.S. 223 (1980). Notwithstanding the lack of substantive requirements, NEPA has been the source of an extremely large number of challenges to agency action, arguing either that the agency failed to prepare an EIS when NEPA required it or that the EIS that the agency prepared was inadequate. Even after 45 years, agencies frequently lose these suits, with the result that the agency action is enjoined until the agency fully complies with NEPA’s procedural requirements.<br />
<br />
===Council on Environmental Quality Role===<br />
<br />
The CEQ, created by title 11 of NEPA, is the legal overseer of NEPA and was active in shaping NEPA law in its early years. Until 2000, it prepared extensive annual environmental quality reports pursuant to 42 U.S.C. § 4341, which was effectively repealed in that year. CEQ took the lead in developing appropriate procedures for EIS preparation. In Executive Order 11514, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO11514envtlquality.pdf Protection and Enhancement of Environmental Quality], issued shortly after NEPA’s passage, President Nixon gave CEQ the authority to issue guidelines to agencies for the preparation of EISs. The CEQ’s original guidelines were nonbinding but were relied upon by most federal agencies when promulgating their own procedures. [https://www.govinfo.gov/content/pkg/FR-1971-04-23/pdf/FR-1971-04-23.pdf#page=82 Statements on Proposed Federal Actions Affecting the Environment], 36 Fed. Reg. 7724 (Apr. 23, 1971). In 1977, President Carter significantly expanded CEQ’s authority by giving it the power to issue binding regulations in Executive Order 11991, ''Relating to Protection and Enhancement of Environmental Quality'', (May 24, 1977). These regulations are codified at [https://www.ecfr.gov/cgi-bin/text-idx?SID=c38c7cc340821485cfc86a6bed118949&mc=true&tpl=/ecfrbrowse/Title40/40chapterV.tpl 40 C.F.R Parts 1500–1508]. ''See'' Implementation of Procedural Provisions, 43 Fed. Reg. 55978 (Nov. 28, 1978). The Supreme Court has since treated these regulations as deserving substantial deference. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep442/usrep442347/usrep442347.pdf Andrus v. Sierra Club], 442 U.S. 347 (1979).<br />
<br />
The CEQ regulations cover many of the procedural issues that have emerged in the extensive litigation over the meaning of NEPA’s terms. The regulations, all in Title 40 of the Code of Federal Regulations, provide comprehensive guidance on what constitutes a “major federal action” requiring an EIS, the preparation of draft, supplemental and final statements, page limits, recommended format and content ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1502&rgn=div5 Part 1502]); the comment process ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1503&rgn=div5 Part 1503]); predecision referral of interagency disputes to CEQ ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1504&rgn=div5 Part 1504]); integration with agency decisionmaking ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1505&rgn=div5 Part 1505]); elimination of duplication with state and local requirements and procedures for filing with EPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1506&rgn=div5 Part 1506]); and agency compliance ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1507&rgn=div5 Part 1507]).<br />
<br />
In addition to the regulations, CEQ also provided continuing guidance to agencies on implementation of NEPA. For example, in 1981 it published the [https://www.energy.gov/nepa/articles/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act Memorandum to Agencies Containing Answers to 40 Most Asked Questions on NEPA Regulations]. In April 1981, it issued a [https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping] on the subject of “scoping guidance.” In 1983, after a solicitation of comments on the existing regulations and a two-year review process, CEQ published a supplemental memorandum giving further guidance to agencies. In 1993, it issued a guidance memorandum on the subject of pollution prevention and NEPA. In 1997, it issued two guidance memoranda, one on cumulative effects analysis under NEPA and the other on considering environmental justice under NEPA. In 2002, CEQ established a NEPA Task Force to undertake a thorough review of NEPA implementation. The Task Force’s report, [https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf Modernizing NEPA Implementation], was issued a year later. It contained recommendations designed to modernize the implementation of NEPA and make the NEPA process more effective and efficient.<br />
<br />
More recently, CEQ has provided guidance on the use of categorical exclusions (in which agencies may exempt certain actions from NEPA review) and on the use of mitigating measures to avoid a finding of significant impact on the environment. In addition, CEQ has issued guidance to assist agencies in analyzing greenhouse gas emissions and climate change effects of their proposed actions under NEPA. Most recently, CEQ issued interim guidance in January 2023 stating that agencies should consider (1) the potential effects of a proposed action on climate change, including by assessing both greenhouse gas emissions and reductions from the proposed action, and (2) the effects of climate change on a proposed action and its environmental impacts. <br />
<br />
The CEQ also compiles [https://ceq.doe.gov/get-involved/eis_filings.html annual data on the number of environmental impact statements] filed by agencies and the trends in NEPA litigation.<br />
<br />
Originally, under 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4342&num=0&edition=prelim § 4342], CEQ consisted of three members appointed by the President with the advice and consent of the Senate, one of whom the President designated as chairman. However, beginning in 1997, Congress inserted a provision in annual appropriations acts stating that, notwithstanding this section of NEPA, the CEQ would consist of one member appointed by the President with the advice and consent of the Senate, who should serve as chairman.<br />
<br />
==Legislative History==<br />
<br />
Senators Henry M. Jackson and Ted Stevens introduced S. 1075, the original NEPA legislation, on February 18, 1969. It authorized the Secretary of the Interior to conduct a research program on environmental problems and created the Council on Environmental Quality. A hearing was held April 16, 1969 during which witnesses (primarily Lynton Caldwell, professor of political science at Indiana University) urged the creation of an “action-forcing” mechanism, which later became the environmental impact statement. S. 1075 was reported with amendments and an accompanying report of the Senate Committee on Interior and Insular Affairs on July 9, 1969. The following day the bill passed the Senate unanimously.<br />
<br />
A House of Representatives’ subcommittee of the Committee on Merchant Marine and Fisheries held a series of hearings during May and June 1969 on various related bills. On July 1, 1969, Representative John Dingell and others introduced H.R. 12549, which became the leading House bill. It, however, lacked the impact statement requirement. On July 11, 1969, the full Committee reported H.R. 12549. A supplemental report was filed on July 19. On September 23, 1969, the House passed the Senate bill, but only after substituting the text of the House bill in place of the Senate’s language. It then requested a conference.<br />
<br />
On October 8, 1969, after listening to Senator Jackson address the differences between the two versions, the Senate voted to insist on its version and appointed conferees. On December 17, 1969, the conference committee reported out a substitute version of S. 1075. This compromise version accepted the Senate’s environmental impact statement requirement, adding the language “to the fullest extent possible.” That same day, the Senate approved the Conference Report. The House followed suit on December 23. The bill became [https://www.govinfo.gov/content/pkg/STATUTE-83/pdf/STATUTE-83-Pg852.pdf Pub. L. No. 91-190] on January 1, 1970.<br />
<br />
Section 201 of NEPA, 42 U.S.C. § 4341, which required the President to transmit an annual report to Congress relating to the environment, was eliminated by the Federal Reports Elimination and Sunset Act of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ66/pdf/PLAW-104publ66.pdf Pub. L. No. 104-66]).<br />
<br />
Section 202 of NEPA, 42 U.S.C. § 4342, was effectively amended, although its language was not changed, by a series of annual riders to appropriation acts beginning in 1997 and culminating in a permanent rider to an appropriation act in 2005 that states: “That notwithstanding section 202 of the National Environmental Policy Act of 1970, the Council shall consist of one member, appointed by the President, by and with the advice and consent of the Senate, serving as chairman and exercising all powers, functions, and duties of the Council.” ''See'' ([https://www.congress.gov/109/plaws/publ54/PLAW-109publ54.pdf Pub. L. No. 109-54], Title III). This was apparently the consequence of President Clinton’s failure (or refusal) to appoint more than one member of the Council. ''See'' [https://www.congress.gov/104/crpt/hrpt628/CRPT-104hrpt628.pdf H.R. Rep. No. 104-628] (1996).<br />
<br />
Section 4332a of Title 42 was added to NEPA by Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) ([https://www.govinfo.gov/content/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf Pub. L. No. 112-141]), a massive reauthorization of the federal highway program. Although contained in the federal highway authorization act in order to expedite environmental planning for new and expanded highways, the new provision applies generally to environmental planning.<br />
<br />
The Fiscal Responsibility Act of 2023 (FRA) contained multiple amendments to NEPA. ''See'' H.R. 3746, Title III, Sec. 321 (2023). These amendments included, among other things, procedures for the appointment of a lead agency where multiple agencies are involved in the environmental review, page limits and deadlines for environmental documents, and rules governing the agency's adoption of categorial exclusions of another agency. In addition, the FRA directed CEQ to conduct a study and submit a report to Congress within one year of enactment of the FRA on the potential for online and digital technologies to address delays in reviews and improve public accessibility and transparency of NEPA reviews.<br />
<br />
===Source Note===<br />
<br />
There is an extensive literature of commentary, criticism, and analysis of NEPA and its implementation. Of course, the most authoritative pronouncements emanate from the [https://ceq.doe.gov/ Council on Environmental Quality]<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://ceq.doe.gov/docs/laws-regulations/Congress-White-Paper.pdf Congressional White Paper on a National Policy for the Environment] submitted to the United States Congress under the Auspices of the S. Comm. on Interior and Insular Affairs and the H. Comm. on Science and Astronautics, 90th Cong. (1968).<br />
*''Joint House-Senate Colloquium to Discuss a National Policy for the Environment'', Hearing Before the S. Comm. on Science and Astronautics, 90th Cong. (1968).<br />
*''Report of Managing the Environment'', Staff of Subcomm. on Science, Research, and Dev. of the H. Comm. on Science and Astronautics, 90th Cong. (1968).<br />
*Conference Report on S. 1075, H.R. Rep. No. 91-765 (1969).<br />
*Report to Accompany S. 1075, S. Rep. No. 91-296 (1969).<br />
*Report to Accompany H.R. 12549, [https://coast.noaa.gov/data/Documents/OceanLawSearch/House%20Report%20No.%2091-378%20Part%201.pdf H.R. Rep. No. 91-378] (1969).<br />
*''Hearings on the Administration of the National Environmental Policy Act'', Before the Subcomm. on Fisheries and Wildlife Conservation of the H. Comm. on Merchant Marine and Fisheries, 91st Cong. (1971) (2 parts).<br />
*''Hearings on National Environmental Policy Act Oversight'', Before the Subcomm. on Fisheries and Wildlife Conservation and the Env’t of the H. Comm. on Merchant Marine and Fisheries, 94th Cong. (1976).<br />
*Staff of Senate Comm. on Interior and Insular Affairs, ''Council on Environmental Quality: Oversight Report'', 94th Cong., 2d Sess. (1976).<br />
*''Hearings on CEQ Implementation of the National Environmental Policy Act'', Before the Subcomm. on Fisheries and Wildlife Conservation and the Env’t, H. Comm. on Merchant Marine and Fisheries, 95th Cong. (1978).<br />
*''Hearings on Implementation of the National Environmental Policy Act by the Council on Environmental Quality'', Before the Subcomm. on Toxic Substances and Envtl. Oversight of the S. Comm. on Env’t and Public Works, 97th Cong. (1982).<br />
*''Hearings on Compliance with the National Environmental Policy Act of 1969'', Before the Subcomm. on Hazardous Wastes and Toxic Substances of the S. Comm. on Environmental and Public Works, 100th Cong. (1987-1988).<br />
*''Hearing on the Application of the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations of the S. Comm. on Energy and Natural Resources, 104th Cong. (1995).<br />
*''Hearing on the Efforts by the Federal Land Management Agencies to Strengthen the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations, S. Comm. on Energy and Natural Resources, 104th Cong. (1996).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-105hhrg47866/pdf/CHRG-105hhrg47866.pdf Problems and Issues with the National Environmental Policy Act of 1969], Oversight Hearing Before the H. Comm. on Resources Before the H. Comm. on Res., 105th Cong. (1998).<br />
*MAP-21 Conference Report to Accompany H.R. 4348, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt557/pdf/CRPT-112hrpt557.pdf H.R. Rep. No. 112-557] (2012).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg73228/pdf/CHRG-112hhrg73228.pdf The Council on Environmental Quality’s FY 2013 Funding Request and the Effects on NEPA, National Ocean Policy and Other Federal Environmental Policy Initiatives], Hearing Before the H. Comm. on Nat. Res., 112th Cong. (2012).<br />
*''[https://www.govinfo.gov/content/pkg/CHRG-113hhrg80524/pdf/CHRG-113hhrg80524.pdf Hearing on H.R. 250, H.R. 382, H.R. 432, H.R. 758, H.R. 1512, H.R. 1434, H.R. 1439, H.R. 1459, and H.R. 885]'', Hearing Before the Subcomm. on Pub. Lands and Envtl. Regulation of the H. Comm. on Nat. Res., 113th Cong. (2013).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82951/pdf/CHRG-113hhrg82951.pdf The Department of the Interior’s Proposal to Use a Categorical Exclusion Under the National Environmental Policy Act (NEPA) for Adding Species to the Lacey Act’s List of Injurious Wildlife], Hearing Before the Subcomm. on Fisheries, Wildlife, Oceans and Insular Affairs of the H. Comm. on Nat. Res., 113th Cong. (2013).<br />
*[https://www.govinfo.gov/content/pkg/CRPT-113hrpt385/pdf/CRPT-113hrpt385.pdf H.R. Rep. No. 113-385] (2014).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg27722/pdf/CHRG-115hhrg27722.pdf Modernizing NEPA for the 21st Century], Hearing Before the H. Comm. on Nat. Res., 115th Cong. (2017) ([https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=403418 video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg29883/pdf/CHRG-115hhrg29883.pdf The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare], Hearing Before the H. Comm. on Nat. Res., 115th Cong. (2018) ([https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=404527 video]).<br />
</div><br />
<br />
===Executive Orders and OMB/OIRA Documents===<br />
<br />
*Executive Order 11514, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO11514envtlquality.pdf Protection and Enhancement of Environmental Quality], 35 Fed. Reg. 4247 (Mar. 5, 1970).<br />
*Executive Order 11991, ''Relating to Protection and Enhancement of Environmental Quality'', 42 Fed. Reg. 26967 (May 24, 1977).<br />
*Executive Order 12852, [https://www.govinfo.gov/content/pkg/WCPD-1993-07-05/pdf/WCPD-1993-07-05-Pg1201.pdf President’s Council on Sustainable Development], 58 Fed. Reg. 39107 (July 19, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations], 60 Fed. Reg. 6381 (Feb. 11, 1994).<br />
*Executive Order 13514, [https://www.govinfo.gov/content/pkg/DCPD-200900783/pdf/DCPD-200900783.pdf Federal Leadership in Environmental, Energy, and Economic Performance], 74 Fed. Reg. 52117 (Oct. 8, 2009).<br />
*Executive Order 13807, [https://www.govinfo.gov/content/pkg/FR-2017-08-24/pdf/2017-18134.pdf Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects], 82 Fed. Reg. 40463 (Aug. 15, 2017).<br />
*M-18-13, [https://www.whitehouse.gov/wp-content/uploads/2018/04/M-18-13.pdf One Federal Decision Framework for the Environmental Review and Authorization Process for Major Infrastructure Projects Under Executive Order 13807] (Mar. 20, 2018).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807] (Apr. 9, 2018).<br />
*M-21-23, [https://www.whitehouse.gov/wp-content/uploads/2021/04/M-21-23.pdf Revocation of OMB Memorandum M-21-01, "Budget and Management Guidance on Updates to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act"] (April 26, 2021).<br />
<br />
===ACUS Recommendations===<br />
<br />
*73-6, [https://www.acus.gov/sites/default/files/documents/73-6-ss.pdf Procedures for Resolution of Environmental Issues in Licensing Proceedings]<br />
*84-1, [https://www.acus.gov/sites/default/files/documents/84-1_0.pdf Public Regulation of Siting of Industrial Development Projects]<br />
*85-2, [https://www.acus.gov/sites/default/files/documents/85-2.pdf Agency Procedures for Performing Regulatory Analysis of Rules]<br />
<br />
===Council on Environmental Quality Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://ceq.doe.gov/ceq-reports/annual_environmental_quality_reports.html Environmental Quality Annual Reports, 1970-1997].<br />
*''Environmental Impact Statements: An Analysis of Six Years’ Experience by Seventy Federal Agencies'' (1976).<br />
*[https://www.energy.gov/sites/prod/files/G-CEQ-40Questions.pdf Memorandum to Agencies: Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations] (Mar. 23, 1981)<br />
*[https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping] (Apr. 30, 1981).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-GuidanceRegulations.pdf Guidance Regarding NEPA Regulations], 48 Fed. Reg. 34263–68 (July 28, 1983).<br />
<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PollutionPreventionNEPA.pdf Memorandum to Heads of Departments and Agencies Regarding Pollution Prevention and the National Environmental Policy Act], 58 Fed. Reg. 6478–81 (Jan. 29, 1993).<br />
*[https://ceq.doe.gov/docs/ceq-publications/Incorporating_Biodiversity_1993.pdf Incorporating Biodiversity Considerations into Environmental Impact Analysis Under the National Environmental Policy Act] (1993).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-ConsidCumulEffects.pdf Considering Cumulative Effects Under the National Environmental Policy Act] (1997).<br />
*[https://www.energy.gov/sites/prod/files/2014/08/f18/CEQTransboundaryGuidance_07_01_97.pdf Guidance on NEPA Analyses for Transboundary Impacts] (1997).<br />
*[https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (1997).<br />
*[https://www.energy.gov/sites/prod/files/G-CEQ-DesigNonfedCoopAgencies.pdf Memorandum for Heads of Federal Agencies: Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA] (July 28, 1999).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CoopAgenciesImplem.pdf Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (Jan. 30, 2002).<br />
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/connaughton.pdf Memorandum to Heads of Federal Agencies: Reporting Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (Dec. 23, 2004).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf Guidance on the Consideration of Past Actions in Cumulative Effects Analysis] (June 24, 2005).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-EmergencyGuidance.pdf Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA] (Sept. 8, 2005).<br />
*[https://www.energy.gov/sites/prod/files/2014/04/f15/OMB%20CEQ%20Joint%20Statement_1.pdf Memorandum on Environmental Conflict Resolution] (Nov. 28, 2005).<br />
*[https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf Aligning National Environmental Policy Act Process with Environmental Management Systems] (2007).<br />
*[https://www.energy.gov/sites/prod/files/CEQ_Collaboration_in_NEPA_10-2007.pdf Collaboration in NEPA: A Handbook for NEPA Practitioners] (2007).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CitizensGuide.pdf A Citizen’s Guide to the NEPA: Having Your Voice Heard] (2007).<br />
*[https://www.nrc.gov/docs/ML1006/ML100601337.pdf Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions] (Feb. 18, 2010).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-Emergencies.pdf Memorandum for Heads of Federal Departments and Agencies: Emergencies and NEPA] (May 12, 2010).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CatEx_guidance.pdf Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act] (Dec. 6, 2010).<br />
*[https://www.energy.gov/sites/prod/files/2017/06/f35/NEPA-CEQ_Mitigation_and_Monitoring_Guidance_14Jan2011.pdf Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact] (Jan. 14, 2011).<br />
*[https://www.energy.gov/sites/prod/files/NEPA_CEQGuidance_EfficientReviewsUnderNEPA_03_12_12.pdf Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act] (Mar. 12, 2012).<br />
*[https://www.energy.gov/sites/prod/files/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907-2012.pdf Joint Memorandum on Environmental Collaboration and Conflict Resolution] (Sept. 7, 2012).<br />
*[https://www.energy.gov/sites/prod/files/G-CEQ-NEPA_NHPA_Section_106_Handbook_Mar2013.pdf NEPA and NHPA: A Handbook for Integrating NEPA and Section 106] (2013).<br />
*[https://www.energy.gov/sites/prod/files/2014/03/f9/NEPA_CEQA_FinalHandbook_February2014_0.pdf NEPA and CEQA: Integrating State and Federal Environmental Reviews] (2014).<br />
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Effective_Use_of_Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf Memorandum for Heads of Departments and Agencies: Guidance on Effective Use of Programmatic NEPA Reviews] (Dec. 18, 2014).<br />
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Emergencies_and_NEPA.pdf Emergencies and the National Environmental Policy Act] (2016).<br />
*[https://www.govinfo.gov/content/pkg/FR-2017-09-14/pdf/2017-19425.pdf Initial List of Actions to Enhance and Modernize the Federal Environmental Review and Authorization Process], 82 Fed. Reg. 43226 (Sept. 17, 2017).<br />
*[https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html Guidance on Consideration of Greenhouse Gases] (2019).<br />
*[https://ceq.doe.gov/docs/nepa-practice/emergencies-and-nepa-guidance-2020.pdf Emergencies and NEPA Guidance] (2020).<br />
*[https://www.federalregister.gov/documents/2022/04/20/2022-08288/national-environmental-policy-act-implementing-regulations-revisions National Environmental Policy Act Implementing Regulations] (2022).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Frederick R. Anderson, ''NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act'' (Res. for the Future, Inc.; Baltimore: Johns Hopkins Univ. Press, 1973).<br />
*Richard R. L. Andrews et al., ''Substantive Guidance for Environmental Impact Assessment: An Exploratory Study'' (Inst. for Ecology, Butler Univ., 1977).<br />
*Eugene Bardach & Lucian Pugliaresi, [https://www.nationalaffairs.com/storage/app/uploads/public/58e/1a4/c4c/58e1a4c4c619d491120331.pdf The Environmental Impact Statement vs. The Real World], 49 Pub. Int. 22 (1977).<br />
*Richard K. Berg & Roger C. Cramton, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2338&context=facpub On Leading a Horse to Water: NEPA and the Federal Bureaucracy], 71 Mich. L. Rev. 511 (1973).<br />
*Michael C. Blumm & Keith Mosman, [https://digital.lib.washington.edu/dspace-law/bitstream/handle/1773.1/1190/2WJELP193.pdf?sequence=1 The Overlooked Role of the National Environmental Policy Act in Protecting the Western Environment: NEPA in the Ninth Circuit], 2 Wash. J. Envtl. L. & Pol’y 193 (2012).<br />
*Michael C. Blumm & Marla Nelson, [https://lawreview.vermontlaw.edu/wp-content/uploads/2013/02/02-Blumm.pdf Pluralism and the Environment Revisited: The Role of Comment Agencies in NEPA Litigation], 37 Vt. L. Rev. 5 (2013).<br />
*Sharon Buccino, ''NEPA under Assault: Congressional and Administrative Proposals Would Weaken Environmental Review and Public Participation'', 12 N.Y.U. Envtl. L.J. 50 (2003).<br />
*Michael Burger; Jessica Wentz, [https://scholarship.law.columbia.edu/sabin_climate_change/100/ Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review], 41 Harv. Envtl. L. Rev. 109 (2017).<br />
*L. Caldwell, ''A Study of Ways to Improve the Scientific Content and Methodology of Environmental Impact Analysis'' (Sch. of Pub. & Envtl. Affairs, Ind. Univ., 1982).<br />
*Ray Clark & Larry Canter, ''Environmental Policy and NEPA: Past, Present, and Future'' (CRC Press 1997).<br />
*Jamison E. Colburn, [http://www.columbiaenvironmentallaw.org/wp-content/uploads/sites/14/2016/07/Colburn_-_The_Risk_in_Discretion.pdf The Risk in Discretion: Substantive NEPA’s Significance], 41 Colum. J. Envtl. L. 1 (2016).<br />
*Wendy B. Davis, [https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1288&context=akronlawreview The Fox Is Guarding the Henhouse: Enhancing the Role of the EPA in FONSI Determinations Pursuant to NEPA], 39 Akron L. Rev. 35 (2006).<br />
*Holly Doremus, [https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1688&context=ealr Through Another’s Eyes: Getting the Benefit of Outside Perspectives in Environmental Review], 38 B.C. Envtl. Aff. L. Rev. 247 (2011).<br />
*Envtl. Law Inst., ''NEPA Deskbook'' (4th ed. 2014).<br />
*Arthur F. Ferguson, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3324&context=ilj The Sin of Omission: Inaction as Action Under Section 102(2)(C) of the National Environmental Policy Act of 1969], 53 Ind. L.J. 497 (1978).<br />
*Robert L. Fischman & Mark S. Squillace, ''Environmental Law—Environmental Decisionmaking: NEPA and the Endangered Species Act'' (Anderson Publ’g Co., 3d ed. 2000).<br />
*Melanie Fisher, ''The CEQ Regulations: New Stage in the Evolution of NEPA'', 3 Harv. Envtl. L. Rev. 347 (1979).<br />
*Victor B. Flatt, [https://www.law.uh.edu/eelpj/publications/6-2/02Flatt.pdf The “Worst Case” May Be the Best: Rethinking NEPA Law to Avoid Future Environmental Disasters], 6 Envt’l & Energy L & Pol’y J 25 (2011).<br />
*Valerie Fogelman, ''Guide to the National Environmental Policy Act: Interpretations, Applications, and Compliance'' (Praeger 1990).<br />
*Robert L. Glicksman, David L. Markell, William B. Buzbee, Daniel R. Mandelker & Daniel Bodansky, ''Environmental Protection: Law and Policy, Chapter IV'' (Wolters Kluwer 2011).<br />
*Craig N. Johnston, William F. Funk & Victor B. Flatt, ''Legal Protection of the Environment, Chapter 2'' (West Publ’g, 3d ed. 2010).<br />
*Bradley C. Karkkainen, ''Whither NEPA?'', 12 N.Y.U. Envtl. L.J. 333 (2004).<br />
*Bradley C. Karkkainen, ''Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance'', 102 Colum. L. Rev. 903 (2002).<br />
*Ian M. Kirschner, Comment, ''NEPA’s Forgotten Clause: Impact Statements for Legislative Proposals'', 58 B.U. L. Rev. 560 (1978).<br />
*Harold Leventhal, [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5731&context=penn_law_review Environmental Decisionmaking and the Role of the Courts], 122 U. Pa. L. Rev. 509 (1974).<br />
*Daniel R. Mandelker, ''NEPA Law and Litigation'' (Clark Boardman Callaghan, 2d ed. 2014).<br />
*Thomas O. McGarity, ''The Courts, the Agencies and NEPA Threshold Issues'', 55 Tex. L. Rev. 801 (1977).<br />
*Thomas O. McGarity, [https://www.acus.gov/sites/default/files/documents/1985-02%20Pt.1%20The%20Role%20of%20Regulatory%20Analysis%20in%20Regulatory%20Decisionmaking.pdf The Role of Regulatory Analysis in Regulatory Decisionmaking] (May 1985) (report to ACUS).<br />
*Arthur W. Murphy, [https://www.acus.gov/sites/default/files/documents/Q%201973-06%20MURPHY.A%20Envir%20Issues%20in%20Licensing%203%20ACUS%20363%20xr%20U4.pdf The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?] (1975) (report to ACUS).<br />
*Gregory L. Ogden, [https://www.acus.gov/sites/default/files/documents/1984-01%20Public%20Regulation%20of%20Siting%20of%20Industrial%20Development%20Projects.pdf Report on Public Regulation of Siting of Industrial Development Projects] (July 1984) (report to ACUS).<br />
*Mark A. Pridgeon et al., ''State Environmental Policy Acts: A Survey of Recent Developments'', 2 Harv. Envtl. L. Rev. 419 (1978).<br />
*Mark Reeve, Comment, ''Scientific Uncertainty and the National Environmental Policy Act—The Council on Environmental Quality’s Regulation 40 CFR section 1502.22'', 60 Wash. L. Rev. 101 (1984).<br />
*Arnold W. Reitze, Jr., [https://scholarship.law.wm.edu/wmelpr/vol43/iss1/6/ Dealing With Climate Change Under the National Environmental Policy Act, Climate Change--Laws, regulations and rules, Environmental Impact Statements, Greenhouse Gases], 43 Wm. & Mary Envtl. L. & Pol'y Rev. 173 (2018).<br />
*William Rodgers, Jr., ''Environmental Law, Chapter 9'' (West Publ’g, 2d ed. 1994).<br />
*John Ruple, Mark Capone, [https://law.lclark.edu/live/files/23293-46-4ruplecaponepdf NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning and NEPA in the Mountain West], 46 Envtl. L. 953 (2016).<br />
*Courtney A. Schultz, [https://core.ac.uk/download/pdf/36686883.pdf History of the Cumulative Effects Analysis Requirement Under NEPA and Its Interpretation in U.S. Forest Service Case Law], 27 J. Envtl. L. & Litig. 125 (2012).<br />
*Helen Leanne Seassio, ''Legislative and Executive Efforts to Modernize NEPA and Create Efficiencies in Environmental Review'', 45 Tex. Envtl. L.J. 317 (2015).<br />
*Serge Taylor, ''Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform'' (Stan. U. Press 1984).<br />
*James T.B. Tripp & Nathan G. Alley, ''Streamlining NEPA’s Environmental Review Process: Suggestions for Agency Reform'', 12 N.Y.U. Envtl. L.J. 74 (2003).<br />
*Charles F. Weiss, Note, ''Federal Agency Treatment of Uncertainty in Environmental Impact Statements Under the CEQ’s Amended NEPA Regulation § 1502.22: Worst Case Analysis or Risk Threshold?'', 86 Mich. L. Rev. 777 (1988).<br />
*N.C. Yost, ''The Governance of Environmental Affairs—Toward Consensus'' (Aspen Inst. for Humanistic Studies, 1982).<br />
</div><br />
<br />
===Agency Regulations===<br />
Federal agencies have promulgated their own individualized regulations within the parameters set by the CEQ regulations. <br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*'''Advisory Council on Historic Preservation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt36.3.805&rgn=div5 36 C.F.R. Part 805])<br />
*'''Agency for International Development''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt22.1.216&rgn=div5 22 C.F.R. Part 216])<br />
*'''Agricultural Research Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt7.6.520&rgn=div5 7 C.F.R. Part 520])<br />
*'''Agriculture Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt7.1.1b&rgn=div5 7 C.F.R. Part 1b])<br />
*'''Air Force Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt32.6.989&rgn=div5 32 C.F.R. Part 989])<br />
*'''Animal and Plant Health Inspection Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt7.5.372&rgn=div5 7 C.F.R. Part 372])<br />
*'''Army Corps of Engineers''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt33.3.230&rgn=div5 33 C.F.R. Part 230])<br />
*'''Army Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt32.4.651&rgn=div5 32 C.F.R. Part 651])<br />
*'''Bureau of Land Management''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt43.2.1600&rgn=div5 43 C.F.R. Part 1600])<br />
*'''Committee for Purchase from People Who Are Blind or Severely Disabled''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt41.1.51_67&rgn=div5 41 C.F.R. Part 51–7])<br />
*'''Community Development Financial Institutions Fund''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt12.10.1815&rgn=div5 12 C.F.R. Part 1815])<br />
*'''Consumer Product Safety Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt16.2.1021&rgn=div5 16 C.F.R. Part 1021])<br />
*'''Denali Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt45.3.900&rgn=div5 45 C.F.R. Part 900])<br />
*'''Energy Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt10.4.1021&rgn=div5 10 C.F.R. Part 1021])<br />
*'''Environmental Protection Agency''' <br />
**Procedures for Implementing NEPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.1.6&rgn=div5 40 C.F.R. Part 6])<br />
**Environmental Impact Assessment of Nongovernmental Activities in Antarctica ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.1.8&rgn=div5 40 C.F.R. Part 8])<br />
**Criteria for the Evaluation of Permit Applications for Ocean Dumping of Materials ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.27.227&rgn=div5 40 C.F.R. Part 227])<br />
*'''Environmental Quality Council''' <br />
**Purpose and Policy ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1500&rgn=div5 40 C.F.R. Part 1500])<br />
**NEPA and Agency Planning ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1501&rgn=div5 40 C.F.R. Part 1501])<br />
**Environmental Impact Statement ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1502&rgn=div5 40 C.F.R. Part 1502])<br />
**Commenting on Environmental Impact Statements ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1503&rgn=div5 40 C.F.R. Part 1503])<br />
**Predecision Referrals to the Council of Proposed Federal Actions Determined to Be Environmentally Unsatisfactory ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1504&rgn=div5 40 C.F.R. Part 1504])<br />
**NEPA and Agency Decisionmaking ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1505&rgn=div5 40 C.F.R. Part 1505])<br />
**Other Requirements of NEPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1506&rgn=div5 40 C.F.R. Part 1506])<br />
**Agency Compliance ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1507&rgn=div5 40 C.F.R. Part 1507])<br />
**Definitions ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1508&rgn=div5 40 C.F.R. Part 1508])<br />
**Office of Environmental Quality Management Fund ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1518&rgn=div5 40 C.F.R. Part 1518])<br />
*'''Export-Import Bank''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt12.5.408&rgn=div5 12 C.F.R. Part 408])<br />
*'''Farm Service Agency''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.7.799&rgn=div5 7 C.F.R. Part 799])<br />
*'''Federal Communications Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=sp47.1.1.i&rgn=div6 47 C.F.R. Part 1, Subpt. I])<br />
*'''Federal Energy Regulatory Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt18.1.380&rgn=div5 18 C.F.R. Part 380])<br />
*'''Federal Highway Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt23.1.771&rgn=div5 23 C.F.R. Part 771])<br />
*'''Federal Maritime Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt46.9.504&rgn=div5 46 C.F.R. Part 504])<br />
*'''Federal Trade Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=sp16.1.1.i&rgn=div6 16 C.F.R. Part 1, Subpt. I])<br />
*'''Federal Transit Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt23.1.771&rgn=div5 23 C.F.R. Part 771])<br />
*'''Food and Drug Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt21.1.25&rgn=div5 21 C.F.R. Part 25])<br />
*'''Forest Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt36.2.220&rgn=div5 36 C.F.R. Part 220])<br />
*'''Housing and Urban Development Department'''<br />
**Protection and Enhancement of Environmental Quality ([https://www.ecfr.gov/cgi-bin/text-idx?SID=d883c54cce1263fa07b72070e3ac9b34&mc=true&tpl=/ecfrbrowse/Title24/24cfr50_main_02.tpl 24 C.F.R. Part 50])<br />
**Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities ([https://www.ecfr.gov/cgi-bin/text-idx?SID=d883c54cce1263fa07b72070e3ac9b34&mc=true&tpl=/ecfrbrowse/Title24/24cfr58_main_02.tpl 24 C.F.R. Part 58])<br />
*'''Interior Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt43.1.46&rgn=div5 43 C.F.R. Part 46])<br />
*'''Justice Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt28.2.61&rgn=div5 28 C.F.R. Part 61])<br />
*'''Labor Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt29.1.11&rgn=div5 29 C.F.R. Part 11])<br />
*'''Marine Mammal Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt50.11.530&rgn=div5 50 C.F.R. Part 530])<br />
*'''National Aeronautics and Space Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt14.5.1216&rgn=div5 14 C.F.R. Part 1216])<br />
*'''National Highway Traffic Safety Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt49.6.520&rgn=div5 49 C.F.R. Part 520])<br />
*'''National Institute of Food and Agriculture''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.15.3407&rgn=div5 7 C.F.R. 3407])<br />
*'''National Oceanic and Atmospheric Administration, National Estuarine Research Reserve System''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=se15.3.921_113&rgn=div8 15 C.F.R. § 921.13])<br />
*'''National Science Foundation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt45.3.640&rgn=div5 45 C.F.R. Part 640])<br />
*'''Natural Resources Conservation Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.6.650&rgn=div5 7 C.F.R. Part 650])<br />
*'''Navy Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt32.5.775&rgn=div5 32 C.F.R. Part 775])<br />
*'''Nuclear Regulatory Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt10.2.51&rgn=div5 10 C.F.R. Part 51])<br />
*'''Pennsylvania Avenue Development Corporation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt36.3.907&rgn=div5 36 C.F.R. Part 907])<br />
*'''Postal Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt39.1.775&rgn=div5 39 C.F.R. Part 775])<br />
*'''Presidio Trust''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt36.3.1010&rgn=div5 36 C.F.R. Part 1010])<br />
*'''Securities and Exchange Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=sp17.3.200.k&rgn=div6 17 C.F.R. Part 200, Subpt. K])<br />
*'''State Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt22.1.161&rgn=div5 22 C.F.R. Part 161])<br />
*'''Surface Transportation Board''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt49.8.1105&rgn=div5 49 C.F.R. Part 1105])<br />
*'''USDA Rural Development''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.14.1970&rgn=div5 7 C.F.R. Part 1970])<br />
*'''Utah Reclamation Mitigation and Conservation Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt43.2.10010&rgn=div5 43 C.F.R. Part 10010])<br />
*'''Veterans Affairs Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt38.2.26&rgn=div5 38 C.F.R. Part 26])<br />
*'''Water Resources Council''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt18.2.707&rgn=div5 18 C.F.R. Part 707])<br />
</div><br />
<br />
==Statutory Provisions==<br />
National Environmental Policy Act<br />
<br />
Title 42 U.S. Code<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4321&num=0&edition=prelim § 4321. Congressional declaration of purpose.]<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter55/subchapter1&edition=prelim Subchapter I—Policies and Goals]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4331&num=0&edition=prelim § 4331. Congressional declaration of national environmental policy]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4332&num=0&edition=prelim § 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination efforts]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4333&num=0&edition=prelim § 4333. Conformity of administrative procedures to national environmental policy]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4334&num=0&edition=prelim § 4334. Other statutory obligations of agencies]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4335&num=0&edition=prelim § 4335. Efforts supplemental to existing authorizations]<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter55/subchapter2&edition=prelim Subchapter II—Council on Environmental Quality]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4342&num=0&edition=prelim § 4342. Establishment, membership; Chairman; appointments]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4343&num=0&edition=prelim § 4343. Employment of personnel, experts and consultants]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4344&num=0&edition=prelim § 4344. Duties and functions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4345&num=0&edition=prelim § 4345. Consultation with Citizens’ Advisory Committee on Environmental Quality and other representatives]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=National_Environmental_Policy_Act&diff=1665National Environmental Policy Act2023-08-15T20:10:25Z<p>MGluth: </p>
<hr />
<div>[https://www.fsa.usda.gov/Internet/FSA_File/nepa_statute.pdf 42 U.S.C. §§ 4321–4347] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-83/pdf/STATUTE-83-Pg852.pdf Pub. L. No. 91-190], 83 Stat. 852, Jan. 1, 1970. Amended by [http://uscode.house.gov/statutes/pl/94/52.pdf Pub. L. No. 94-52], § 2, 89 Stat. 258, July 3, 1975; by [http://uscode.house.gov/statutes/pl/94/83.pdf Pub. L. No. 94-83], 89 Stat. 424, Aug. 9, 1975; by [https://www.govinfo.gov/content/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf Pub. L. No. 112-141], Div. A, Title I, Subtitle C, § 1319, 126 Stat. 551, July 6, 2012.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/ceq/ Council on Environmental Quality]<br />
<br />
[https://ceq.doe.gov/ NEPA.gov] <br />
<br />
==Overview==<br />
<br />
The National Environmental Policy Act (NEPA) was the first federal statute to use the “impact statement” approach in federal regulation. Its purpose is to require federal agencies to analyze and consider the environmental impact of their actions in an open and public process. NEPA also created the Council on Environmental Quality (CEQ) within the Executive Office of the President.<br />
<br />
===Environmental Impact Statements=== <br />
<br />
The core of NEPA is found in section 102(2)(C) (codified at 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4332&num=0&edition=prelim § 4332(2)(C)]), which creates the environmental impact statement (EIS) requirement. The provision requires that: <blockquote>all agencies of the Federal Government . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.</blockquote>The provision requires the responsible federal official to consult with and seek comments from other affected agencies. Copies of the statements and relevant comments must be made public and must accompany the proposal through the agency review process.<br />
<br />
Despite language in NEPA that might be construed otherwise, the Supreme Court has held that NEPA does not impose any substantive requirement on agencies to favor the environment in the agency’s decisionmaking. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep444/usrep444223/usrep444223.pdf Strycker’s Bay Neighborhood Council, Inc. v. Karlen], 444 U.S. 223 (1980). Notwithstanding the lack of substantive requirements, NEPA has been the source of an extremely large number of challenges to agency action, arguing either that the agency failed to prepare an EIS when NEPA required it or that the EIS that the agency prepared was inadequate. Even after 45 years, agencies frequently lose these suits, with the result that the agency action is enjoined until the agency fully complies with NEPA’s procedural requirements.<br />
<br />
===Council on Environmental Quality Role===<br />
<br />
The CEQ, created by title 11 of NEPA, is the legal overseer of NEPA and was active in shaping NEPA law in its early years. Until 2000, it prepared extensive annual environmental quality reports pursuant to 42 U.S.C. § 4341, which was effectively repealed in that year. CEQ took the lead in developing appropriate procedures for EIS preparation. In Executive Order 11514, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO11514envtlquality.pdf Protection and Enhancement of Environmental Quality], issued shortly after NEPA’s passage, President Nixon gave CEQ the authority to issue guidelines to agencies for the preparation of EISs. The CEQ’s original guidelines were nonbinding but were relied upon by most federal agencies when promulgating their own procedures. [https://www.govinfo.gov/content/pkg/FR-1971-04-23/pdf/FR-1971-04-23.pdf#page=82 Statements on Proposed Federal Actions Affecting the Environment], 36 Fed. Reg. 7724 (Apr. 23, 1971). In 1977, President Carter significantly expanded CEQ’s authority by giving it the power to issue binding regulations in Executive Order 11991, ''Relating to Protection and Enhancement of Environmental Quality'', (May 24, 1977). These regulations are codified at [https://www.ecfr.gov/cgi-bin/text-idx?SID=c38c7cc340821485cfc86a6bed118949&mc=true&tpl=/ecfrbrowse/Title40/40chapterV.tpl 40 C.F.R Parts 1500–1508]. ''See'' Implementation of Procedural Provisions, 43 Fed. Reg. 55978 (Nov. 28, 1978). The Supreme Court has since treated these regulations as deserving substantial deference. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep442/usrep442347/usrep442347.pdf Andrus v. Sierra Club], 442 U.S. 347 (1979).<br />
<br />
The CEQ regulations cover many of the procedural issues that have emerged in the extensive litigation over the meaning of NEPA’s terms. The regulations, all in Title 40 of the Code of Federal Regulations, provide comprehensive guidance on what constitutes a “major federal action” requiring an EIS, the preparation of draft, supplemental and final statements, page limits, recommended format and content ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1502&rgn=div5 Part 1502]); the comment process ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1503&rgn=div5 Part 1503]); predecision referral of interagency disputes to CEQ ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1504&rgn=div5 Part 1504]); integration with agency decisionmaking ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1505&rgn=div5 Part 1505]); elimination of duplication with state and local requirements and procedures for filing with EPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1506&rgn=div5 Part 1506]); and agency compliance ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c64f34d636120c3d7582b76398ac7103&mc=true&node=pt40.37.1507&rgn=div5 Part 1507]).<br />
<br />
In addition to the regulations, CEQ also provided continuing guidance to agencies on implementation of NEPA. For example, in 1981 it published the [https://www.energy.gov/nepa/articles/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act Memorandum to Agencies Containing Answers to 40 Most Asked Questions on NEPA Regulations]. In April 1981, it issued a [https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping] on the subject of “scoping guidance.” In 1983, after a solicitation of comments on the existing regulations and a two-year review process, CEQ published a supplemental memorandum giving further guidance to agencies. In 1993, it issued a guidance memorandum on the subject of pollution prevention and NEPA. In 1997, it issued two guidance memoranda, one on cumulative effects analysis under NEPA and the other on considering environmental justice under NEPA. In 2002, CEQ established a NEPA Task Force to undertake a thorough review of NEPA implementation. The Task Force’s report, [https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf Modernizing NEPA Implementation], was issued a year later. It contained recommendations designed to modernize the implementation of NEPA and make the NEPA process more effective and efficient.<br />
<br />
More recently, CEQ has provided guidance on the use of categorical exclusions (in which agencies may exempt certain actions from NEPA review) and on the use of mitigating measures to avoid a finding of significant impact on the environment. In addition, CEQ has issued guidance to assist agencies in analyzing greenhouse gas emissions and climate change effects of their proposed actions under NEPA. Most recently, CEQ issued interim guidance in January 2023 stating that agencies should consider (1) the potential effects of a proposed action on climate change, including by assessing both greenhouse gas emissions and reductions from the proposed action, and (2) the effects of climate change on a proposed action and its environmental impacts. <br />
<br />
The CEQ also compiles [https://ceq.doe.gov/get-involved/eis_filings.html annual data on the number of environmental impact statements] filed by agencies and the trends in NEPA litigation.<br />
<br />
Originally, under 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4342&num=0&edition=prelim § 4342], CEQ consisted of three members appointed by the President with the advice and consent of the Senate, one of whom the President designated as chairman. However, beginning in 1997, Congress inserted a provision in annual appropriations acts stating that, notwithstanding this section of NEPA, the CEQ would consist of one member appointed by the President with the advice and consent of the Senate, who should serve as chairman.<br />
<br />
==Legislative History==<br />
<br />
Senators Henry M. Jackson and Ted Stevens introduced S. 1075, the original NEPA legislation, on February 18, 1969. It authorized the Secretary of the Interior to conduct a research program on environmental problems and created the Council on Environmental Quality. A hearing was held April 16, 1969 during which witnesses (primarily Lynton Caldwell, professor of political science at Indiana University) urged the creation of an “action-forcing” mechanism, which later became the environmental impact statement. S. 1075 was reported with amendments and an accompanying report of the Senate Committee on Interior and Insular Affairs on July 9, 1969. The following day the bill passed the Senate unanimously.<br />
<br />
A House of Representatives’ subcommittee of the Committee on Merchant Marine and Fisheries held a series of hearings during May and June 1969 on various related bills. On July 1, 1969, Representative John Dingell and others introduced H.R. 12549, which became the leading House bill. It, however, lacked the impact statement requirement. On July 11, 1969, the full Committee reported H.R. 12549. A supplemental report was filed on July 19. On September 23, 1969, the House passed the Senate bill, but only after substituting the text of the House bill in place of the Senate’s language. It then requested a conference.<br />
<br />
On October 8, 1969, after listening to Senator Jackson address the differences between the two versions, the Senate voted to insist on its version and appointed conferees. On December 17, 1969, the conference committee reported out a substitute version of S. 1075. This compromise version accepted the Senate’s environmental impact statement requirement, adding the language “to the fullest extent possible.” That same day, the Senate approved the Conference Report. The House followed suit on December 23. The bill became [https://www.govinfo.gov/content/pkg/STATUTE-83/pdf/STATUTE-83-Pg852.pdf Pub. L. No. 91-190] on January 1, 1970.<br />
<br />
Section 201 of NEPA, 42 U.S.C. § 4341, which required the President to transmit an annual report to Congress relating to the environment, was eliminated by the Federal Reports Elimination and Sunset Act of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ66/pdf/PLAW-104publ66.pdf Pub. L. No. 104-66]).<br />
<br />
Section 202 of NEPA, 42 U.S.C. § 4342, was effectively amended, although its language was not changed, by a series of annual riders to appropriation acts beginning in 1997 and culminating in a permanent rider to an appropriation act in 2005 that states: “That notwithstanding section 202 of the National Environmental Policy Act of 1970, the Council shall consist of one member, appointed by the President, by and with the advice and consent of the Senate, serving as chairman and exercising all powers, functions, and duties of the Council.” ''See'' ([https://www.congress.gov/109/plaws/publ54/PLAW-109publ54.pdf Pub. L. No. 109-54], Title III). This was apparently the consequence of President Clinton’s failure (or refusal) to appoint more than one member of the Council. ''See'' [https://www.congress.gov/104/crpt/hrpt628/CRPT-104hrpt628.pdf H.R. Rep. No. 104-628] (1996).<br />
<br />
Section 4332a of Title 42 was added to NEPA by Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) ([https://www.govinfo.gov/content/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf Pub. L. No. 112-141]), a massive reauthorization of the federal highway program. Although contained in the federal highway authorization act in order to expedite environmental planning for new and expanded highways, the new provision applies generally to environmental planning.<br />
<br />
===Source Note===<br />
<br />
There is an extensive literature of commentary, criticism, and analysis of NEPA and its implementation. Of course, the most authoritative pronouncements emanate from the [https://ceq.doe.gov/ Council on Environmental Quality]<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://ceq.doe.gov/docs/laws-regulations/Congress-White-Paper.pdf Congressional White Paper on a National Policy for the Environment] submitted to the United States Congress under the Auspices of the S. Comm. on Interior and Insular Affairs and the H. Comm. on Science and Astronautics, 90th Cong. (1968).<br />
*''Joint House-Senate Colloquium to Discuss a National Policy for the Environment'', Hearing Before the S. Comm. on Science and Astronautics, 90th Cong. (1968).<br />
*''Report of Managing the Environment'', Staff of Subcomm. on Science, Research, and Dev. of the H. Comm. on Science and Astronautics, 90th Cong. (1968).<br />
*Conference Report on S. 1075, H.R. Rep. No. 91-765 (1969).<br />
*Report to Accompany S. 1075, S. Rep. No. 91-296 (1969).<br />
*Report to Accompany H.R. 12549, [https://coast.noaa.gov/data/Documents/OceanLawSearch/House%20Report%20No.%2091-378%20Part%201.pdf H.R. Rep. No. 91-378] (1969).<br />
*''Hearings on the Administration of the National Environmental Policy Act'', Before the Subcomm. on Fisheries and Wildlife Conservation of the H. Comm. on Merchant Marine and Fisheries, 91st Cong. (1971) (2 parts).<br />
*''Hearings on National Environmental Policy Act Oversight'', Before the Subcomm. on Fisheries and Wildlife Conservation and the Env’t of the H. Comm. on Merchant Marine and Fisheries, 94th Cong. (1976).<br />
*Staff of Senate Comm. on Interior and Insular Affairs, ''Council on Environmental Quality: Oversight Report'', 94th Cong., 2d Sess. (1976).<br />
*''Hearings on CEQ Implementation of the National Environmental Policy Act'', Before the Subcomm. on Fisheries and Wildlife Conservation and the Env’t, H. Comm. on Merchant Marine and Fisheries, 95th Cong. (1978).<br />
*''Hearings on Implementation of the National Environmental Policy Act by the Council on Environmental Quality'', Before the Subcomm. on Toxic Substances and Envtl. Oversight of the S. Comm. on Env’t and Public Works, 97th Cong. (1982).<br />
*''Hearings on Compliance with the National Environmental Policy Act of 1969'', Before the Subcomm. on Hazardous Wastes and Toxic Substances of the S. Comm. on Environmental and Public Works, 100th Cong. (1987-1988).<br />
*''Hearing on the Application of the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations of the S. Comm. on Energy and Natural Resources, 104th Cong. (1995).<br />
*''Hearing on the Efforts by the Federal Land Management Agencies to Strengthen the National Environmental Policy Act'', Before the Subcomm. on Oversight and Investigations, S. Comm. on Energy and Natural Resources, 104th Cong. (1996).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-105hhrg47866/pdf/CHRG-105hhrg47866.pdf Problems and Issues with the National Environmental Policy Act of 1969], Oversight Hearing Before the H. Comm. on Resources Before the H. Comm. on Res., 105th Cong. (1998).<br />
*MAP-21 Conference Report to Accompany H.R. 4348, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt557/pdf/CRPT-112hrpt557.pdf H.R. Rep. No. 112-557] (2012).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg73228/pdf/CHRG-112hhrg73228.pdf The Council on Environmental Quality’s FY 2013 Funding Request and the Effects on NEPA, National Ocean Policy and Other Federal Environmental Policy Initiatives], Hearing Before the H. Comm. on Nat. Res., 112th Cong. (2012).<br />
*''[https://www.govinfo.gov/content/pkg/CHRG-113hhrg80524/pdf/CHRG-113hhrg80524.pdf Hearing on H.R. 250, H.R. 382, H.R. 432, H.R. 758, H.R. 1512, H.R. 1434, H.R. 1439, H.R. 1459, and H.R. 885]'', Hearing Before the Subcomm. on Pub. Lands and Envtl. Regulation of the H. Comm. on Nat. Res., 113th Cong. (2013).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-113hhrg82951/pdf/CHRG-113hhrg82951.pdf The Department of the Interior’s Proposal to Use a Categorical Exclusion Under the National Environmental Policy Act (NEPA) for Adding Species to the Lacey Act’s List of Injurious Wildlife], Hearing Before the Subcomm. on Fisheries, Wildlife, Oceans and Insular Affairs of the H. Comm. on Nat. Res., 113th Cong. (2013).<br />
*[https://www.govinfo.gov/content/pkg/CRPT-113hrpt385/pdf/CRPT-113hrpt385.pdf H.R. Rep. No. 113-385] (2014).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg27722/pdf/CHRG-115hhrg27722.pdf Modernizing NEPA for the 21st Century], Hearing Before the H. Comm. on Nat. Res., 115th Cong. (2017) ([https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=403418 video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-115hhrg29883/pdf/CHRG-115hhrg29883.pdf The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare], Hearing Before the H. Comm. on Nat. Res., 115th Cong. (2018) ([https://naturalresources.house.gov/calendar/eventsingle.aspx?EventID=404527 video]).<br />
</div><br />
<br />
===Executive Orders and OMB/OIRA Documents===<br />
<br />
*Executive Order 11514, [https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-EO11514envtlquality.pdf Protection and Enhancement of Environmental Quality], 35 Fed. Reg. 4247 (Mar. 5, 1970).<br />
*Executive Order 11991, ''Relating to Protection and Enhancement of Environmental Quality'', 42 Fed. Reg. 26967 (May 24, 1977).<br />
*Executive Order 12852, [https://www.govinfo.gov/content/pkg/WCPD-1993-07-05/pdf/WCPD-1993-07-05-Pg1201.pdf President’s Council on Sustainable Development], 58 Fed. Reg. 39107 (July 19, 1993).<br />
*Executive Order 12898, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations], 60 Fed. Reg. 6381 (Feb. 11, 1994).<br />
*Executive Order 13514, [https://www.govinfo.gov/content/pkg/DCPD-200900783/pdf/DCPD-200900783.pdf Federal Leadership in Environmental, Energy, and Economic Performance], 74 Fed. Reg. 52117 (Oct. 8, 2009).<br />
*Executive Order 13807, [https://www.govinfo.gov/content/pkg/FR-2017-08-24/pdf/2017-18134.pdf Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects], 82 Fed. Reg. 40463 (Aug. 15, 2017).<br />
*M-18-13, [https://www.whitehouse.gov/wp-content/uploads/2018/04/M-18-13.pdf One Federal Decision Framework for the Environmental Review and Authorization Process for Major Infrastructure Projects Under Executive Order 13807] (Mar. 20, 2018).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807] (Apr. 9, 2018).<br />
*M-21-23, [https://www.whitehouse.gov/wp-content/uploads/2021/04/M-21-23.pdf Revocation of OMB Memorandum M-21-01, "Budget and Management Guidance on Updates to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act"] (April 26, 2021).<br />
<br />
===ACUS Recommendations===<br />
<br />
*73-6, [https://www.acus.gov/sites/default/files/documents/73-6-ss.pdf Procedures for Resolution of Environmental Issues in Licensing Proceedings]<br />
*84-1, [https://www.acus.gov/sites/default/files/documents/84-1_0.pdf Public Regulation of Siting of Industrial Development Projects]<br />
*85-2, [https://www.acus.gov/sites/default/files/documents/85-2.pdf Agency Procedures for Performing Regulatory Analysis of Rules]<br />
<br />
===Council on Environmental Quality Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://ceq.doe.gov/ceq-reports/annual_environmental_quality_reports.html Environmental Quality Annual Reports, 1970-1997].<br />
*''Environmental Impact Statements: An Analysis of Six Years’ Experience by Seventy Federal Agencies'' (1976).<br />
*[https://www.energy.gov/sites/prod/files/G-CEQ-40Questions.pdf Memorandum to Agencies: Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations] (Mar. 23, 1981)<br />
*[https://www.energy.gov/sites/prod/files/CEQ_Scoping_Guidance.pdf Memorandum for General Counsels, NEPA Liaisons and Participants in Scoping] (Apr. 30, 1981).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-GuidanceRegulations.pdf Guidance Regarding NEPA Regulations], 48 Fed. Reg. 34263–68 (July 28, 1983).<br />
<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PollutionPreventionNEPA.pdf Memorandum to Heads of Departments and Agencies Regarding Pollution Prevention and the National Environmental Policy Act], 58 Fed. Reg. 6478–81 (Jan. 29, 1993).<br />
*[https://ceq.doe.gov/docs/ceq-publications/Incorporating_Biodiversity_1993.pdf Incorporating Biodiversity Considerations into Environmental Impact Analysis Under the National Environmental Policy Act] (1993).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-ConsidCumulEffects.pdf Considering Cumulative Effects Under the National Environmental Policy Act] (1997).<br />
*[https://www.energy.gov/sites/prod/files/2014/08/f18/CEQTransboundaryGuidance_07_01_97.pdf Guidance on NEPA Analyses for Transboundary Impacts] (1997).<br />
*[https://www.epa.gov/sites/production/files/2015-02/documents/ej_guidance_nepa_ceq1297.pdf Environmental Justice Guidance Under the National Environmental Policy Act] (1997).<br />
*[https://www.energy.gov/sites/prod/files/G-CEQ-DesigNonfedCoopAgencies.pdf Memorandum for Heads of Federal Agencies: Designation of Non-Federal Agencies to be Cooperating Agencies in Implementing the Procedural Requirements of NEPA] (July 28, 1999).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CoopAgenciesImplem.pdf Memorandum for Heads of Federal Agencies: Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (Jan. 30, 2002).<br />
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/regs/connaughton.pdf Memorandum to Heads of Federal Agencies: Reporting Cooperating Agencies in Implementing the Procedural Requirements of the National Environmental Policy Act] (Dec. 23, 2004).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf Guidance on the Consideration of Past Actions in Cumulative Effects Analysis] (June 24, 2005).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-EmergencyGuidance.pdf Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA] (Sept. 8, 2005).<br />
*[https://www.energy.gov/sites/prod/files/2014/04/f15/OMB%20CEQ%20Joint%20Statement_1.pdf Memorandum on Environmental Conflict Resolution] (Nov. 28, 2005).<br />
*[https://ceq.doe.gov/docs/ceq-publications/NEPA_EMS_Guide_final_Apr2007.pdf Aligning National Environmental Policy Act Process with Environmental Management Systems] (2007).<br />
*[https://www.energy.gov/sites/prod/files/CEQ_Collaboration_in_NEPA_10-2007.pdf Collaboration in NEPA: A Handbook for NEPA Practitioners] (2007).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CitizensGuide.pdf A Citizen’s Guide to the NEPA: Having Your Voice Heard] (2007).<br />
*[https://www.nrc.gov/docs/ML1006/ML100601337.pdf Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions] (Feb. 18, 2010).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-Emergencies.pdf Memorandum for Heads of Federal Departments and Agencies: Emergencies and NEPA] (May 12, 2010).<br />
*[https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CatEx_guidance.pdf Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act] (Dec. 6, 2010).<br />
*[https://www.energy.gov/sites/prod/files/2017/06/f35/NEPA-CEQ_Mitigation_and_Monitoring_Guidance_14Jan2011.pdf Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact] (Jan. 14, 2011).<br />
*[https://www.energy.gov/sites/prod/files/NEPA_CEQGuidance_EfficientReviewsUnderNEPA_03_12_12.pdf Final Guidance on Improving the Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act] (Mar. 12, 2012).<br />
*[https://www.energy.gov/sites/prod/files/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907-2012.pdf Joint Memorandum on Environmental Collaboration and Conflict Resolution] (Sept. 7, 2012).<br />
*[https://www.energy.gov/sites/prod/files/G-CEQ-NEPA_NHPA_Section_106_Handbook_Mar2013.pdf NEPA and NHPA: A Handbook for Integrating NEPA and Section 106] (2013).<br />
*[https://www.energy.gov/sites/prod/files/2014/03/f9/NEPA_CEQA_FinalHandbook_February2014_0.pdf NEPA and CEQA: Integrating State and Federal Environmental Reviews] (2014).<br />
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Effective_Use_of_Programmatic_NEPA_Reviews_Final_Dec2014_searchable.pdf Memorandum for Heads of Departments and Agencies: Guidance on Effective Use of Programmatic NEPA Reviews] (Dec. 18, 2014).<br />
*[https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Emergencies_and_NEPA.pdf Emergencies and the National Environmental Policy Act] (2016).<br />
*[https://www.govinfo.gov/content/pkg/FR-2017-09-14/pdf/2017-19425.pdf Initial List of Actions to Enhance and Modernize the Federal Environmental Review and Authorization Process], 82 Fed. Reg. 43226 (Sept. 17, 2017).<br />
*[https://ceq.doe.gov/guidance/ceq_guidance_nepa-ghg.html Guidance on Consideration of Greenhouse Gases] (2019).<br />
*[https://ceq.doe.gov/docs/nepa-practice/emergencies-and-nepa-guidance-2020.pdf Emergencies and NEPA Guidance] (2020).<br />
*[https://www.federalregister.gov/documents/2022/04/20/2022-08288/national-environmental-policy-act-implementing-regulations-revisions National Environmental Policy Act Implementing Regulations] (2022).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Frederick R. Anderson, ''NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act'' (Res. for the Future, Inc.; Baltimore: Johns Hopkins Univ. Press, 1973).<br />
*Richard R. L. Andrews et al., ''Substantive Guidance for Environmental Impact Assessment: An Exploratory Study'' (Inst. for Ecology, Butler Univ., 1977).<br />
*Eugene Bardach & Lucian Pugliaresi, [https://www.nationalaffairs.com/storage/app/uploads/public/58e/1a4/c4c/58e1a4c4c619d491120331.pdf The Environmental Impact Statement vs. The Real World], 49 Pub. Int. 22 (1977).<br />
*Richard K. Berg & Roger C. Cramton, [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2338&context=facpub On Leading a Horse to Water: NEPA and the Federal Bureaucracy], 71 Mich. L. Rev. 511 (1973).<br />
*Michael C. Blumm & Keith Mosman, [https://digital.lib.washington.edu/dspace-law/bitstream/handle/1773.1/1190/2WJELP193.pdf?sequence=1 The Overlooked Role of the National Environmental Policy Act in Protecting the Western Environment: NEPA in the Ninth Circuit], 2 Wash. J. Envtl. L. & Pol’y 193 (2012).<br />
*Michael C. Blumm & Marla Nelson, [https://lawreview.vermontlaw.edu/wp-content/uploads/2013/02/02-Blumm.pdf Pluralism and the Environment Revisited: The Role of Comment Agencies in NEPA Litigation], 37 Vt. L. Rev. 5 (2013).<br />
*Sharon Buccino, ''NEPA under Assault: Congressional and Administrative Proposals Would Weaken Environmental Review and Public Participation'', 12 N.Y.U. Envtl. L.J. 50 (2003).<br />
*Michael Burger; Jessica Wentz, [https://scholarship.law.columbia.edu/sabin_climate_change/100/ Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review], 41 Harv. Envtl. L. Rev. 109 (2017).<br />
*L. Caldwell, ''A Study of Ways to Improve the Scientific Content and Methodology of Environmental Impact Analysis'' (Sch. of Pub. & Envtl. Affairs, Ind. Univ., 1982).<br />
*Ray Clark & Larry Canter, ''Environmental Policy and NEPA: Past, Present, and Future'' (CRC Press 1997).<br />
*Jamison E. Colburn, [http://www.columbiaenvironmentallaw.org/wp-content/uploads/sites/14/2016/07/Colburn_-_The_Risk_in_Discretion.pdf The Risk in Discretion: Substantive NEPA’s Significance], 41 Colum. J. Envtl. L. 1 (2016).<br />
*Wendy B. Davis, [https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1288&context=akronlawreview The Fox Is Guarding the Henhouse: Enhancing the Role of the EPA in FONSI Determinations Pursuant to NEPA], 39 Akron L. Rev. 35 (2006).<br />
*Holly Doremus, [https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1688&context=ealr Through Another’s Eyes: Getting the Benefit of Outside Perspectives in Environmental Review], 38 B.C. Envtl. Aff. L. Rev. 247 (2011).<br />
*Envtl. Law Inst., ''NEPA Deskbook'' (4th ed. 2014).<br />
*Arthur F. Ferguson, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3324&context=ilj The Sin of Omission: Inaction as Action Under Section 102(2)(C) of the National Environmental Policy Act of 1969], 53 Ind. L.J. 497 (1978).<br />
*Robert L. Fischman & Mark S. Squillace, ''Environmental Law—Environmental Decisionmaking: NEPA and the Endangered Species Act'' (Anderson Publ’g Co., 3d ed. 2000).<br />
*Melanie Fisher, ''The CEQ Regulations: New Stage in the Evolution of NEPA'', 3 Harv. Envtl. L. Rev. 347 (1979).<br />
*Victor B. Flatt, [https://www.law.uh.edu/eelpj/publications/6-2/02Flatt.pdf The “Worst Case” May Be the Best: Rethinking NEPA Law to Avoid Future Environmental Disasters], 6 Envt’l & Energy L & Pol’y J 25 (2011).<br />
*Valerie Fogelman, ''Guide to the National Environmental Policy Act: Interpretations, Applications, and Compliance'' (Praeger 1990).<br />
*Robert L. Glicksman, David L. Markell, William B. Buzbee, Daniel R. Mandelker & Daniel Bodansky, ''Environmental Protection: Law and Policy, Chapter IV'' (Wolters Kluwer 2011).<br />
*Craig N. Johnston, William F. Funk & Victor B. Flatt, ''Legal Protection of the Environment, Chapter 2'' (West Publ’g, 3d ed. 2010).<br />
*Bradley C. Karkkainen, ''Whither NEPA?'', 12 N.Y.U. Envtl. L.J. 333 (2004).<br />
*Bradley C. Karkkainen, ''Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance'', 102 Colum. L. Rev. 903 (2002).<br />
*Ian M. Kirschner, Comment, ''NEPA’s Forgotten Clause: Impact Statements for Legislative Proposals'', 58 B.U. L. Rev. 560 (1978).<br />
*Harold Leventhal, [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5731&context=penn_law_review Environmental Decisionmaking and the Role of the Courts], 122 U. Pa. L. Rev. 509 (1974).<br />
*Daniel R. Mandelker, ''NEPA Law and Litigation'' (Clark Boardman Callaghan, 2d ed. 2014).<br />
*Thomas O. McGarity, ''The Courts, the Agencies and NEPA Threshold Issues'', 55 Tex. L. Rev. 801 (1977).<br />
*Thomas O. McGarity, [https://www.acus.gov/sites/default/files/documents/1985-02%20Pt.1%20The%20Role%20of%20Regulatory%20Analysis%20in%20Regulatory%20Decisionmaking.pdf The Role of Regulatory Analysis in Regulatory Decisionmaking] (May 1985) (report to ACUS).<br />
*Arthur W. Murphy, [https://www.acus.gov/sites/default/files/documents/Q%201973-06%20MURPHY.A%20Envir%20Issues%20in%20Licensing%203%20ACUS%20363%20xr%20U4.pdf The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?] (1975) (report to ACUS).<br />
*Gregory L. Ogden, [https://www.acus.gov/sites/default/files/documents/1984-01%20Public%20Regulation%20of%20Siting%20of%20Industrial%20Development%20Projects.pdf Report on Public Regulation of Siting of Industrial Development Projects] (July 1984) (report to ACUS).<br />
*Mark A. Pridgeon et al., ''State Environmental Policy Acts: A Survey of Recent Developments'', 2 Harv. Envtl. L. Rev. 419 (1978).<br />
*Mark Reeve, Comment, ''Scientific Uncertainty and the National Environmental Policy Act—The Council on Environmental Quality’s Regulation 40 CFR section 1502.22'', 60 Wash. L. Rev. 101 (1984).<br />
*Arnold W. Reitze, Jr., [https://scholarship.law.wm.edu/wmelpr/vol43/iss1/6/ Dealing With Climate Change Under the National Environmental Policy Act, Climate Change--Laws, regulations and rules, Environmental Impact Statements, Greenhouse Gases], 43 Wm. & Mary Envtl. L. & Pol'y Rev. 173 (2018).<br />
*William Rodgers, Jr., ''Environmental Law, Chapter 9'' (West Publ’g, 2d ed. 1994).<br />
*John Ruple, Mark Capone, [https://law.lclark.edu/live/files/23293-46-4ruplecaponepdf NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning and NEPA in the Mountain West], 46 Envtl. L. 953 (2016).<br />
*Courtney A. Schultz, [https://core.ac.uk/download/pdf/36686883.pdf History of the Cumulative Effects Analysis Requirement Under NEPA and Its Interpretation in U.S. Forest Service Case Law], 27 J. Envtl. L. & Litig. 125 (2012).<br />
*Helen Leanne Seassio, ''Legislative and Executive Efforts to Modernize NEPA and Create Efficiencies in Environmental Review'', 45 Tex. Envtl. L.J. 317 (2015).<br />
*Serge Taylor, ''Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform'' (Stan. U. Press 1984).<br />
*James T.B. Tripp & Nathan G. Alley, ''Streamlining NEPA’s Environmental Review Process: Suggestions for Agency Reform'', 12 N.Y.U. Envtl. L.J. 74 (2003).<br />
*Charles F. Weiss, Note, ''Federal Agency Treatment of Uncertainty in Environmental Impact Statements Under the CEQ’s Amended NEPA Regulation § 1502.22: Worst Case Analysis or Risk Threshold?'', 86 Mich. L. Rev. 777 (1988).<br />
*N.C. Yost, ''The Governance of Environmental Affairs—Toward Consensus'' (Aspen Inst. for Humanistic Studies, 1982).<br />
</div><br />
<br />
===Agency Regulations===<br />
Federal agencies have promulgated their own individualized regulations within the parameters set by the CEQ regulations. <br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*'''Advisory Council on Historic Preservation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt36.3.805&rgn=div5 36 C.F.R. Part 805])<br />
*'''Agency for International Development''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt22.1.216&rgn=div5 22 C.F.R. Part 216])<br />
*'''Agricultural Research Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt7.6.520&rgn=div5 7 C.F.R. Part 520])<br />
*'''Agriculture Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt7.1.1b&rgn=div5 7 C.F.R. Part 1b])<br />
*'''Air Force Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt32.6.989&rgn=div5 32 C.F.R. Part 989])<br />
*'''Animal and Plant Health Inspection Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt7.5.372&rgn=div5 7 C.F.R. Part 372])<br />
*'''Army Corps of Engineers''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt33.3.230&rgn=div5 33 C.F.R. Part 230])<br />
*'''Army Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt32.4.651&rgn=div5 32 C.F.R. Part 651])<br />
*'''Bureau of Land Management''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt43.2.1600&rgn=div5 43 C.F.R. Part 1600])<br />
*'''Committee for Purchase from People Who Are Blind or Severely Disabled''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=fdd252187d35762f68a91394c813f73a&mc=true&node=pt41.1.51_67&rgn=div5 41 C.F.R. Part 51–7])<br />
*'''Community Development Financial Institutions Fund''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt12.10.1815&rgn=div5 12 C.F.R. Part 1815])<br />
*'''Consumer Product Safety Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt16.2.1021&rgn=div5 16 C.F.R. Part 1021])<br />
*'''Denali Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt45.3.900&rgn=div5 45 C.F.R. Part 900])<br />
*'''Energy Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt10.4.1021&rgn=div5 10 C.F.R. Part 1021])<br />
*'''Environmental Protection Agency''' <br />
**Procedures for Implementing NEPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.1.6&rgn=div5 40 C.F.R. Part 6])<br />
**Environmental Impact Assessment of Nongovernmental Activities in Antarctica ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.1.8&rgn=div5 40 C.F.R. Part 8])<br />
**Criteria for the Evaluation of Permit Applications for Ocean Dumping of Materials ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.27.227&rgn=div5 40 C.F.R. Part 227])<br />
*'''Environmental Quality Council''' <br />
**Purpose and Policy ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1500&rgn=div5 40 C.F.R. Part 1500])<br />
**NEPA and Agency Planning ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1501&rgn=div5 40 C.F.R. Part 1501])<br />
**Environmental Impact Statement ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1502&rgn=div5 40 C.F.R. Part 1502])<br />
**Commenting on Environmental Impact Statements ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1503&rgn=div5 40 C.F.R. Part 1503])<br />
**Predecision Referrals to the Council of Proposed Federal Actions Determined to Be Environmentally Unsatisfactory ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1504&rgn=div5 40 C.F.R. Part 1504])<br />
**NEPA and Agency Decisionmaking ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1505&rgn=div5 40 C.F.R. Part 1505])<br />
**Other Requirements of NEPA ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1506&rgn=div5 40 C.F.R. Part 1506])<br />
**Agency Compliance ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1507&rgn=div5 40 C.F.R. Part 1507])<br />
**Definitions ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1508&rgn=div5 40 C.F.R. Part 1508])<br />
**Office of Environmental Quality Management Fund ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt40.37.1518&rgn=div5 40 C.F.R. Part 1518])<br />
*'''Export-Import Bank''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt12.5.408&rgn=div5 12 C.F.R. Part 408])<br />
*'''Farm Service Agency''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.7.799&rgn=div5 7 C.F.R. Part 799])<br />
*'''Federal Communications Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=sp47.1.1.i&rgn=div6 47 C.F.R. Part 1, Subpt. I])<br />
*'''Federal Energy Regulatory Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt18.1.380&rgn=div5 18 C.F.R. Part 380])<br />
*'''Federal Highway Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt23.1.771&rgn=div5 23 C.F.R. Part 771])<br />
*'''Federal Maritime Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt46.9.504&rgn=div5 46 C.F.R. Part 504])<br />
*'''Federal Trade Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=sp16.1.1.i&rgn=div6 16 C.F.R. Part 1, Subpt. I])<br />
*'''Federal Transit Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt23.1.771&rgn=div5 23 C.F.R. Part 771])<br />
*'''Food and Drug Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt21.1.25&rgn=div5 21 C.F.R. Part 25])<br />
*'''Forest Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt36.2.220&rgn=div5 36 C.F.R. Part 220])<br />
*'''Housing and Urban Development Department'''<br />
**Protection and Enhancement of Environmental Quality ([https://www.ecfr.gov/cgi-bin/text-idx?SID=d883c54cce1263fa07b72070e3ac9b34&mc=true&tpl=/ecfrbrowse/Title24/24cfr50_main_02.tpl 24 C.F.R. Part 50])<br />
**Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities ([https://www.ecfr.gov/cgi-bin/text-idx?SID=d883c54cce1263fa07b72070e3ac9b34&mc=true&tpl=/ecfrbrowse/Title24/24cfr58_main_02.tpl 24 C.F.R. Part 58])<br />
*'''Interior Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt43.1.46&rgn=div5 43 C.F.R. Part 46])<br />
*'''Justice Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt28.2.61&rgn=div5 28 C.F.R. Part 61])<br />
*'''Labor Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt29.1.11&rgn=div5 29 C.F.R. Part 11])<br />
*'''Marine Mammal Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt50.11.530&rgn=div5 50 C.F.R. Part 530])<br />
*'''National Aeronautics and Space Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt14.5.1216&rgn=div5 14 C.F.R. Part 1216])<br />
*'''National Highway Traffic Safety Administration''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt49.6.520&rgn=div5 49 C.F.R. Part 520])<br />
*'''National Institute of Food and Agriculture''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.15.3407&rgn=div5 7 C.F.R. 3407])<br />
*'''National Oceanic and Atmospheric Administration, National Estuarine Research Reserve System''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=se15.3.921_113&rgn=div8 15 C.F.R. § 921.13])<br />
*'''National Science Foundation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt45.3.640&rgn=div5 45 C.F.R. Part 640])<br />
*'''Natural Resources Conservation Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.6.650&rgn=div5 7 C.F.R. Part 650])<br />
*'''Navy Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt32.5.775&rgn=div5 32 C.F.R. Part 775])<br />
*'''Nuclear Regulatory Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt10.2.51&rgn=div5 10 C.F.R. Part 51])<br />
*'''Pennsylvania Avenue Development Corporation''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt36.3.907&rgn=div5 36 C.F.R. Part 907])<br />
*'''Postal Service''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt39.1.775&rgn=div5 39 C.F.R. Part 775])<br />
*'''Presidio Trust''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt36.3.1010&rgn=div5 36 C.F.R. Part 1010])<br />
*'''Securities and Exchange Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=sp17.3.200.k&rgn=div6 17 C.F.R. Part 200, Subpt. K])<br />
*'''State Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt22.1.161&rgn=div5 22 C.F.R. Part 161])<br />
*'''Surface Transportation Board''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt49.8.1105&rgn=div5 49 C.F.R. Part 1105])<br />
*'''USDA Rural Development''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt7.14.1970&rgn=div5 7 C.F.R. Part 1970])<br />
*'''Utah Reclamation Mitigation and Conservation Commission''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt43.2.10010&rgn=div5 43 C.F.R. Part 10010])<br />
*'''Veterans Affairs Department''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt38.2.26&rgn=div5 38 C.F.R. Part 26])<br />
*'''Water Resources Council''' ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a1f884a249de6fc78f751905b883e278&mc=true&node=pt18.2.707&rgn=div5 18 C.F.R. Part 707])<br />
</div><br />
<br />
==Statutory Provisions==<br />
National Environmental Policy Act<br />
<br />
Title 42 U.S. Code<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4321&num=0&edition=prelim § 4321. Congressional declaration of purpose.]<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter55/subchapter1&edition=prelim Subchapter I—Policies and Goals]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4331&num=0&edition=prelim § 4331. Congressional declaration of national environmental policy]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4332&num=0&edition=prelim § 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination efforts]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4333&num=0&edition=prelim § 4333. Conformity of administrative procedures to national environmental policy]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4334&num=0&edition=prelim § 4334. Other statutory obligations of agencies]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4335&num=0&edition=prelim § 4335. Efforts supplemental to existing authorizations]<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter55/subchapter2&edition=prelim Subchapter II—Council on Environmental Quality]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4342&num=0&edition=prelim § 4342. Establishment, membership; Chairman; appointments]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4343&num=0&edition=prelim § 4343. Employment of personnel, experts and consultants]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4344&num=0&edition=prelim § 4344. Duties and functions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section4345&num=0&edition=prelim § 4345. Consultation with Citizens’ Advisory Committee on Environmental Quality and other representatives]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Judicial_Review_of_Agency_Action&diff=1664Judicial Review of Agency Action2023-08-15T19:22:39Z<p>MGluth: </p>
<hr />
<div>==Overview==<br />
===APA Provisions===<br />
The principal statutory authorities governing judicial review of agency action are 5 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter7&edition=prelim 701–706], which codify section 10 of the [[Administrative Procedure Act]] (APA). Sections 701–706 constitute a general restatement of the principles of judicial review embodied in many statutes and judicial decisions; however, they leave the mechanics regarding judicial review to be governed by other statutes or court rules. For a thorough discussion of cases concerning both availability and scope of judicial review, see Michael Herz, Richard Murphy, and Kathryn Watts, eds., ''A Guide to Judicial and Political Review of Federal Agencies'' 1-257 (ABA, 2d ed. 2015). For a summary of the law, see ABA Section of Admin. Law & Regulatory Practice, ''A Blackletter Statement of Federal Administrative Law'' 31–66 (2d ed. 2013).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section701&num=0&edition=prelim Section 701] embodies the basic presumption that judicial review is available as long as no statute precludes such relief or the action is not one committed by law to agency discretion. ''See, e.g.'', [https://cdn.loc.gov/service/ll/usrep/usrep387/usrep387136/usrep387136.pdf ''Abbott Labs. v. Gardner''], 387 U.S. 136, 140 (1967); [https://cdn.loc.gov/service/ll/usrep/usrep401/usrep401402/usrep401402.pdf ''Citizens to Pres. Overton Park, Inc. v. Volpe]'', 401 U.S. 402, 410 (1971); [https://cdn.loc.gov/service/ll/usrep/usrep470/usrep470821/usrep470821.pdf Heckler v. Chaney], 470 U.S. 821, 826 (1985). Preliminary or interlocutory actions are ordinarily reviewable only on review of the final agency action. ''See, e.g.'', ''Ass’n of Nat’l Advertisers, Inc. v. FTC'', 565 F.2d 237 (2d Cir. 1977). In those situations “[w]here a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject to exclusive review in the Court of Appeals.” ''See Telecomms. Research & Action Ctr. v. FCC'', 750 F.2d 70, 78–79 (D.C. Cir. 1984).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim Section 702] governs the issue of who may challenge an agency action. It sets forth the general principle that a person suffering a legal wrong or who is adversely affected or aggrieved by agency action is entitled to judicial review of that action. The phrase “legal wrong” connotes those wrongs that statutes or court decisions identify as constituting grounds for judicial review. The determination of who is “adversely affected or aggrieved” reflects judicial evolution of the law of standing; the courts make their determination based on constitutional and statutory requirements. <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section703&num=0&edition=prelim Section 703] deals with the form and venue of the judicial review proceeding. Briefly, there are three types of review proceedings:<br />
<br />
*“Statutory review”—a review proceeding specifically provided by statute for the agency action in question (e.g., a proceeding to review a rule of the Federal Trade Commission under 15 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section57a&num=0&edition=prelim 57a(e)]);<br />
*“Nonstatutory review”—a review through a suit against the agency or its officers for declaratory or injunctive relief or habeas corpus in a court of competent jurisdiction; and<br />
*A civil or criminal enforcement proceeding instituted by the government or possibly by a private party that involves the validity of agency action.<br />
<br />
Where a statutory proceeding is provided, such review is undertaken frequently, though not always, in the courts of appeals. Nonstatutory review proceedings and enforcement proceedings are almost invariably brought in the U.S. district courts. Where there is an adequate statutory review provided, a party may not seek nonstatutory review. However, review is available in an enforcement proceeding except where a prior opportunity for judicial review was adequate and expressly or impliedly exclusive. <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section704&num=0&edition=prelim Section 704] provides that “agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” The Supreme Court’s summary of the law of finality in [https://cdn.loc.gov/service/ll/usrep/usrep520/usrep520154/usrep520154.pdf ''Bennett v. Spear''], 520 U.S. 154, 177–78 (1997) is now the widely cited test:<blockquote>As a general matter, two conditions must be satisfied for an agency action to be “final”: First, the action must mark the “consummation” of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”</blockquote>For suits brought under the APA, the exhaustion-of-administrative-remedies requirement is largely subsumed within the finality requirement of § 704. Where agency action is final for purposes of § 704, nonstatutory exhaustion requirements do not preclude review. Section 704 makes clear that, unless expressly required by statute, a party seeking review of otherwise final agency action pursuant to the APA need not pursue (1) any process for agency reconsideration of its decision or (2) any intra-agency appeals (except where the agency has, by rule, required exhaustion of the appeal and provided that the agency action is inoperative during the time of the appeal). ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep509/usrep509137/usrep509137.pdf Darby v. Cisneros], 509 U.S. 137 (1993).<br />
<br />
Agency action under the APA “includes the whole or a part of any agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section551&num=0&edition=prelim 551(13)] (2012).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section705&num=0&edition=prelim Section 705] authorizes a reviewing court to postpone the effectiveness of agency action or preserve the status or rights affected by an agency’s order pending completion of judicial review proceedings. The standards for deciding requests for stays of agency action are set out in ''Virginia Petroleum Jobbers Association v. Federal Power Commission'', 259 F.2d 921 (D.C. Cir. 1958), as elaborated by the court’s decisions in ''Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc.'', 559 F.2d 841 (D.C. Cir. 1977), ''Wisconsin Gas Co. v. FERC'', 758 F.2d 669 (D.C. Cir. 1985), and ''Cuomo v. NRC'', 772 F.2d 972 (D.C. Cir. 1985). [https://supreme.justia.com/cases/federal/us/555/7/ Winter v. Natural Resources Defense Council, Inc.], 555 U.S. 7 (2008), may have rendered the prevailing “sliding-scale” test into something more akin to an independent, conjunctive factor test. At the very least, ''Winter'' stands for the proposition that a plaintiff cannot readily compensate for a deficient showing of irreparable injury with a strong showing of likelihood of success on the merits. ''See [https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv2046-43 Guttenberg v. Emery]'', 26 F. Supp. 3d 88, 93 (D.D.C. 2014) (citing, among other cases, ''[https://cases.justia.com/federal/appellate-courts/cadc/13-5203/13-5203-2014-04-04.pdf?ts=1411135608 Aamer v. Obama]'', 742 F.3d 1023 (D.C. Cir. 2014)).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section706&num=0&edition=prelim Section 706] sets forth the scope of review of agency actions. The case law on the scope of review is rich and varied and cannot easily be summed up. In general, the scope of review depends on the nature of the agency determination under challenge. Agency conclusions on questions of law are reviewed de novo. When a court reviews an agency’s construction of the statute it administers, the court is required to uphold Congress’s intent where Congress has directly spoken to the precise statutory question at issue. If the statute is silent or ambiguous with respect to the specific issue, however, the agency’s interpretation of the statute must be upheld if the agency’s construction of the statute is “permissible.” ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.], 467 U.S. 837 (1984). ''Chevron'' deference is only applicable in situations when the agency’s interpretation was made through formal proceedings carrying the force of law, such as adjudications or notice-and-comment rulemaking. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep533/usrep533218/usrep533218.pdf United States v. Mead Corp.]; [https://cdn.loc.gov/service/ll/usrep/usrep529/usrep529576/usrep529576.pdf Christensen v. Harris Cty.], 529 U.S. 576 (2000). In other informal circumstances, however, it is still proper to give some lesser deference to the agency’s interpretation. Nevertheless, the Supreme Court has said some issues are of such importance that it would be improper to assume Congress intended to delegate the decision to the agency, thereby requiring the court to determine the statutory meaning on its own without any deference to the agency. ''See, e.g.'', [https://casetext.com/case/king-v-burwell-2 King v. Burwell], 135 S. Ct. 2480, 2488–89 (2015).<br />
<br />
Agency exercises of judgment or discretion are reviewed under the “arbitrary, capricious, abuse of discretion” standard. Under this standard, an agency determination will be upheld if it is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by statute. The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made. A court is not to substitute its judgment for that of the agency. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep463/usrep463029/usrep463029.pdf Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.], 463 U.S. 29, 42–43 (1983). In applying the arbitrary-and-capricious test, the courts have reversed agency actions on the following bases: <br />
<br />
#Reliance on impermissible factors;<br />
#No reasonable relationship to statutory purposes or requirements;<br />
#Inadequate factual premises;<br />
#Unsupported by any reasoning or based on seriously flawed reasoning;<br />
#Failure to consider key aspects of the issue presented;<br />
#Unexplained inconsistency with prior actions;<br />
#Failure to consider alternative solutions;<br />
#Failure to respond to relevant arguments or comments; or<br />
#Disproportionate sanctions.<br />
<br />
''See A Guide to Judicial and Political Review of Federal Agencies'' at 181–95.<br />
<br />
Agency determinations of fact are reviewed under the “substantial evidence” test when the determination is reviewed on the record of an agency hearing required by statute. ''See'' [https://supreme.justia.com/cases/federal/us/383/607/ Consolo v. Fed. Mar. Comm’n], 383 U.S. 607, 618–21 (1966) (citing [https://cdn.loc.gov/service/ll/usrep/usrep340/usrep340474/usrep340474.pdf Universal Camera Corp. v. NLRB], 340 U.S. 474 (1951)). Otherwise, factual determinations are also subject to the arbitrary or capricious standard, except in unusual cases where the facts may be subject to trial de novo by the reviewing court. However, the courts themselves have difficulty in applying the fine distinction between the arbitrary or capricious and the substantial evidence tests. The tests converge where an agency’s determination is based on a mix of factual and judgmental conclusions, ''see, e.g.'', ''Amoco Oil Co. v. EPA'', 501 F.2d 722, 739–41 (D.C. Cir. 1974), and may be identical where an agency’s factual support is concerned. ''See'' [https://casetext.com/case/assn-of-data-processing-v-bd-of-governors Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys.], 745 F.2d 677 (D.C. Cir. 1984)).<br />
<br />
Section 706 contains a rule of harmless error. A court will not overturn an agency’s decision even if the agency committed some error unless the error was genuinely harmful or prejudicial. ''See'' Dolcin Corp. v. FTC, 219 F.2d 742 (D.C. Cir. 1954), ''cert. denied'', 348 U.S. 981 (1955).<br />
<br />
===Illustrative Statutory Provision===<br />
The Administrative Orders Review Act (28 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title28/part6/chapter158&edition=prelim 2341–2351]) is a special statutory provision governing review of the actions of several different agencies. It provides for review in the courts of appeals for final orders of the Federal Communications Commission, Federal Maritime Commission, Maritime Administration, and Surface Transportation Board, and certain final orders of the Secretaries of Agriculture, Energy, Housing and Urban Development, and Transportation. It also specifies the procedure for instituting such review proceedings. Venue of the proceedings is in the judicial circuit where the petitioner resides or has its principal office or in the Court of Appeals for the District of Columbia Circuit (28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2343&num=0&edition=prelim 2343]).<br />
<br />
The “orders” that may be reviewed under the Administrative Orders Review Act include final orders in adjudicative proceedings and orders promulgating agency rules of general applicability. ''See'' Gage v. U.S. Atomic Energy Comm’n, 479 F.2d 1214, 1218–19 (D.C. Cir. 1973); [https://cdn.loc.gov/service/ll/usrep/usrep351/usrep351192/usrep351192.pdf United States v. Storer Broad. Co.], 351 U.S. 192 (1956). However, because under 28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2344&num=0&edition=prelim 2344] a review proceeding may be initiated by “any party aggrieved by the final order,” some courts have held that a party who did not participate in the administrative proceeding resulting in the order may not seek review under the Administrative Orders Review Act. ''Gage'', 479 F.2d at 1217–18.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2344&num=0&edition=prelim Section 2344] provides that review must be sought within 60 days of the entry of the agency order about which a person complains. Failure to seek judicial review within 60 days renders a request for review untimely. ''See'' B.J. McAdams, Inc. v. Interstate Commerce Comm’n, 551 F.2d 1112 (8th Cir. 1977). This requirement can create problems with respect to persons seeking relief from a rule some time after its issuance. Where a dispute over a rule arises after its issuance, some courts will deem the 60-day period to run from the agency’s denial of the party’s request for amendment or waiver of the rule, rather than from the issuance date. ''See'' Pub. Citizen v. NRC, 901 F.2d 147, 152–53 & n.1 (D.C. Cir. 1990).<br />
<br />
===Sovereign Immunity===<br />
For many years, proceedings for nonstatutory review were subject to possible dismissal on the grounds that the government had not consented to be sued. The case law on the availability of the sovereign immunity defense was inconclusive, but a careful pleader could usually bring his case within one of the recognized exceptions to the doctrine. In 1976, in response to recommendations from ACUS and the American Bar Association, Congress enacted [http://uscode.house.gov/statutes/pl/94/574.pdf Pub. L. No. 94-574], which amended 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim 702] to abolish the defense of sovereign immunity in any action in a court of the United States seeking relief other than money damages and based on a claim that an agency or officer acted or failed to act in an official capacity or under color of legal authority. The purpose of Pub. L. No. 94-574 was to abolish the technical defense of sovereign immunity in proceedings for nonstatutory review, ''Food Town Stores, Inc. v. EEOC'', 708 F.2d 920, 922 (4th Cir. 1983), ''cert. denied'', 465 U.S. 1005 (1984)), and not to eliminate other, more substantive limitations on judicial review, such as the plaintiff’s lack of standing or failure to exhaust administrative remedies, or lack of ripeness for review of the action in question. Pub. L. No. 94-574 also eliminated several other technical obstacles to suits for judicial review.<br />
<br />
===Jurisdiction===<br />
Where the relevant statute expressly provides for judicial review in a particular court or courts, the statute itself operates as a grant of subject matter jurisdiction to the specified courts. In 1977, the Supreme Court held that the APA (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim § 702]) was not itself a grant to the federal district courts of jurisdiction over review proceedings, resolving a longstanding conflict of views. [https://supreme.justia.com/cases/federal/us/430/99/ Califano v. Sanders], 430 U.S. 99 (1977). Consequently, the jurisdictional basis for proceedings for review other than those expressly provided for by statute must be found elsewhere, such as [http://uscode.house.gov/view.xhtml?path=/prelim@title28/part4/chapter85&edition=prelim chapter 85] of title 28 of the ''U.S. Code'', which describes the jurisdiction of United States district courts. However, this is generally not an issue, because [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1331&num=0&edition=prelim § 1331] of title 28, which grants the district courts original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States, provides an adequate basis for substantially any review proceeding challenging agency action. Prior to 1976, § 1331 could be invoked only when the amount in controversy was at least $10,000. However, Pub. L. No. 94-574, the statute that abolished the sovereign immunity defense, also eliminated the jurisdictional amount in actions against the United States or its officers; in 1980, the jurisdictional amount was deleted in all cases under § 1331.<br />
<br />
In the Federal Courts Improvement Act of 1982 ([https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg25.pdf Pub. L. No. 97-164]) Congress authorized any federal court without jurisdiction over a civil action that is filed with it (including a petition for review of agency action) to transfer the action to a court where such cases could have been brought in the first instance, if it is in the interest of justice to do so. 28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1631&num=0&edition=prelim 1631] (2012). ''See generally'' Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750 F.2d 81, 84–85 (D.C. Cir. 1984).<br />
<br />
===Forum Selection===<br />
28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2112&num=0&edition=prelim 2112] governs the procedures for filing the record on review by the agency in the courts of appeals and the resolution of conflicts where proceedings have been instituted in two or more courts of appeals with respect to the same agency order. Section 2112(a) provides that the agency shall file the record (or, if local court rules permit, a certified list of the materials comprising the record) in a designated court of appeals. If only a single petition for review is filed within 10 days after issuance of an agency’s order, the agency shall file the record in that court of appeals notwithstanding the subsequent institution of any other court proceedings for review of the same order. If two or more petitions for review of the same agency order are filed in different courts of appeals within ten days after issuance of the agency’s order, the agency shall notify the judicial panel on multidistrict litigation, which shall, by means of random selection, designate one court of appeals from among the courts in which petitions were filed to hear the case; the panel shall consolidate all petitions for review in that court and the agency shall thereafter file the record in the designated court. In all other circumstances, the agency shall file the record in the court of appeals in which proceedings with respect to the order were first instituted. The random selection provisions in § 2112(a)(3) were established by [http://uscode.house.gov/statutes/pl/100/236.pdf Pub. L. No. 100-236] to implement ACUS Recommendation 80-5, [https://www.acus.gov/sites/default/files/documents/80-5.pdf ''Eliminating or Simplifying the “Race to the Courthouse” in Appeals from Agency Action'']. <br />
<br />
Section 2112(a)(5) requires all courts in which proceedings are instituted, other than the court in which the record is filed, to transfer those proceedings to the court in which the record is filed. The section nonetheless authorizes the court in which the record is filed to transfer all proceedings to any other court of appeals for the convenience of the parties and in the interest of justice.<br />
<br />
==Bibliography==<br />
<br />
===ACUS Recommendations===<br />
<br />
*2021-5 [https://www.acus.gov/recommendation/clarifying-statutory-access-judicial-review-agency-action Clarifying Statutory Access to Judicial Review of Agency Action]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Judicial_Review_of_Agency_Action&diff=1663Judicial Review of Agency Action2023-08-15T19:21:01Z<p>MGluth: </p>
<hr />
<div>==Overview==<br />
===APA Provisions===<br />
The principal statutory authorities governing judicial review of agency action are 5 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter7&edition=prelim 701–706], which codify section 10 of the [[Administrative Procedure Act]] (APA). Sections 701–706 constitute a general restatement of the principles of judicial review embodied in many statutes and judicial decisions; however, they leave the mechanics regarding judicial review to be governed by other statutes or court rules. For a thorough discussion of cases concerning both availability and scope of judicial review, see Michael Herz, Richard Murphy, and Kathryn Watts, eds., ''A Guide to Judicial and Political Review of Federal Agencies'' 1-257 (ABA, 2d ed. 2015). For a summary of the law, see ABA Section of Admin. Law & Regulatory Practice, ''A Blackletter Statement of Federal Administrative Law'' 31–66 (2d ed. 2013).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section701&num=0&edition=prelim Section 701] embodies the basic presumption that judicial review is available as long as no statute precludes such relief or the action is not one committed by law to agency discretion. ''See, e.g.'', [https://cdn.loc.gov/service/ll/usrep/usrep387/usrep387136/usrep387136.pdf ''Abbott Labs. v. Gardner''], 387 U.S. 136, 140 (1967); [https://cdn.loc.gov/service/ll/usrep/usrep401/usrep401402/usrep401402.pdf ''Citizens to Pres. Overton Park, Inc. v. Volpe]'', 401 U.S. 402, 410 (1971); [https://cdn.loc.gov/service/ll/usrep/usrep470/usrep470821/usrep470821.pdf Heckler v. Chaney], 470 U.S. 821, 826 (1985). Preliminary or interlocutory actions are ordinarily reviewable only on review of the final agency action. ''See, e.g.'', ''Ass’n of Nat’l Advertisers, Inc. v. FTC'', 565 F.2d 237 (2d Cir. 1977). In those situations “[w]here a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject to exclusive review in the Court of Appeals.” ''See Telecomms. Research & Action Ctr. v. FCC'', 750 F.2d 70, 78–79 (D.C. Cir. 1984).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim Section 702] governs the issue of who may challenge an agency action. It sets forth the general principle that a person suffering a legal wrong or who is adversely affected or aggrieved by agency action is entitled to judicial review of that action. The phrase “legal wrong” connotes those wrongs that statutes or court decisions identify as constituting grounds for judicial review. The determination of who is “adversely affected or aggrieved” reflects judicial evolution of the law of standing; the courts make their determination based on constitutional and statutory requirements. <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section703&num=0&edition=prelim Section 703] deals with the form and venue of the judicial review proceeding. Briefly, there are three types of review proceedings:<br />
<br />
*“Statutory review”—a review proceeding specifically provided by statute for the agency action in question (e.g., a proceeding to review a rule of the Federal Trade Commission under 15 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section57a&num=0&edition=prelim 57a(e)]);<br />
*“Nonstatutory review”—a review through a suit against the agency or its officers for declaratory or injunctive relief or habeas corpus in a court of competent jurisdiction; and<br />
*A civil or criminal enforcement proceeding instituted by the government or possibly by a private party that involves the validity of agency action.<br />
<br />
Where a statutory proceeding is provided, such review is undertaken frequently, though not always, in the courts of appeals. Nonstatutory review proceedings and enforcement proceedings are almost invariably brought in the U.S. district courts. Where there is an adequate statutory review provided, a party may not seek nonstatutory review. However, review is available in an enforcement proceeding except where a prior opportunity for judicial review was adequate and expressly or impliedly exclusive. <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section704&num=0&edition=prelim Section 704] provides that “agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” The Supreme Court’s summary of the law of finality in [https://cdn.loc.gov/service/ll/usrep/usrep520/usrep520154/usrep520154.pdf ''Bennett v. Spear''], 520 U.S. 154, 177–78 (1997) is now the widely cited test:<blockquote>As a general matter, two conditions must be satisfied for an agency action to be “final”: First, the action must mark the “consummation” of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”</blockquote>For suits brought under the APA, the exhaustion-of-administrative-remedies requirement is largely subsumed within the finality requirement of § 704. Where agency action is final for purposes of § 704, nonstatutory exhaustion requirements do not preclude review. Section 704 makes clear that, unless expressly required by statute, a party seeking review of otherwise final agency action pursuant to the APA need not pursue (1) any process for agency reconsideration of its decision or (2) any intra-agency appeals (except where the agency has, by rule, required exhaustion of the appeal and provided that the agency action is inoperative during the time of the appeal). ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep509/usrep509137/usrep509137.pdf Darby v. Cisneros], 509 U.S. 137 (1993).<br />
<br />
Agency action under the APA “includes the whole or a part of any agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section551&num=0&edition=prelim 551(13)] (2012).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section705&num=0&edition=prelim Section 705] authorizes a reviewing court to postpone the effectiveness of agency action or preserve the status or rights affected by an agency’s order pending completion of judicial review proceedings. The standards for deciding requests for stays of agency action are set out in ''Virginia Petroleum Jobbers Association v. Federal Power Commission'', 259 F.2d 921 (D.C. Cir. 1958), as elaborated by the court’s decisions in ''Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc.'', 559 F.2d 841 (D.C. Cir. 1977), ''Wisconsin Gas Co. v. FERC'', 758 F.2d 669 (D.C. Cir. 1985), and ''Cuomo v. NRC'', 772 F.2d 972 (D.C. Cir. 1985). [https://supreme.justia.com/cases/federal/us/555/7/ Winter v. Natural Resources Defense Council, Inc.], 555 U.S. 7 (2008), may have rendered the prevailing “sliding-scale” test into something more akin to an independent, conjunctive factor test. At the very least, ''Winter'' stands for the proposition that a plaintiff cannot readily compensate for a deficient showing of irreparable injury with a strong showing of likelihood of success on the merits. ''See [https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv2046-43 Guttenberg v. Emery]'', 26 F. Supp. 3d 88, 93 (D.D.C. 2014) (citing, among other cases, ''[https://cases.justia.com/federal/appellate-courts/cadc/13-5203/13-5203-2014-04-04.pdf?ts=1411135608 Aamer v. Obama]'', 742 F.3d 1023 (D.C. Cir. 2014)).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section706&num=0&edition=prelim Section 706] sets forth the scope of review of agency actions. The case law on the scope of review is rich and varied and cannot easily be summed up. In general, the scope of review depends on the nature of the agency determination under challenge. Agency conclusions on questions of law are reviewed de novo. When a court reviews an agency’s construction of the statute it administers, the court is required to uphold Congress’s intent where Congress has directly spoken to the precise statutory question at issue. If the statute is silent or ambiguous with respect to the specific issue, however, the agency’s interpretation of the statute must be upheld if the agency’s construction of the statute is “permissible.” ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.], 467 U.S. 837 (1984). ''Chevron'' deference is only applicable in situations when the agency’s interpretation was made through formal proceedings carrying the force of law, such as adjudications or notice-and-comment rulemaking. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep533/usrep533218/usrep533218.pdf United States v. Mead Corp.]; [https://cdn.loc.gov/service/ll/usrep/usrep529/usrep529576/usrep529576.pdf Christensen v. Harris Cty.], 529 U.S. 576 (2000). In other informal circumstances, however, it is still proper to give some lesser deference to the agency’s interpretation. Nevertheless, the Supreme Court has said some issues are of such importance that it would be improper to assume Congress intended to delegate the decision to the agency, thereby requiring the court to determine the statutory meaning on its own without any deference to the agency. ''See, e.g.'', [https://casetext.com/case/king-v-burwell-2 King v. Burwell], 135 S. Ct. 2480, 2488–89 (2015).<br />
<br />
Agency exercises of judgment or discretion are reviewed under the “arbitrary, capricious, abuse of discretion” standard. Under this standard, an agency determination will be upheld if it is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by statute. The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made. A court is not to substitute its judgment for that of the agency. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep463/usrep463029/usrep463029.pdf Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.], 463 U.S. 29, 42–43 (1983). In applying the arbitrary-and-capricious test, the courts have reversed agency actions on the following bases: <br />
<br />
#Reliance on impermissible factors;<br />
#No reasonable relationship to statutory purposes or requirements;<br />
#Inadequate factual premises;<br />
#Unsupported by any reasoning or based on seriously flawed reasoning;<br />
#Failure to consider key aspects of the issue presented;<br />
#Unexplained inconsistency with prior actions;<br />
#Failure to consider alternative solutions;<br />
#Failure to respond to relevant arguments or comments; or<br />
#Disproportionate sanctions.<br />
<br />
''See A Guide to Judicial and Political Review of Federal Agencies'' at 181–95.<br />
<br />
Agency determinations of fact are reviewed under the “substantial evidence” test when the determination is reviewed on the record of an agency hearing required by statute. ''See'' [https://supreme.justia.com/cases/federal/us/383/607/ Consolo v. Fed. Mar. Comm’n], 383 U.S. 607, 618–21 (1966) (citing [https://cdn.loc.gov/service/ll/usrep/usrep340/usrep340474/usrep340474.pdf Universal Camera Corp. v. NLRB], 340 U.S. 474 (1951)). Otherwise, factual determinations are also subject to the arbitrary or capricious standard, except in unusual cases where the facts may be subject to trial de novo by the reviewing court. However, the courts themselves have difficulty in applying the fine distinction between the arbitrary or capricious and the substantial evidence tests. The tests converge where an agency’s determination is based on a mix of factual and judgmental conclusions, ''see, e.g.'', ''Amoco Oil Co. v. EPA'', 501 F.2d 722, 739–41 (D.C. Cir. 1974), and may be identical where an agency’s factual support is concerned. ''See'' [https://casetext.com/case/assn-of-data-processing-v-bd-of-governors Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys.], 745 F.2d 677 (D.C. Cir. 1984)).<br />
<br />
Section 706 contains a rule of harmless error. A court will not overturn an agency’s decision even if the agency committed some error unless the error was genuinely harmful or prejudicial. ''See'' Dolcin Corp. v. FTC, 219 F.2d 742 (D.C. Cir. 1954), ''cert. denied'', 348 U.S. 981 (1955).<br />
<br />
===Illustrative Statutory Provision===<br />
The Administrative Orders Review Act (28 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title28/part6/chapter158&edition=prelim 2341–2351]) is a special statutory provision governing review of the actions of several different agencies. It provides for review in the courts of appeals for final orders of the Federal Communications Commission, Federal Maritime Commission, Maritime Administration, and Surface Transportation Board, and certain final orders of the Secretaries of Agriculture, Energy, Housing and Urban Development, and Transportation. It also specifies the procedure for instituting such review proceedings. Venue of the proceedings is in the judicial circuit where the petitioner resides or has its principal office or in the Court of Appeals for the District of Columbia Circuit (28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2343&num=0&edition=prelim 2343]).<br />
<br />
The “orders” that may be reviewed under the Administrative Orders Review Act include final orders in adjudicative proceedings and orders promulgating agency rules of general applicability. ''See'' Gage v. U.S. Atomic Energy Comm’n, 479 F.2d 1214, 1218–19 (D.C. Cir. 1973); [https://cdn.loc.gov/service/ll/usrep/usrep351/usrep351192/usrep351192.pdf United States v. Storer Broad. Co.], 351 U.S. 192 (1956). However, because under 28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2344&num=0&edition=prelim 2344] a review proceeding may be initiated by “any party aggrieved by the final order,” some courts have held that a party who did not participate in the administrative proceeding resulting in the order may not seek review under the Administrative Orders Review Act. ''Gage'', 479 F.2d at 1217–18.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2344&num=0&edition=prelim Section 2344] provides that review must be sought within 60 days of the entry of the agency order about which a person complains. Failure to seek judicial review within 60 days renders a request for review untimely. ''See'' B.J. McAdams, Inc. v. Interstate Commerce Comm’n, 551 F.2d 1112 (8th Cir. 1977). This requirement can create problems with respect to persons seeking relief from a rule some time after its issuance. Where a dispute over a rule arises after its issuance, some courts will deem the 60-day period to run from the agency’s denial of the party’s request for amendment or waiver of the rule, rather than from the issuance date. ''See'' Pub. Citizen v. NRC, 901 F.2d 147, 152–53 & n.1 (D.C. Cir. 1990).<br />
<br />
===Sovereign Immunity===<br />
For many years, proceedings for nonstatutory review were subject to possible dismissal on the grounds that the government had not consented to be sued. The case law on the availability of the sovereign immunity defense was inconclusive, but a careful pleader could usually bring his case within one of the recognized exceptions to the doctrine. In 1976, in response to recommendations from ACUS and the American Bar Association, Congress enacted [http://uscode.house.gov/statutes/pl/94/574.pdf Pub. L. No. 94-574], which amended 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim 702] to abolish the defense of sovereign immunity in any action in a court of the United States seeking relief other than money damages and based on a claim that an agency or officer acted or failed to act in an official capacity or under color of legal authority. The purpose of Pub. L. No. 94-574 was to abolish the technical defense of sovereign immunity in proceedings for nonstatutory review, ''Food Town Stores, Inc. v. EEOC'', 708 F.2d 920, 922 (4th Cir. 1983), ''cert. denied'', 465 U.S. 1005 (1984)), and not to eliminate other, more substantive limitations on judicial review, such as the plaintiff’s lack of standing or failure to exhaust administrative remedies, or lack of ripeness for review of the action in question. Pub. L. No. 94-574 also eliminated several other technical obstacles to suits for judicial review.<br />
<br />
===Jurisdiction===<br />
Where the relevant statute expressly provides for judicial review in a particular court or courts, the statute itself operates as a grant of subject matter jurisdiction to the specified courts. In 1977, the Supreme Court held that the APA (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim § 702]) was not itself a grant to the federal district courts of jurisdiction over review proceedings, resolving a longstanding conflict of views. [https://supreme.justia.com/cases/federal/us/430/99/ Califano v. Sanders], 430 U.S. 99 (1977). Consequently, the jurisdictional basis for proceedings for review other than those expressly provided for by statute must be found elsewhere, such as [http://uscode.house.gov/view.xhtml?path=/prelim@title28/part4/chapter85&edition=prelim chapter 85] of title 28 of the ''U.S. Code'', which describes the jurisdiction of United States district courts. However, this is generally not an issue, because [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1331&num=0&edition=prelim § 1331] of title 28, which grants the district courts original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States, provides an adequate basis for substantially any review proceeding challenging agency action. Prior to 1976, § 1331 could be invoked only when the amount in controversy was at least $10,000. However, Pub. L. No. 94-574, the statute that abolished the sovereign immunity defense, also eliminated the jurisdictional amount in actions against the United States or its officers; in 1980, the jurisdictional amount was deleted in all cases under § 1331.<br />
<br />
In the Federal Courts Improvement Act of 1982 ([https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg25.pdf Pub. L. No. 97-164]) Congress authorized any federal court without jurisdiction over a civil action that is filed with it (including a petition for review of agency action) to transfer the action to a court where such cases could have been brought in the first instance, if it is in the interest of justice to do so. 28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1631&num=0&edition=prelim 1631] (2012). ''See generally'' Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750 F.2d 81, 84–85 (D.C. Cir. 1984).<br />
<br />
===Forum Selection===<br />
28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2112&num=0&edition=prelim 2112] governs the procedures for filing the record on review by the agency in the courts of appeals and the resolution of conflicts where proceedings have been instituted in two or more courts of appeals with respect to the same agency order. Section 2112(a) provides that the agency shall file the record (or, if local court rules permit, a certified list of the materials comprising the record) in a designated court of appeals. If only a single petition for review is filed within 10 days after issuance of an agency’s order, the agency shall file the record in that court of appeals notwithstanding the subsequent institution of any other court proceedings for review of the same order. If two or more petitions for review of the same agency order are filed in different courts of appeals within ten days after issuance of the agency’s order, the agency shall notify the judicial panel on multidistrict litigation, which shall by means of random selection designate one court of appeals from among the courts in which petitions were filed to hear the case; the panel shall consolidate all petitions for review in that court and the agency shall thereafter file the record in the designated court. In all other circumstances, the agency shall file the record in the court of appeals in which proceedings with respect to the order were first instituted. The random selection provisions in section 2112(a)(3) were established by [http://uscode.house.gov/statutes/pl/100/236.pdf Pub. L. No. 100-236] to implement ACUS Recommendation 80-5, [https://www.acus.gov/sites/default/files/documents/80-5.pdf Eliminating or Simplifying the “Race to the Courthouse” in Appeals from Agency Action]. <br />
<br />
Section 2112(a)(5) requires all courts in which proceedings are instituted, other than the court in which the record is filed, to transfer those proceedings to the court in which the record is filed. The section nonetheless authorizes the court in which the record is filed to transfer all proceedings to any other court of appeals for the convenience of the parties and in the interest of justice.<br />
<br />
==Bibliography==<br />
<br />
===ACUS Recommendations===<br />
<br />
*2021-5 [https://www.acus.gov/recommendation/clarifying-statutory-access-judicial-review-agency-action Clarifying Statutory Access to Judicial Review of Agency Action]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Judicial_Review_of_Agency_Action&diff=1662Judicial Review of Agency Action2023-08-15T19:17:40Z<p>MGluth: </p>
<hr />
<div>==Overview==<br />
===APA Provisions===<br />
The principal statutory authorities governing judicial review of agency action are 5 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter7&edition=prelim 701–706], which codify section 10 of the [[Administrative Procedure Act]] (APA). Sections 701–706 constitute a general restatement of the principles of judicial review embodied in many statutes and judicial decisions; however, they leave the mechanics regarding judicial review to be governed by other statutes or court rules. For a thorough discussion of cases concerning both availability and scope of judicial review, see Michael Herz, Richard Murphy, and Kathryn Watts, eds., ''A Guide to Judicial and Political Review of Federal Agencies'' 1-257 (ABA, 2d ed. 2015). For a summary of the law, see ABA Section of Admin. Law & Regulatory Practice, ''A Blackletter Statement of Federal Administrative Law'' 31–66 (2d ed. 2013).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section701&num=0&edition=prelim Section 701] embodies the basic presumption that judicial review is available as long as no statute precludes such relief or the action is not one committed by law to agency discretion. ''See, e.g.'', [https://cdn.loc.gov/service/ll/usrep/usrep387/usrep387136/usrep387136.pdf ''Abbott Labs. v. Gardner''], 387 U.S. 136, 140 (1967); [https://cdn.loc.gov/service/ll/usrep/usrep401/usrep401402/usrep401402.pdf ''Citizens to Pres. Overton Park, Inc. v. Volpe]'', 401 U.S. 402, 410 (1971); [https://cdn.loc.gov/service/ll/usrep/usrep470/usrep470821/usrep470821.pdf Heckler v. Chaney], 470 U.S. 821, 826 (1985). Preliminary or interlocutory actions are ordinarily reviewable only on review of the final agency action. ''See, e.g.'', ''Ass’n of Nat’l Advertisers, Inc. v. FTC'', 565 F.2d 237 (2d Cir. 1977). In those situations “[w]here a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject to exclusive review in the Court of Appeals.” ''See Telecomms. Research & Action Ctr. v. FCC'', 750 F.2d 70, 78–79 (D.C. Cir. 1984).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim Section 702] governs the issue of who may challenge an agency action. It sets forth the general principle that a person suffering a legal wrong or who is adversely affected or aggrieved by agency action is entitled to judicial review of that action. The phrase “legal wrong” connotes those wrongs that statutes or court decisions identify as constituting grounds for judicial review. The determination of who is “adversely affected or aggrieved” reflects judicial evolution of the law of standing; the courts make their determination based on constitutional and statutory requirements. <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section703&num=0&edition=prelim Section 703] deals with the form and venue of the judicial review proceeding. Briefly, there are three types of review proceedings:<br />
<br />
*“Statutory review”—a review proceeding specifically provided by statute for the agency action in question (e.g., a proceeding to review a rule of the Federal Trade Commission under 15 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section57a&num=0&edition=prelim 57a(e)]);<br />
*“Nonstatutory review”—a review through a suit against the agency or its officers for declaratory or injunctive relief or habeas corpus in a court of competent jurisdiction; and<br />
*A civil or criminal enforcement proceeding instituted by the government or possibly by a private party that involves the validity of agency action.<br />
<br />
Where a statutory proceeding is provided, such review is undertaken frequently, though not always, in the courts of appeals. Nonstatutory review proceedings and enforcement proceedings are almost invariably brought in the U.S. district courts. Where there is an adequate statutory review provided, a party may not seek nonstatutory review. However, review is available in an enforcement proceeding except where a prior opportunity for judicial review was adequate and expressly or impliedly exclusive. <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section704&num=0&edition=prelim Section 704] provides that “agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” The Supreme Court’s summary of the law of finality in [https://cdn.loc.gov/service/ll/usrep/usrep520/usrep520154/usrep520154.pdf ''Bennett v. Spear''], 520 U.S. 154, 177–78 (1997) is now the widely cited test:<blockquote>As a general matter, two conditions must be satisfied for an agency action to be “final”: First, the action must mark the “consummation” of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”</blockquote>For suits brought under the APA, the exhaustion-of-administrative-remedies requirement is largely subsumed within the finality requirement of § 704. Where agency action is final for purposes of § 704, nonstatutory exhaustion requirements do not preclude review. Section 704 makes clear that, unless expressly required by statute, a party seeking review of otherwise final agency action pursuant to the APA need not pursue (1) any process for agency reconsideration of its decision or (2) any intra-agency appeals (except where the agency has, by rule, required exhaustion of the appeal and provided that the agency action is inoperative during the time of the appeal). ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep509/usrep509137/usrep509137.pdf Darby v. Cisneros], 509 U.S. 137 (1993).<br />
<br />
Agency action under the APA “includes the whole or a part of any agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section551&num=0&edition=prelim 551(13)] (2012).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section705&num=0&edition=prelim Section 705] authorizes a reviewing court to postpone the effectiveness of agency action or preserve the status or rights affected by an agency’s order pending completion of judicial review proceedings. The standards for deciding requests for stays of agency action are set out in ''Virginia Petroleum Jobbers Association v. Federal Power Commission'', 259 F.2d 921 (D.C. Cir. 1958), as elaborated by the court’s decisions in ''Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc.'', 559 F.2d 841 (D.C. Cir. 1977), ''Wisconsin Gas Co. v. FERC'', 758 F.2d 669 (D.C. Cir. 1985), and ''Cuomo v. NRC'', 772 F.2d 972 (D.C. Cir. 1985). [https://supreme.justia.com/cases/federal/us/555/7/ Winter v. Natural Resources Defense Council, Inc.], 555 U.S. 7 (2008), may have rendered the prevailing “sliding-scale” test into something more akin to an independent, conjunctive factor test. At the very least, ''Winter'' stands for the proposition that a plaintiff cannot readily compensate for a deficient showing of irreparable injury with a strong showing of likelihood of success on the merits. ''See [https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv2046-43 Guttenberg v. Emery]'', 26 F. Supp. 3d 88, 93 (D.D.C. 2014) (citing, among other cases, ''[https://cases.justia.com/federal/appellate-courts/cadc/13-5203/13-5203-2014-04-04.pdf?ts=1411135608 Aamer v. Obama]'', 742 F.3d 1023 (D.C. Cir. 2014)).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section706&num=0&edition=prelim Section 706] sets forth the scope of review of agency actions. The case law on the scope of review is rich and varied and cannot easily be summed up. In general, the scope of review depends on the nature of the agency determination under challenge. Agency conclusions on questions of law are reviewed de novo. When a court reviews an agency’s construction of the statute it administers, the court is required to uphold Congress’s intent where Congress has directly spoken to the precise statutory question at issue. If the statute is silent or ambiguous with respect to the specific issue, however, the agency’s interpretation of the statute must be upheld if the agency’s construction of the statute is “permissible.” ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.], 467 U.S. 837 (1984). ''Chevron'' deference is only applicable in situations when the agency’s interpretation was made through formal proceedings carrying the force of law, such as adjudications or notice-and-comment rulemaking. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep533/usrep533218/usrep533218.pdf United States v. Mead Corp.]; [https://cdn.loc.gov/service/ll/usrep/usrep529/usrep529576/usrep529576.pdf Christensen v. Harris Cty.], 529 U.S. 576 (2000). In other informal circumstances, however, it is still proper to give some lesser deference to the agency’s interpretation. Nevertheless, the Supreme Court has said some issues are of such importance that it would be improper to assume Congress intended to delegate the decision to the agency, thereby requiring the court to determine the statutory meaning on its own without any deference to the agency. ''See, e.g.'', [https://casetext.com/case/king-v-burwell-2 King v. Burwell], 135 S. Ct. 2480, 2488–89 (2015).<br />
<br />
Agency exercises of judgment or discretion are reviewed under the “arbitrary, capricious, abuse of discretion” standard. Under this standard, an agency determination will be upheld if it is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by statute. The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made. A court is not to substitute its judgment for that of the agency. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep463/usrep463029/usrep463029.pdf Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.], 463 U.S. 29, 42–43 (1983). In applying the arbitrary-and-capricious test, the courts have reversed agency actions on the following bases: <br />
<br />
#Reliance on impermissible factors;<br />
#No reasonable relationship to statutory purposes or requirements;<br />
#Inadequate factual premises;<br />
#Unsupported by any reasoning or based on seriously flawed reasoning;<br />
#Failure to consider key aspects of the issue presented;<br />
#Unexplained inconsistency with prior actions;<br />
#Failure to consider alternative solutions;<br />
#Failure to respond to relevant arguments or comments; or<br />
#Disproportionate sanctions.<br />
<br />
''See A Guide to Judicial and Political Review of Federal Agencies'' at 181–95.<br />
<br />
Agency determinations of fact are reviewed under the “substantial evidence” test when the determination is reviewed on the record of an agency hearing required by statute. ''See'' [https://supreme.justia.com/cases/federal/us/383/607/ Consolo v. Fed. Mar. Comm’n], 383 U.S. 607, 618–21 (1966) (citing [https://cdn.loc.gov/service/ll/usrep/usrep340/usrep340474/usrep340474.pdf Universal Camera Corp. v. NLRB], 340 U.S. 474 (1951)). Otherwise, factual determinations are also subject to the arbitrary or capricious standard, except in unusual cases where the facts may be subject to trial de novo by the reviewing court. However, the courts themselves have difficulty in applying the fine distinction between the arbitrary or capricious and the substantial evidence tests. The tests converge where an agency’s determination is based on a mix of factual and judgmental conclusions, ''see, e.g.'', ''Amoco Oil Co. v. EPA'', 501 F.2d 722, 739–41 (D.C. Cir. 1974), and may be identical where an agency’s factual support is concerned. ''See'' [https://casetext.com/case/assn-of-data-processing-v-bd-of-governors Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys.], 745 F.2d 677 (D.C. Cir. 1984)).<br />
<br />
Section 706 contains a rule of harmless error. A court will not overturn an agency’s decision even if the agency committed some error unless the error was genuinely harmful or prejudicial. ''See'' Dolcin Corp. v. FTC, 219 F.2d 742 (D.C. Cir. 1954), ''cert. denied'', 348 U.S. 981 (1955).<br />
<br />
===Illustrative Statutory Provision===<br />
The Administrative Orders Review Act (28 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title28/part6/chapter158&edition=prelim 2341–2351] (2012)) is a special statutory provision governing review of the actions of several different agencies. It provides for review in the courts of appeals for final orders of the Federal Communications Commission, Federal Maritime Commission, Maritime Administration, and Surface Transportation Board, and certain final orders of the Secretaries of Agriculture, Energy, Housing and Urban Development, and Transportation. It also specifies the procedure for instituting such review proceedings. Venue of the proceedings is in the judicial circuit where the petitioner resides or has its principal office or in the Court of Appeals for the District of Columbia Circuit (28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2343&num=0&edition=prelim 2343]).<br />
<br />
The “orders” that may be reviewed under the Administrative Orders Review Act include final orders in adjudicative proceedings and orders promulgating agency rules of general applicability. ''See Gage v. U.S. Atomic Energy Comm’n'', 479 F.2d 1214, 1218–19 (D.C. Cir. 1973); [https://cdn.loc.gov/service/ll/usrep/usrep351/usrep351192/usrep351192.pdf United States v. Storer Broad. Co.], 351 U.S. 192 (1956). However, because under 28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2344&num=0&edition=prelim 2344] a review proceeding may be initiated by “any party aggrieved by the final order,” some courts have held that a party who did not participate in the administrative proceeding resulting in the order may not seek review under the Administrative Orders Review Act. ''Gage'', 479 F.2d at 1217–18.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2344&num=0&edition=prelim Section 2344] provides that review must be sought within 60 days of the entry of the agency order about which a person complains. Failure to seek judicial review within 60 days renders a request for review untimely. ''See B.J. McAdams, Inc. v. Interstate Commerce Comm’n'', 551 F.2d 1112 (8th Cir. 1977). This requirement can create problems with respect to persons seeking relief from a rule some time after its issuance. Where a dispute over a rule arises after its issuance, some courts will deem the 60-day period to run from the agency’s denial of the party’s request for amendment or waiver of the rule, rather than from the issuance date. ''See Pub. Citizen v. NRC'', 901 F.2d 147, 152–53 & n.1 (D.C. Cir. 1990).<br />
<br />
===Sovereign Immunity===<br />
For many years, proceedings for nonstatutory review were subject to possible dismissal on the ground that the government had not consented to be sued. The case law on the availability of the sovereign immunity defense was inconclusive, but a careful pleader could usually bring his case within one of the recognized exceptions to the doctrine. In 1976, in response to recommendations from ACUS and the American Bar Association, Congress enacted [http://uscode.house.gov/statutes/pl/94/574.pdf Pub. L. No. 94-574], which amended 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim 702] to abolish the defense of sovereign immunity in any action in a court of the United States seeking relief other than money damages, and based on a claim that an agency or officer acted or failed to act in an official capacity or under color of legal authority. The purpose of Pub. L. No. 94-574 was to abolish the technical defense of sovereign immunity in proceedings for nonstatutory review, ''Food Town Stores, Inc. v. EEOC'', 708 F.2d 920, 922 (4th Cir. 1983), ''cert. denied'', 465 U.S. 1005 (1984)), and not to eliminate other, more substantive limitations on judicial review, such as the plaintiff’s lack of standing or failure to exhaust administrative remedies, or lack of ripeness for review of the action in question. Pub. L. No. 94-574 also eliminated several other technical obstacles to suits for judicial review.<br />
<br />
===Jurisdiction===<br />
Where the relevant statute expressly provides for judicial review in a particular court or courts, the statute itself operates as a grant of subject matter jurisdiction to the specified courts. In 1977, the Supreme Court held that the APA (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim § 702]) was not itself a grant to the federal district courts of jurisdiction over review proceedings, resolving a longstanding conflict of views. [http://cdn.loc.gov/service/ll/usrep/usrep430/usrep430099/usrep430099.pdf Califano v. Sanders], 430 U.S. 99 (1977). Consequently, the jurisdictional basis for proceedings for review other than those expressly provided for by statute must be found elsewhere, such as [http://uscode.house.gov/view.xhtml?path=/prelim@title28/part4/chapter85&edition=prelim chapter 85] of title 28, U.S.C., which describes the jurisdiction of United States district courts. However, this is generally not an issue, because [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1331&num=0&edition=prelim § 1331] of title 28, which grants the district courts original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States, provides an adequate basis for substantially any review proceeding challenging agency action. Prior to 1976, § 1331 could be invoked only when the amount in controversy was at least $10,000. However, Pub. L. No. 94-574, the statute that abolished the sovereign immunity defense, also eliminated the jurisdictional amount in actions against the United States or its officers; in 1980, the jurisdictional amount was deleted in all cases under § 1331.<br />
<br />
In the Federal Courts Improvement Act of 1982 ([https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg25.pdf Pub. L. No. 97-164]) Congress authorized any federal court without jurisdiction over a civil action that is filed with it (including a petition for review of agency action) to transfer the action to a court where such cases could have been brought in the first instance, if it is in the interest of justice to do so. 28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1631&num=0&edition=prelim 1631] (2012). ''See generally Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd.'', 750 F.2d 81, 84–85 (D.C. Cir. 1984).<br />
<br />
===Forum Selection===<br />
28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2112&num=0&edition=prelim 2112] governs the procedures for filing the record on review by the agency in the courts of appeals and the resolution of conflicts where proceedings have been instituted in two or more courts of appeals with respect to the same agency order. Section 2112(a) provides that the agency shall file the record (or, if local court rules permit, a certified list of the materials comprising the record) in a designated court of appeals. If only a single petition for review is filed within 10 days after issuance of an agency’s order, the agency shall file the record in that court of appeals notwithstanding the subsequent institution of any other court proceedings for review of the same order. If two or more petitions for review of the same agency order are filed in different courts of appeals within ten days after issuance of the agency’s order, the agency shall notify the judicial panel on multidistrict litigation, which shall by means of random selection designate one court of appeals from among the courts in which petitions were filed to hear the case; the panel shall consolidate all petitions for review in that court and the agency shall thereafter file the record in the designated court. In all other circumstances, the agency shall file the record in the court of appeals in which proceedings with respect to the order were first instituted. The random selection provisions in section 2112(a)(3) were established by [http://uscode.house.gov/statutes/pl/100/236.pdf Pub. L. No. 100-236] to implement ACUS Recommendation 80-5, [https://www.acus.gov/sites/default/files/documents/80-5.pdf Eliminating or Simplifying the “Race to the Courthouse” in Appeals from Agency Action]. <br />
<br />
Section 2112(a)(5) requires all courts in which proceedings are instituted, other than the court in which the record is filed, to transfer those proceedings to the court in which the record is filed. The section nonetheless authorizes the court in which the record is filed to transfer all proceedings to any other court of appeals for the convenience of the parties and in the interest of justice.<br />
<br />
==Bibliography==<br />
<br />
===ACUS Recommendations===<br />
<br />
*2021-5 [https://www.acus.gov/recommendation/clarifying-statutory-access-judicial-review-agency-action Clarifying Statutory Access to Judicial Review of Agency Action]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Judicial_Review_of_Agency_Action&diff=1661Judicial Review of Agency Action2023-08-13T16:31:55Z<p>MGluth: </p>
<hr />
<div>==Overview==<br />
===APA Provisions===<br />
The principal statutory authorities governing judicial review of agency action are 5 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title5/part1/chapter7&edition=prelim 701–706], which codify section 10 of the [[Administrative Procedure Act]] (APA). Sections 701–706 constitute a general restatement of the principles of judicial review embodied in many statutes and judicial decisions; however, they leave the mechanics regarding judicial review to be governed by other statutes or court rules. For a thorough discussion of cases concerning both availability and scope of judicial review, see Michael Herz, Richard Murphy, and Kathryn Watts, eds., ''A Guide to Judicial and Political Review of Federal Agencies'' 1-257 (ABA, 2d ed. 2015). For a summary of the law, see ABA Section of Admin. Law & Regulatory Practice, ''A Blackletter Statement of Federal Administrative Law'' 31–66 (2d ed. 2013).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section701&num=0&edition=prelim Section 701] embodies the basic presumption that judicial review is available as long as no statute precludes such relief or the action is not one committed by law to agency discretion. ''See, e.g.'', [https://cdn.loc.gov/service/ll/usrep/usrep387/usrep387136/usrep387136.pdf ''Abbott Labs. v. Gardner''], 387 U.S. 136, 140 (1967); [https://cdn.loc.gov/service/ll/usrep/usrep401/usrep401402/usrep401402.pdf ''Citizens to Pres. Overton Park, Inc. v. Volpe]'', 401 U.S. 402, 410 (1971); [https://cdn.loc.gov/service/ll/usrep/usrep470/usrep470821/usrep470821.pdf Heckler v. Chaney], 470 U.S. 821, 826 (1985). Preliminary or interlocutory actions are ordinarily reviewable only on review of the final agency action. ''See, e.g.'', ''Ass’n of Nat’l Advertisers, Inc. v. FTC'', 565 F.2d 237 (2d Cir. 1977). In those situations “[w]here a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject to exclusive review in the Court of Appeals.” ''See Telecomms. Research & Action Ctr. v. FCC'', 750 F.2d 70, 78–79 (D.C. Cir. 1984).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim Section 702] governs the issue of who may challenge an agency action. It sets forth the general principle that a person suffering a legal wrong or who is adversely affected or aggrieved by agency action is entitled to judicial review of that action. The phrase “legal wrong” connotes those wrongs that statutes or court decisions identify as constituting grounds for judicial review. The determination of who is “adversely affected or aggrieved” reflects judicial evolution of the law of standing; the courts make their determination based on constitutional and statutory requirements. <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section703&num=0&edition=prelim Section 703] deals with the form and venue of the judicial review proceeding. Briefly, there are three types of review proceedings:<br />
<br />
*“Statutory review”—a review proceeding specifically provided by statute for the agency action in question (e.g., a proceeding to review a rule of the Federal Trade Commission under 15 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section57a&num=0&edition=prelim 57a(e)]);<br />
*“Nonstatutory review”—a review through a suit against the agency or its officers for declaratory or injunctive relief or habeas corpus in a court of competent jurisdiction; and<br />
*A civil or criminal enforcement proceeding instituted by the government or possibly by a private party that involves the validity of agency action.<br />
<br />
Where a statutory proceeding is provided, such review is undertaken frequently, though not always, in the courts of appeals. Nonstatutory review proceedings and enforcement proceedings are almost invariably brought in the U.S. district courts. Where there is an adequate statutory review provided, a party may not seek nonstatutory review. However, review is available in an enforcement proceeding except where a prior opportunity for judicial review was adequate and expressly or impliedly exclusive. <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section704&num=0&edition=prelim Section 704] provides that “agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” The Supreme Court’s summary of the law of finality in [https://cdn.loc.gov/service/ll/usrep/usrep520/usrep520154/usrep520154.pdf ''Bennett v. Spear''], 520 U.S. 154, 177–78 (1997) is now the widely cited test:<blockquote>As a general matter, two conditions must be satisfied for an agency action to be “final”: First, the action must mark the “consummation” of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”</blockquote>For suits brought under the APA, the exhaustion-of-administrative-remedies requirement is largely subsumed within the finality requirement of § 704. Where agency action is final for purposes of § 704, nonstatutory exhaustion requirements do not preclude review. Section 704 makes clear that, unless expressly required by statute, a party seeking review of otherwise final agency action pursuant to the APA need not pursue (1) any process for agency reconsideration of its decision or (2) any intra-agency appeals (except where the agency has, by rule, required exhaustion of the appeal and provided that the agency action is inoperative during the time of the appeal). ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep509/usrep509137/usrep509137.pdf Darby v. Cisneros], 509 U.S. 137 (1993).<br />
<br />
Agency action under the APA “includes the whole or a part of any agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section551&num=0&edition=prelim 551(13)] (2012).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section705&num=0&edition=prelim Section 705] authorizes a reviewing court to postpone the effectiveness of agency action or preserve the status or rights affected by an agency’s order pending completion of judicial review proceedings. The standards for deciding requests for stays of agency action are set out in ''Virginia Petroleum Jobbers Association v. Federal Power Commission'', 259 F.2d 921 (D.C. Cir. 1958), as elaborated by the court’s decisions in ''Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc.'', 559 F.2d 841 (D.C. Cir. 1977), ''Wisconsin Gas Co. v. FERC'', 758 F.2d 669 (D.C. Cir. 1985), and ''Cuomo v. NRC'', 772 F.2d 972 (D.C. Cir. 1985). [https://supreme.justia.com/cases/federal/us/555/7/ Winter v. Natural Resources Defense Council, Inc.], 555 U.S. 7 (2008), may have rendered the prevailing “sliding-scale” test into something more akin to an independent, conjunctive factor test. At the very least, ''Winter'' stands for the proposition that a plaintiff cannot readily compensate for a deficient showing of irreparable injury with a strong showing of likelihood of success on the merits. ''See [https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv2046-43 Guttenberg v. Emery]'', 26 F. Supp. 3d 88, 93 (D.D.C. 2014) (citing, among other cases, ''[https://cases.justia.com/federal/appellate-courts/cadc/13-5203/13-5203-2014-04-04.pdf?ts=1411135608 Aamer v. Obama]'', 742 F.3d 1023 (D.C. Cir. 2014)).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section706&num=0&edition=prelim Section 706] sets forth the scope of review of agency actions. The case law on the scope of review is rich and varied and cannot easily be summed up. In general, the scope of review depends on the nature of the agency determination under challenge. Agency conclusions on questions of law are reviewed de novo. When a court reviews an agency’s construction of the statute it administers, the court is required to uphold Congress’s intent where Congress has directly spoken to the precise statutory question at issue. If the statute is silent or ambiguous with respect to the specific issue, however, the agency’s interpretation of the statute must be upheld if the agency’s construction of the statute is “permissible.” ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep467/usrep467837/usrep467837.pdf Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.], 467 U.S. 837 (1984). ''Chevron'' deference is only applicable in situations when the agency’s interpretation was made through formal proceedings carrying the force of law, such as adjudications or notice-and-comment rulemaking. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep533/usrep533218/usrep533218.pdf United States v. Mead Corp.]; [https://cdn.loc.gov/service/ll/usrep/usrep529/usrep529576/usrep529576.pdf Christensen v. Harris Cty.], 529 U.S. 576 (2000). In other informal circumstances, however, it is still proper to give some lesser deference to the agency’s interpretation. Nevertheless, the Supreme Court has said some issues are of such importance that it would be improper to assume Congress intended to delegate the decision to the agency, thereby requiring the court to determine the statutory meaning on its own without any deference to the agency. ''See, e.g.'', [https://casetext.com/case/king-v-burwell-2 King v. Burwell], 135 S. Ct. 2480, 2488–89 (2015).<br />
<br />
Agency exercises of judgment or discretion are reviewed under the “arbitrary, capricious, abuse of discretion” standard. Under this standard, an agency determination will be upheld if it is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by statute. The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choices made. A court is not to substitute its judgment for that of the agency. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep463/usrep463029/usrep463029.pdf Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.], 463 U.S. 29, 42–43 (1983). In applying the arbitrary-and-capricious test, the courts have reversed agency actions on the following bases: <br />
<br />
#Reliance on impermissible factors;<br />
#No reasonable relationship to statutory purposes or requirements;<br />
#Inadequate factual premises;<br />
#Unsupported by any reasoning or based on seriously flawed reasoning;<br />
#Failure to consider key aspects of the issue presented;<br />
#Unexplained inconsistency with prior actions;<br />
#Failure to consider alternative solutions;<br />
#Failure to respond to relevant arguments or comments; or<br />
#Disproportionate sanctions.<br />
<br />
''See A Guide to Judicial and Political Review of Federal Agencies'' at 181–95.<br />
<br />
Agency determinations of fact are reviewed under the “substantial evidence” test when the determination is reviewed on the record of an agency hearing required by statute. ''See'' [https://supreme.justia.com/cases/federal/us/383/607/ Consolo v. Fed. Mar. Comm’n], 383 U.S. 607, 618–21 (1966) (citing [https://cdn.loc.gov/service/ll/usrep/usrep340/usrep340474/usrep340474.pdf Universal Camera Corp. v. NLRB], 340 U.S. 474 (1951)). Otherwise, factual determinations are also subject to the arbitrary or capricious standard, except in unusual cases where the facts may be subject to trial de novo by the reviewing court. However, the courts themselves have difficulty in applying the fine distinction between the arbitrary or capricious and the substantial evidence tests. The tests converge where an agency’s determination is based on a mix of factual and judgmental conclusions, ''see, e.g.'', ''Amoco Oil Co. v. EPA'', 501 F.2d 722, 739–41 (D.C. Cir. 1974), and may be identical where an agency’s factual support is concerned. ''See [https://casetext.com/case/assn-of-data-processing-v-bd-of-governors Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys.''], 745 F.2d 677 (D.C. Cir. 1984)).<br />
<br />
Section 706 contains a rule of harmless error. A court will not overturn an agency’s decision even if the agency committed some error unless the error was genuinely harmful or prejudicial. ''See Dolcin Corp. v. FTC'', 219 F.2d 742 (D.C. Cir. 1954), ''cert. denied'', 348 U.S. 981 (1955).<br />
<br />
===Illustrative Statutory Provision===<br />
The Administrative Orders Review Act (28 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title28/part6/chapter158&edition=prelim 2341–2351] (2012)) is a special statutory provision governing review of the actions of several different agencies. It provides for review in the courts of appeals for final orders of the Federal Communications Commission, Federal Maritime Commission, Maritime Administration, and Surface Transportation Board, and certain final orders of the Secretaries of Agriculture, Energy, Housing and Urban Development, and Transportation. It also specifies the procedure for instituting such review proceedings. Venue of the proceedings is in the judicial circuit where the petitioner resides or has its principal office or in the Court of Appeals for the District of Columbia Circuit (28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2343&num=0&edition=prelim 2343]).<br />
<br />
The “orders” that may be reviewed under the Administrative Orders Review Act include final orders in adjudicative proceedings and orders promulgating agency rules of general applicability. ''See Gage v. U.S. Atomic Energy Comm’n'', 479 F.2d 1214, 1218–19 (D.C. Cir. 1973); [https://cdn.loc.gov/service/ll/usrep/usrep351/usrep351192/usrep351192.pdf United States v. Storer Broad. Co.], 351 U.S. 192 (1956). However, because under 28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2344&num=0&edition=prelim 2344] a review proceeding may be initiated by “any party aggrieved by the final order,” some courts have held that a party who did not participate in the administrative proceeding resulting in the order may not seek review under the Administrative Orders Review Act. ''Gage'', 479 F.2d at 1217–18.<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2344&num=0&edition=prelim Section 2344] provides that review must be sought within 60 days of the entry of the agency order about which a person complains. Failure to seek judicial review within 60 days renders a request for review untimely. ''See B.J. McAdams, Inc. v. Interstate Commerce Comm’n'', 551 F.2d 1112 (8th Cir. 1977). This requirement can create problems with respect to persons seeking relief from a rule some time after its issuance. Where a dispute over a rule arises after its issuance, some courts will deem the 60-day period to run from the agency’s denial of the party’s request for amendment or waiver of the rule, rather than from the issuance date. ''See Pub. Citizen v. NRC'', 901 F.2d 147, 152–53 & n.1 (D.C. Cir. 1990).<br />
<br />
===Sovereign Immunity===<br />
For many years, proceedings for nonstatutory review were subject to possible dismissal on the ground that the government had not consented to be sued. The case law on the availability of the sovereign immunity defense was inconclusive, but a careful pleader could usually bring his case within one of the recognized exceptions to the doctrine. In 1976, in response to recommendations from ACUS and the American Bar Association, Congress enacted [http://uscode.house.gov/statutes/pl/94/574.pdf Pub. L. No. 94-574], which amended 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim 702] to abolish the defense of sovereign immunity in any action in a court of the United States seeking relief other than money damages, and based on a claim that an agency or officer acted or failed to act in an official capacity or under color of legal authority. The purpose of Pub. L. No. 94-574 was to abolish the technical defense of sovereign immunity in proceedings for nonstatutory review, ''Food Town Stores, Inc. v. EEOC'', 708 F.2d 920, 922 (4th Cir. 1983), ''cert. denied'', 465 U.S. 1005 (1984)), and not to eliminate other, more substantive limitations on judicial review, such as the plaintiff’s lack of standing or failure to exhaust administrative remedies, or lack of ripeness for review of the action in question. Pub. L. No. 94-574 also eliminated several other technical obstacles to suits for judicial review.<br />
<br />
===Jurisdiction===<br />
Where the relevant statute expressly provides for judicial review in a particular court or courts, the statute itself operates as a grant of subject matter jurisdiction to the specified courts. In 1977, the Supreme Court held that the APA (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section702&num=0&edition=prelim § 702]) was not itself a grant to the federal district courts of jurisdiction over review proceedings, resolving a longstanding conflict of views. [http://cdn.loc.gov/service/ll/usrep/usrep430/usrep430099/usrep430099.pdf Califano v. Sanders], 430 U.S. 99 (1977). Consequently, the jurisdictional basis for proceedings for review other than those expressly provided for by statute must be found elsewhere, such as [http://uscode.house.gov/view.xhtml?path=/prelim@title28/part4/chapter85&edition=prelim chapter 85] of title 28, U.S.C., which describes the jurisdiction of United States district courts. However, this is generally not an issue, because [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1331&num=0&edition=prelim § 1331] of title 28, which grants the district courts original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States, provides an adequate basis for substantially any review proceeding challenging agency action. Prior to 1976, § 1331 could be invoked only when the amount in controversy was at least $10,000. However, Pub. L. No. 94-574, the statute that abolished the sovereign immunity defense, also eliminated the jurisdictional amount in actions against the United States or its officers; in 1980, the jurisdictional amount was deleted in all cases under § 1331.<br />
<br />
In the Federal Courts Improvement Act of 1982 ([https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg25.pdf Pub. L. No. 97-164]) Congress authorized any federal court without jurisdiction over a civil action that is filed with it (including a petition for review of agency action) to transfer the action to a court where such cases could have been brought in the first instance, if it is in the interest of justice to do so. 28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section1631&num=0&edition=prelim 1631] (2012). ''See generally Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd.'', 750 F.2d 81, 84–85 (D.C. Cir. 1984).<br />
<br />
===Forum Selection===<br />
28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2112&num=0&edition=prelim 2112] governs the procedures for filing the record on review by the agency in the courts of appeals and the resolution of conflicts where proceedings have been instituted in two or more courts of appeals with respect to the same agency order. Section 2112(a) provides that the agency shall file the record (or, if local court rules permit, a certified list of the materials comprising the record) in a designated court of appeals. If only a single petition for review is filed within 10 days after issuance of an agency’s order, the agency shall file the record in that court of appeals notwithstanding the subsequent institution of any other court proceedings for review of the same order. If two or more petitions for review of the same agency order are filed in different courts of appeals within ten days after issuance of the agency’s order, the agency shall notify the judicial panel on multidistrict litigation, which shall by means of random selection designate one court of appeals from among the courts in which petitions were filed to hear the case; the panel shall consolidate all petitions for review in that court and the agency shall thereafter file the record in the designated court. In all other circumstances, the agency shall file the record in the court of appeals in which proceedings with respect to the order were first instituted. The random selection provisions in section 2112(a)(3) were established by [http://uscode.house.gov/statutes/pl/100/236.pdf Pub. L. No. 100-236] to implement ACUS Recommendation 80-5, [https://www.acus.gov/sites/default/files/documents/80-5.pdf Eliminating or Simplifying the “Race to the Courthouse” in Appeals from Agency Action]. <br />
<br />
Section 2112(a)(5) requires all courts in which proceedings are instituted, other than the court in which the record is filed, to transfer those proceedings to the court in which the record is filed. The section nonetheless authorizes the court in which the record is filed to transfer all proceedings to any other court of appeals for the convenience of the parties and in the interest of justice.<br />
<br />
==Bibliography==<br />
<br />
===ACUS Recommendations===<br />
<br />
*2021-5 [https://www.acus.gov/recommendation/clarifying-statutory-access-judicial-review-agency-action Clarifying Statutory Access to Judicial Review of Agency Action]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Information_Quality_Act&diff=1660Information Quality Act2023-08-12T22:39:55Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 3516 note] (2012); enacted by [https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554 § 515], 114 Stat. 2763, 2763A-153, Dec. 21, 2000.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ Office of Management and Budget, Office of Information and Regulatory Affairs, Information Policy]<br />
<br />
==Overview==<br />
<br />
The Information Quality Act (IQA), also frequently termed the Data Quality Act, mandates the establishment of guidelines “ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated” by agencies. The IQA consists of a brief provision in the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]) and amends the 1995 [[Paperwork Reduction Act]] (PRA) ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The amendment directs the [https://www.whitehouse.gov/omb/ Office of Management and Budget] (OMB) to issue policy and procedural guidance to federal agencies that are subject to the PRA. The IQA requires OMB to guide agencies in (1) issuing their own data quality guidelines to regulate agency use and dissemination of information; (2) developing administrative mechanisms so that affected parties may seek correction of information that does not comply with information quality guidelines; and (3) making periodic reports to OMB on the number, nature, and resolution of any complaints the agencies receive concerning their failure to comply with either OMB or agency-specific information quality guidelines. An agency must also delegate a Chief Information Officer or similar official to be responsible for agency compliance; this officer is required to draft reports explaining both agency-specific guidelines and mechanisms.<br />
<br />
OMB published proposed guidelines pursuant to the IQA on June 28, 2001. [https://www.govinfo.gov/content/pkg/FR-2001-06-28/pdf/01-16227.pdf Proposed Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 34,489 (proposed June 28, 2001). Following public comment, OMB published interim final guidelines on September 28, 2001, [https://www.govinfo.gov/content/pkg/FR-2001-09-28/pdf/01-24172.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 49,718 (Sept. 28, 2001), and then finalized guidelines, after additional public comment, on February 22, 2002, [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 67 Fed. Reg. 8452 (Feb. 22, 2002). On October 1, 2002, the OMB guidelines went into effect, thus requiring agencies to issue, by the same date, their own guidelines detailing their agency-specific information quality standards and outlining administrative mechanisms for affected parties to challenge the quality of agency-disseminated information. Any information disseminated by agencies on or after October 1, 2002, is subject to the OMB and agency-specific information quality guidelines. Agency-specific guidelines may be found on the agency websites, in the ''Federal Register'', or on the OMB website.<br />
<br />
===Information Quality Guidelines=== <br />
The IQA aims to regulate “the sharing by Federal agencies of, and access to, information disseminated by Federal agencies.” The [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf OMB guidelines] define “information” as “any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms.” § V.5. This definition includes information posted on an agency web page, but excludes hyperlinks to information disseminated by sources outside the agency. Similarly, if an agency presents information in a manner clearly indicating that the information reflects an opinion-not a fact or an agency view-the information is not subject to the same information quality standards. The guidelines define “dissemination” as “agency initiated or sponsored distribution of information to the public” (§ V.8). The guidelines exclude from the definition of dissemination any distribution that is limited to “government employees or agency contractors or grantees; intra- or inter-agency use or sharing of government information; and responses to requests for agency records under the [[Freedom of Information Act]], the [[Privacy Act]], the [[Federal Advisory Committee Act]] or other similar law.” Further excluded are “correspondence with individuals or persons, press releases, archival records, public filings, [and] subpoenas or adjudicative processes.” § V.8.<br />
<br />
The IQA addresses the “quality, objectivity, utility, and integrity” of agency information. The OMB guidelines provide definitions for these terms. “Quality” encompasses utility, objectivity, and integrity. § V.1. “Utility” contemplates the usefulness of information for both the agency and the public such that “when transparency of information is relevant for assessing the information’s usefulness from the public’s perspective, the agency must take care to ensure that transparency has been addressed in its review of the information.” § V.2. “Integrity” refers to the safeguarding of information from unauthorized access or revision. § V.4. “Objectivity” focuses on whether information is substantively accurate, reliable, and unbiased and is presented in an accurate, clear, complete, and unbiased manner. §§ V.3.a-b.<br />
<br />
To satisfy the presentation prong of the objectivity requirement, agencies must present information in context, which may—depending on the sort of information—require providing additional information, sources, supporting data, models, sources of errors, and documentation. The substantive objectivity prong requires that scientific, financial, or statistical information be based on original and supporting data and analytic results produced using “sound statistical and research methods.” § V.3.b. The guidelines provide that information presumptively satisfies the substantive objectivity requirement if the relevant data and analytic results have undergone formal, independent, external peer review. § V.3.b.i. A presumption of objectivity is rebuttable if a petitioner persuasively demonstrates a lack of objectivity. If peer review is agency-sponsored, certain transparency requirements, such as the general criteria for competent and credible peer review recommended by OMB's Office of Information and Regulatory Affairs (OIRA) to the President's Management Council are triggered to ensure the peer review is adequate. § V.3.b.i. Agency-sponsored peer reviews must be open and rigorous, and peer reviewers must be selected primarily on the basis of necessary technical expertise, disclose to agencies any prior positions they may have taken on pertinent issues, and reveal sources of personal and institutional funding. § V.3.b.i. <br />
<br />
The objectivity standard—that information be “reproducible” to prove transparency—is more particular for information that falls into the category of “influential,” rather than ordinary, information. § V.3.b.ii.B. Information is influential if “the agency can reasonably determine that dissemination of the information will have or does have a clear and substantial impact on important public policies or important private sector decisions.” § V.9. Each agency may separately define “influential” to accord with “the nature and multiplicity of issues for which the agency is responsible.” § V.9. Agencies should consult with relevant scientific and technical communities on the feasibility of making certain categories of data subject to the reproducibility standard. § V.3.b.ii.A. Reproducibility in the analytic context demands that “independent analysis of the original or supporting data using identical methods would generate similar analytic results, subject to an acceptable degree of imprecision or error.” § V.10. The acceptable degree of imprecision changes to reflect the impacts the information may have. The reproducibility standard for other categories of data is set forth by individual agencies in their guidelines whenever they identify specific categories of information as subject to the reproducibility standard. § V.10.<br />
<br />
Compelling privacy interests, trade secrets, intellectual property, and other confidentiality protections take precedence over reproducibility and transparency requirements, in which case agencies must alternatively apply “especially rigorous robustness checks to analytic results and document what checks were undertaken.” § V.3.b.ii.B.i. Each agency determines the type and detail of robustness checks it conducts. Privacy interests notwithstanding, “[a]gency guidelines shall . . . in all cases, require a disclosure of the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed.” § V.3.b.ii.B.ii.<br />
<br />
Some categories of information are automatically subject to special information quality requirements under the OMB guidelines. Agencies disseminating vital health and medical information “shall interpret the reproducibility and peer-review standards in a manner appropriate to assuring the timely flow of vital information from agencies to medical providers, patients, health agencies, and the public.” § V.3.b.ii.C. Similarly, when agencies maintain and disseminate information with regard to analysis of risks to human health, safety, and the environment, they must “either adopt or adapt” the same information quality principle standards that apply to such information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996, [http://uscode.house.gov/statutes/pl/104/182.pdf Pub. L. No. 104-182]; 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section300g-1&num=0&edition=prelim § 300g-1(b)(3)(A)–(B)]. The option to “adapt” rather than “adopt” these standards provides agencies with flexibility in applying them. § V.3.b.ii.C.<br />
<br />
In urgent situations such as imminent threats to public health or homeland security an agency may temporarily waive information quality standards according to standards set forth in the agency’s own guidelines. § V.3.b.ii.C.<br />
<br />
===Administrative Mechanisms for Information Quality Challenges===<br />
<br />
The IQA and subsequent OMB guidelines require that agencies set forth in their guidelines an administrative process allowing affected parties to challenge agency-disseminated information that allegedly fails to meet the standards set forth in either the OMB guidelines or the disseminating agency’s guidelines. § III.3. In establishing these processes, agencies must specify limits on the time an agency may take to consider a challenge and provide for notification to the affected party regarding the agency’s decision. § III.3.i. Agency guidelines must also provide for an administrative appeal process to allow an affected party to seek reconsideration of an agency’s initial decision. § III.3.ii. The appeals mechanism must similarly incorporate specific limits on the time allowed for reconsideration.<br />
<br />
===Agency Reporting Requirements===<br />
<br />
Pursuant to the OMB guidelines, each agency was obligated to submit to OMB a report—following a draft report, public comment, and revisions—outlining its agency-specific information quality guidelines and how the guidelines ensure the quality of information, and also explaining the agency’s administrative mechanisms for allowing affected persons to seek correction of agency information that allegedly does not meet information quality standards. §§ IV.3-5. Following OMB review of the reports, agencies then had to post the reports on their respective websites and publish notice of the availability of the final reports in the ''Federal Register'' by October 1, 2002. § IV.5.<br />
<br />
Since January 1, 2004, agencies must report annually to the director of OMB the number and nature of complaints received by the agency regarding agency compliance with information quality guidelines. § IV.6. The first reports are included in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf OMB’s report to Congress]. OMB does not apparently publish subsequent reports, but the information for individual agencies is available through links to their websites from the OMB site.<br />
<br />
===Judicial Review===<br />
<br />
Attempts to obtain judicial review of agency compliance with the IQA and, in particular, of agency refusals to make requested corrections to disseminated information have been uniformly unsuccessful. An early case, [http://www.ca4.uscourts.gov/Opinions/051097.P.pdf Salt Institute v. Leavitt], 440 F.3d 156 (4th Cir. 2006), held the plaintiff did not have standing because the plaintiff was not injured by any failure of the agency to disseminate correct information, nor did the IQA create any individual right to correct information. ''See also'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/74C882991045080985257E580051699C/$file/12-1309-1555205.pdf Miss. Comm’n on Env't. Quality v. EPA], 790 F.3d 138 (D.C. Cir. 2015). Other cases have denied relief on different grounds. Because the IQA does not itself provide a cause of action, challenges to agency actions have been brought under the [[Administrative Procedure Act|Administrative Procedure Act]]. However, courts have been persuaded that either review of a denial of a correction request is precluded because it is committed to agency discretion by law, ''see, e.g.'', ''Styrene Info. & Resch. Ctr., Inc. v. Sebelius'', 944 F. Supp. 2d 71 (D.D.C. 2013), or that the denial is not a final agency action because it does not affect the rights or obligations of the requester, ''see, e.g.'', ''Single Stick, Inc. v. Johanns'', 601 F. Supp. 2d 307 (D.D.C. 2009), ''aff’d on other grounds'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/3D1E66C834321D4785257807005A9A8A/$file/09-5099-1236845.pdf Prime Time Int’l Co. v. Vilsack], 599 F.3d 678 (D.C. Cir. 2010).<br />
<br />
===Peer Review Bulletin===<br />
On January 14, 2005, OMB published notice in the ''Federal Register'' of its [https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review] (''Bulletin''), 70 Fed. Reg. 2664 (Jan. 14, 2005), after having released and solicited public comment on two previous drafts dated September 15, 2003, [https://www.govinfo.gov/content/pkg/FR-2003-09-15/pdf/03-23367.pdf 68 Fed. Reg. 54023], and April 28, 2004, [https://www.govinfo.gov/content/pkg/FR-2004-04-28/pdf/04-9572.pdf 69 Fed. Reg. 23230]. OMB issued the ''Bulletin'' under the IQA, Executive Order 12,866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review] 58 Fed. Reg. 51,35 (Oct. 4, 1993), and OMB’s authority to manage agencies under the President’s Constitutional authority to supervise the executive branch. OIRA oversees implementation of the ''Bulletin'' in consultation with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy] (OSTP). <br />
<br />
The ''Bulletin'' establishes governmentwide guidance for peer review of agency scientific information that will be disseminated. “Scientific information” includes “factual inputs, data, models, analyses, technical information, or scientific assessments based on the behavioral and social sciences, public health and medical sciences, life and earth sciences, engineering, or physical sciences.” § I.5. Under the ''Bulletin'', the definition of “dissemination” encompasses the IQA definition, but excludes research produced by government-funded scientists that does not represent agency views and displays a disclaimer to that effect. The definition also excludes information distributed for peer review and bearing a disclaimer stating that the information’s distribution is solely for the purpose of pre-dissemination peer review. § I.5.<br />
<br />
===Peer Review of Influential Scientific Information—Section II===<br />
<br />
Section II of the ''Bulletin'' mandates that agencies conduct peer reviews of influential scientific information intended for dissemination. The definition of “influential” is the same as that under the IQA. Section II grants agencies discretion to choose the reviewer selection process and the peer review mechanism. Reviewer selection must take into account reviewer expertise, the need for a balanced representation of perspectives, conflicts of interest, and the reviewers’ independence from the work product under review. § II.3. In choosing a peer review mechanism, the agency must consider the information’s novelty and complexity, importance to decision making, and prior peer review, as well as any benefits and costs of review. § II.4. Certain transparency requirements also apply to the peer review mechanism. The reviewers must have advance notice of how their comments will be conveyed. Reviewers must prepare a report describing their review, findings, and conclusions. The report must also provide the names and affiliations of the reviewers and “shall either (a) include a verbatim copy of each reviewer’s comments (either with or without specific attributions) or (b) represent the views of the group as a whole, including any disparate and dissenting views.” § II.5. The agency is required to post the report on its website along with all related materials, discuss the report in the preamble to any related rulemaking, and include the report in the administrative record behind any related agency action. § II.5.<br />
<br />
Agencies may commission independent entities to carry out reviewer selection and peer review. § II.6. Influential scientific information that has already undergone adequate peer review is exempt from the requirements of section II. Principal findings, recommendations, and conclusions in official reports of the National Academy of the Sciences are presumed to have undergone adequate peer review. § II.2.<br />
<br />
===Peer Review of Highly Influential Scientific Assessments—Section III===<br />
<br />
The ''Bulletin'' imposes requirements, in addition to the section II requirements, for the peer review of highly influential scientific assessments. A “scientific assessment” is “an evaluation of a body of scientific or technical knowledge that typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information.” § I.7. The term “highly influential” means that the agency or the OIRA Administrator determines that dissemination could have an impact of more than $500 million in any one year or will be “novel, controversial, or precedent-setting, or has significant interagency interest.” § III.2. The ''Bulletin'' provides that peer review of highly influential scientific assessments adhere to the following additional requirements:<br />
<br />
*Scientists employed by the sponsoring agency (outside of the peer review context) may not function as reviewers. An exception may be made if the agency determines that an agency scientist employed by a different agency of the Cabinet-level department possesses expertise essential to the review and does not hold a position of management or policy responsibility. The agency must obtain prior written approval on a nondelegable basis from the Secretary or Deputy Secretary to make such an exception. § III.3.c.<br />
*Absent an essential need, the same reviewer should not participate in multiple peer reviews. § III.3.d.<br />
*Reviewers must be provided information sufficient to enable them to understand the data, analytic procedures, and assumptions used to support the key findings or conclusions they are reviewing. § III.4.<br />
*If feasible and appropriate, the agency must make the draft scientific assessment available for public comment and sponsor a public meeting attended by the reviewers. The reviewers should then have access to the public comments pertaining to significant scientific or technical issues. § III.5.<br />
*“The peer review report shall include the charge to the reviewers and a short paragraph on both the credentials and relevant experiences of each peer reviewer.” § III.6. The agency must also write a response to the report to be posted on the agency’s website explaining the agency’s agreement or disagreement with the report, the actions the agency has undertaken or will undertake in response to the report, and, if applicable, the reasoning behind the choice of those actions. § III.6.<br />
<br />
===Additional Peer Review Guidelines=== <br />
<br />
Given a compelling rationale, the agency head may waive or defer the peer review requirements of sections II and III. § VIII.3. Additionally, instead of adhering to the requirements of sections II or III, an agency may ensure the quality of scientific information by relying on information from the National Academy of Sciences, commissioning the National Academy of Sciences to conduct the peer review, or undertaking alternative procedures approved by the OIRA Administrator in consultation with OSTP. § IV.<br />
<br />
“Peer review shall be conducted in a manner that respects (i) confidential business information and (ii) intellectual property.” § VIII.2. In disclosing information about a reviewer, the agency must comply with the requirements of the [[Privacy Act]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] as amended, and OMB [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular A-130]. § VIII.1. Information relating to certain national security, foreign affairs, or negotiations involving international trade or treaties is exempt from the peer review requirements if adhering to the requirements would interfere with the need for secrecy or promptness. Similarly exempt is information disseminated in the course of an individual agency adjudication or permit proceeding (unless the agency determines that peer review is practical and appropriate and that the influential dissemination is scientifically or technically novel); time-sensitive health or safety information; regulatory impact analysis or regulatory flexibility analysis subject to interagency review under Executive Order 12866; routine statistical information released by federal statistical agencies; accounting, budget, actuarial, and financial information; and information disseminated in connection with routine rules that materially alter entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof. § IX.<br />
<br />
If an agency supports a regulatory action using information subject to the Bulletin, it must include in the administrative record, along with relevant materials, a certification explaining how the agency complied with the ''Bulletin''’s requirements. § VII.<br />
<br />
Agencies must post on their websites, and update at least biannually, an agenda providing descriptions of all planned and ongoing influential scientific information subject to the ''Bulletin'', links to documents made public pursuant to the ''Bulletin'', and a peer review plan for each entry. § V.2. Agencies must also establish a mechanism for allowing the public to comment on the adequacy of its peer review plans. Further, each agency is required to provide to OIRA, by December 15 of each year, a summary of the peer reviews conducted by the agency during the fiscal year. § VI.<br />
<br />
The Bulletin states that it “does not create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its agencies or other entities, its officers or employees, or any other person,” thereby seeking to avoid judicial review of agency compliance with the ''Bulletin''’s requirements. § XII.<br />
<br />
===Risk Assessment===<br />
<br />
In 1995, an interagency working group, co-chaired by OMB and OSTP, developed a set of principles to guide policymakers in assessing, managing, and communicating policies to address environmental, health, and safety risks. [https://georgewbush-whitehouse.archives.gov/omb/inforeg/regpol/jan1995_risk_analysis_principles.pdf Principles for Risk Analysis]. In 2006, OMB proposed to adopt uniform quality standards for agencies to adhere to in conducting risk assessments. However, in light of comments from agencies, the public, and the National Academy of Sciences, OMB decided not to adopt that proposal. Instead, in 2007, it issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. The 1995 Principles were divided into five parts: general principles, principles for risk assessment, principles for risk management, principles for risk communication, and priority setting. The 2007 Update reiterates those principles and further develops them in accord with scientific advances in the previous 12 years.<br />
<br />
==Legislative History==<br />
<br />
On December 21, 2000, as a rider to the Treasury and General Government Appropriations Act for Fiscal Year 2001, [https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554], Congress enacted the IQA, which requires OMB to develop guidelines that establish quality standards for information disseminated by federal agencies. Congress accepted the rider to the appropriations bill without any hearings, floor debate, or legislative history specific to the IQA. However, the IQA amends the 1995 [[Paperwork Reduction Act]]’s (PRA) information dissemination requirements, which have some legislative history. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim Section 3504(d)(1)] of the PRA provides: “With respect to information dissemination, the [OMB] Director shall develop and oversee the implementation of policies, principles, standards, and guidelines to apply to Federal agency dissemination of public information, regardless of the form or format in which such information is disseminated.”<br />
<br />
The legislative history that accompanies the 1995 PRA amendments explains that the amendments “promote[] the theme of improving the quality and use of information to strengthen agency decisionmaking and accountability and to maximize the benefit and utility of information created, collected, maintained, used, shared, disseminated, and retained by or for the Federal Government.” [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995). Prior to the enactment of the IQA, OMB had not implemented the PRA’s section 3504(d)(1) information dissemination requirements. On June 22, 1998, the House approved the FY 1999 Treasury, Postal Service, and General Government Appropriations Bill, which contained a non-binding provision that closely resembles the IQA in encouraging OMB to develop policy and procedural guidance to ensure information quality. [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998). That provision provided:<blockquote>The Committee urges the Office of Management and Budget (OMB) to develop, with public and Federal agency involvement, rules providing policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies, and information disseminated by non-Federal entities with financial support from the Federal government, in fulfillment of the purposes and provisions of the [[Paperwork Reduction Act]] of 1995, [https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]. The Committee expects issuance of these rules by September 30, 1999. The OMB rules shall also cover the sharing of, and access to, the aforementioned data and information, by members of the public. Such OMB rules shall require Federal agencies to develop, within one year and with public participation, their own rules consistent with the OMB rules. The OMB and agency rules shall contain administrative mechanisms allowing affected persons to petition for correction of information which does not comply with such rules; and the OMB rules shall contain provisions requiring the agencies to report to OMB periodically regarding the number and nature of petitions or complaints regarding Federal, or Federally-supported, information dissemination, and how such petitions and complaints were handled. OMB shall report to the Committee on the status of implementation of these directives no later than September 30, 1999.</blockquote>Representative Jo Ann Emerson and Senator John Shelby are recognized as the principal sponsors of the IQA.<br />
<br />
===Source Note:===<br />
<br />
OMB maintains a [https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ website] with links to government documents relevant to the IQA. After receiving the first annual reports from agencies, OMB published them in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf a single OMB report] to Congress along with OMB’s summary of the data quality program.<br />
<br />
[http://thecre.com/quality/index.html The Center for Regulatory Effectiveness] also maintains an exhaustive and up-to-date archival site of documents relating to the IQA.<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995).<br />
*Treasury, Postal Service, and General Government Appropriations Bill, 1999, [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998).<br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking], § 5(e), 86 Fed. Reg. 8845 (Feb. 10, 2021).<br />
*Scientific Integrity Task Force, White House Office of Science and Technology Policy, [https://www.whitehouse.gov/wp-content/uploads/2022/01/01-22-Protecting_the_Integrity_of_Government_Science.pdf Protecting the Integrity of Government Science] (2022).<br />
*White House Office of Science and Technology Policy, [https://www.govinfo.gov/content/pkg/FR-2022-03-03/pdf/2022-04466.pdf Request for Information to Support the Development of a Federal Scientific Integrity Policy Framework], 87 Fed. Reg. 12,165 (2022).<br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memoranda<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmcmemo.pdf Agency Final Information Quality Guidelines] (Sept. 5, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmc_graham_100402.pdf#:~:text=Having%20successfully%20developed%20information%20quality%20guidelines%2C%20we%20must,been%20superimposed%20on%20an%20agency%E2%80%99s%20programs%20and%20procedures. Executive Branch Information Quality Law] (Oct. 4, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmc_oct03report.pdf Guidance for the Information Quality Annual Agency Report to OMB] (Oct. 17, 2003).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info_quality_posting_083004.pdf Posting of Information Quality Correction Requests and Responses] (Aug. 30, 2004).<br />
**M-05-03, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf Issuance of OMB's "Final Information Quality Bulletin for Peer Review"] (Dec. 16, 2004).<br />
**M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis] (Sept. 19, 2007).<br />
**M-19-15, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf Improving Implementation of the Information Quality Act] (Apr. 24, 2019).<br />
**[https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/memorandum-on-restoring-trust-in-government-through-scientific-integrity-and-evidence-based-policymaking/ Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking] (Jan. 27, 2021).<br />
*Other Documents<br />
**Administrator Speech: [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info-quality_march21.pdf OMB’s Role in Overseeing Information Quality], Remarks to Public Workshop on Information-Quality Guidelines (Mar. 21, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf Information Quality: A Report to Congress], (Apr. 30, 2004).<br />
**[https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review], 70 Fed. Reg. 2664 (Jan. 14, 2005).<br />
**[https://www.govinfo.gov/content/pkg/FR-2006-01-17/pdf/E6-345.pdf Proposed Risk Assessment Bulletin], 71 Fed. Reg. 2600 (Jan 17, 2006).<br />
</div><br />
<br />
===Other Government Documents===<br />
<br />
*U.S. Gov't Accountability Off., GAO-05-644, [https://www.gao.gov/products/gao-05-644 Information Quality Act: National Agricultural Statistics Service Implements First Steps, but Documentation of Census of Agriculture Could be Improved] (2005).<br />
*Gov’t Accountability Office, GAO-06-765, [https://www.gao.gov/assets/260/251202.pdf Information Quality Act: Expanded Oversight and Clearer Guidance by the Office of Management and Budget Could Improve Agencies’ Implementation of the Act] (2006).<br />
*Gov’t Accountability Office, GAO-16-110, [https://www.gao.gov/assets/680/674386.pdf Information Quality Act: Actions Needed to Improve Transparency and Reporting of Correction Requests] (2015).<br />
<br />
===ACUS Documents===<br />
*Admin. Conf. of the U.S., [https://www.acus.gov/sites/default/files/documents/Consumer Complaint Database Recommendation - 2016-1_0.pdf Recommendation 2016-1], Consumer Complaint Databases, 81 Fed. Reg. 40,259 (June 21, 2016).<br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Daren Bakst, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3753181 Strengthening the Information Quality Act to Improve Federally Disseminated Public Health Information], 75 Food & Drug L.J. 234 (2020).<br />
*Karl Bourdeau, ''Information Quality Act Challenges to Flawed Use of Science'', 19 Nat. Resources & Env’t 41 (2005).<br />
*James W. Conrad, Jr., [https://www.thecre.com/pdf/2003_conrad.pdf ''The Information Quality Act—Antiregulatory Costs of Mythic Proportions?''], 12 Kan. J.L. & Pub. Pol’y 521 (2003).<br />
*Nathan Cortez, [http://lawreview.colorado.edu/wp-content/uploads/2018/05/Cortez-Regulation-by-Database.pdf Regulation by Database], 89 U. Colo. L. Rev. 1 (2018).<br />
*Alexander Nathan Hecht, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1119&context=jleg Administrative Process in an Information Age: The Transformation of Agency Action Under the Data Quality Act], 31 J. Legis. 233 (2005).<br />
*Stephen M. Johnson, ''Junking the “Junk Science” Law: Reforming the Information Quality Act'', 58 Admin. L. Rev. 37 (2006).<br />
*Stephen M. Johnson, [https://scholarship.law.edu/cgi/viewcontent.cgi?article=1188&context=lawreview Ruminations on Dissemination: Limits on Administrative and Judicial Review Under the Information Quality Act], 55 Cath. U. L. Rev. 59 (2005).<br />
*Michelle V. Lacko, Comment, ''The Data Quality Act: Prologue to a Farce or a Tragedy?'', 53 Emory L.J. 305 (2004).<br />
*Harold Magistrale, ''An Introduction to the Information Quality Act and Its Application to Environmental Regulation'', 38 Urb. Law. 561 (2006).<br />
*Paul R. Noe & John D. Graham, ''The Ascendancy of the Cost-Benefit State?'', 5 ALR Accord 85 (2020).<br />
*Kirk T. O’Reilly, ''Science, Policy, and Politics: The Impact of the Information Quality Act on Risk-Based Regulatory Activity at the EPA'', 14 Buff. Envt. L.J. 249 (2007)<br />
*Kellen Ressmeyer, Note, [http://www.fclj.org/wp-content/uploads/2013/01/12-RessmeyerFINAL.pdf The Information Quality Act: The Little Statute that Could (or Couldn’t?): Applying the Safe Drinking Water Act Amendments of 1996 to the Federal Communications Commission], 59 Fed. Comm. L.J. 219 (2006).<br />
*Sidney A. Shapiro, [https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1153&context=wmelpr The Information Quality Act and Environmental Protection: The Perils of Reform by Appropriations Rider], 28 Wm. & Mary Envt. L. & Pol’y Rev. 339 (2004).<br />
*Tammy P. Tideswell, [http://www.jag.navy.mil/documents/navylawreview/NLRVolume51.pdf The Information Quality Act: An Environmental Primer], 51 Naval L. Rev. 91 (2005).<br />
*Wendy E. Wagner, [https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1282&context=jlp Importing Daubert to Administrative Agencies Through the Information Quality Act], 12 J.L. & Pol’y 589 (2004).<br />
</div><br />
<br />
==Statutory Provisions==<br />
<br />
Information Quality Act <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 44 U.S.C. § 3516 note]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Information_Quality_Act&diff=1659Information Quality Act2023-08-12T22:34:32Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 3516 note] (2012); enacted by [https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554 § 515], 114 Stat. 2763, 2763A-153, Dec. 21, 2000.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ Office of Management and Budget, Office of Information and Regulatory Affairs, Information Policy]<br />
<br />
==Overview==<br />
<br />
The Information Quality Act (IQA), also frequently termed the Data Quality Act, mandates the establishment of guidelines “ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated” by agencies. The IQA consists of a brief provision in the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]) and amends the 1995 [[Paperwork Reduction Act]] (PRA) ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The amendment directs the [https://www.whitehouse.gov/omb/ Office of Management and Budget] (OMB) to issue policy and procedural guidance to federal agencies that are subject to the PRA. The IQA requires OMB to guide agencies in (1) issuing their own data quality guidelines to regulate agency use and dissemination of information; (2) developing administrative mechanisms so that affected parties may seek correction of information that does not comply with information quality guidelines; and (3) making periodic reports to OMB on the number, nature, and resolution of any complaints the agencies receive concerning their failure to comply with either OMB or agency-specific information quality guidelines. An agency must also delegate a Chief Information Officer or similar official to be responsible for agency compliance; this officer is required to draft reports explaining both agency-specific guidelines and mechanisms.<br />
<br />
OMB published proposed guidelines pursuant to the IQA on June 28, 2001. [https://www.govinfo.gov/content/pkg/FR-2001-06-28/pdf/01-16227.pdf Proposed Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 34,489 (proposed June 28, 2001). Following public comment, OMB published interim final guidelines on September 28, 2001, [https://www.govinfo.gov/content/pkg/FR-2001-09-28/pdf/01-24172.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 49,718 (Sept. 28, 2001), and then finalized guidelines, after additional public comment, on February 22, 2002, [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 67 Fed. Reg. 8452 (Feb. 22, 2002). On October 1, 2002, the OMB guidelines went into effect, thus requiring agencies to issue, by the same date, their own guidelines detailing their agency-specific information quality standards and outlining administrative mechanisms for affected parties to challenge the quality of agency-disseminated information. Any information disseminated by agencies on or after October 1, 2002, is subject to the OMB and agency-specific information quality guidelines. Agency-specific guidelines may be found on the agency websites, in the ''Federal Register'', or on the OMB website.<br />
<br />
===Information Quality Guidelines=== <br />
The IQA aims to regulate “the sharing by Federal agencies of, and access to, information disseminated by Federal agencies.” The [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf OMB guidelines] define “information” as “any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms.” § V.5. This definition includes information posted on an agency web page, but excludes hyperlinks to information disseminated by sources outside the agency. Similarly, if an agency presents information in a manner clearly indicating that the information reflects an opinion-not a fact or an agency view-the information is not subject to the same information quality standards. The guidelines define “dissemination” as “agency initiated or sponsored distribution of information to the public” (§ V.8). The guidelines exclude from the definition of dissemination any distribution that is limited to “government employees or agency contractors or grantees; intra- or inter-agency use or sharing of government information; and responses to requests for agency records under the [[Freedom of Information Act]], the [[Privacy Act]], the [[Federal Advisory Committee Act]] or other similar law.” Further excluded are “correspondence with individuals or persons, press releases, archival records, public filings, [and] subpoenas or adjudicative processes.” § V.8.<br />
<br />
The IQA addresses the “quality, objectivity, utility, and integrity” of agency information. The OMB guidelines provide definitions for these terms. “Quality” encompasses utility, objectivity, and integrity. § V.1. “Utility” contemplates the usefulness of information for both the agency and the public such that “when transparency of information is relevant for assessing the information’s usefulness from the public’s perspective, the agency must take care to ensure that transparency has been addressed in its review of the information.” § V.2. “Integrity” refers to the safeguarding of information from unauthorized access or revision. § V.4. “Objectivity” focuses on whether information is substantively accurate, reliable, and unbiased and is presented in an accurate, clear, complete, and unbiased manner. §§ V.3.a-b.<br />
<br />
To satisfy the presentation prong of the objectivity requirement, agencies must present information in context, which may—depending on the sort of information—require providing additional information, sources, supporting data, models, sources of errors, and documentation. The substantive objectivity prong requires that scientific, financial, or statistical information be based on original and supporting data and analytic results produced using “sound statistical and research methods.” § V.3.b. The guidelines provide that information presumptively satisfies the substantive objectivity requirement if the relevant data and analytic results have undergone formal, independent, external peer review. § V.3.b.i. A presumption of objectivity is rebuttable if a petitioner persuasively demonstrates a lack of objectivity. If peer review is agency-sponsored, certain transparency requirements, such as the general criteria for competent and credible peer review recommended by OMB's Office of Information and Regulatory Affairs (OIRA) to the President's Management Council are triggered to ensure the peer review is adequate. § V.3.b.i. Agency-sponsored peer reviews must be open and rigorous, and peer reviewers must be selected primarily on the basis of necessary technical expertise, disclose to agencies any prior positions they may have taken on pertinent issues, and reveal sources of personal and institutional funding. § V.3.b.i. <br />
<br />
The objectivity standard—that information be “reproducible” to prove transparency—is more particular for information that falls into the category of “influential,” rather than ordinary, information. § V.3.b.ii.B. Information is influential if “the agency can reasonably determine that dissemination of the information will have or does have a clear and substantial impact on important public policies or important private sector decisions.” § V.9. Each agency may separately define “influential” to accord with “the nature and multiplicity of issues for which the agency is responsible.” § V.9. Agencies should consult with relevant scientific and technical communities on the feasibility of making certain categories of data subject to the reproducibility standard. § V.3.b.ii.A. Reproducibility in the analytic context demands that “independent analysis of the original or supporting data using identical methods would generate similar analytic results, subject to an acceptable degree of imprecision or error.” § V.10. The acceptable degree of imprecision changes to reflect the impacts the information may have. The reproducibility standard for other categories of data is set forth by individual agencies in their guidelines whenever they identify specific categories of information as subject to the reproducibility standard. § V.10.<br />
<br />
Compelling privacy interests, trade secrets, intellectual property, and other confidentiality protections take precedence over reproducibility and transparency requirements, in which case agencies must alternatively apply “especially rigorous robustness checks to analytic results and document what checks were undertaken.” § V.3.b.ii.B.i. Each agency determines the type and detail of robustness checks it conducts. Privacy interests notwithstanding, “[a]gency guidelines shall . . . in all cases, require a disclosure of the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed.” § V.3.b.ii.B.ii.<br />
<br />
Some categories of information are automatically subject to special information quality requirements under the OMB guidelines. Agencies disseminating vital health and medical information “shall interpret the reproducibility and peer-review standards in a manner appropriate to assuring the timely flow of vital information from agencies to medical providers, patients, health agencies, and the public.” § V.3.b.ii.C. Similarly, when agencies maintain and disseminate information with regard to analysis of risks to human health, safety, and the environment, they must “either adopt or adapt” the same information quality principle standards that apply to such information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996, [http://uscode.house.gov/statutes/pl/104/182.pdf Pub. L. No. 104-182]; 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section300g-1&num=0&edition=prelim § 300g-1(b)(3)(A)–(B)]. The option to “adapt” rather than “adopt” these standards provides agencies with flexibility in applying them. § V.3.b.ii.C.<br />
<br />
In urgent situations such as imminent threats to public health or homeland security an agency may temporarily waive information quality standards according to standards set forth in the agency’s own guidelines. § V.3.b.ii.C.<br />
<br />
===Administrative Mechanisms for Information Quality Challenges===<br />
<br />
The IQA and subsequent OMB guidelines require that agencies set forth in their guidelines an administrative process allowing affected parties to challenge agency-disseminated information that allegedly fails to meet the standards set forth in either the OMB guidelines or the disseminating agency’s guidelines. § III.3. In establishing these processes, agencies must specify limits on the time an agency may take to consider a challenge and provide for notification to the affected party regarding the agency’s decision. § III.3.i. Agency guidelines must also provide for an administrative appeal process to allow an affected party to seek reconsideration of an agency’s initial decision. § III.3.ii. The appeals mechanism must similarly incorporate specific limits on the time allowed for reconsideration.<br />
<br />
===Agency Reporting Requirements===<br />
<br />
Pursuant to the OMB guidelines, each agency was obligated to submit to OMB a report—following a draft report, public comment, and revisions—outlining its agency-specific information quality guidelines and how the guidelines ensure the quality of information, and also explaining the agency’s administrative mechanisms for allowing affected persons to seek correction of agency information that allegedly does not meet information quality standards. §§ IV.3-5. Following OMB review of the reports, agencies then had to post the reports on their respective websites and publish notice of the availability of the final reports in the ''Federal Register'' by October 1, 2002. § IV.5.<br />
<br />
Since January 1, 2004, agencies must report annually to the director of OMB the number and nature of complaints received by the agency regarding agency compliance with information quality guidelines. § IV.6. The first reports are included in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf OMB’s report to Congress]. OMB does not apparently publish subsequent reports, but the information for individual agencies is available through links to their websites from the OMB site.<br />
<br />
===Judicial Review===<br />
<br />
Attempts to obtain judicial review of agency compliance with the IQA and, in particular, of agency refusals to make requested corrections to disseminated information have been uniformly unsuccessful. An early case, [http://www.ca4.uscourts.gov/Opinions/051097.P.pdf Salt Institute v. Leavitt], 440 F.3d 156 (4th Cir. 2006), held the plaintiff did not have standing because the plaintiff was not injured by any failure of the agency to disseminate correct information, nor did the IQA create any individual right to correct information. ''See also'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/74C882991045080985257E580051699C/$file/12-1309-1555205.pdf Miss. Comm’n on Env't. Quality v. EPA], 790 F.3d 138 (D.C. Cir. 2015). Other cases have denied relief on different grounds. Because the IQA does not itself provide a cause of action, challenges to agency actions have been brought under the [[Administrative Procedure Act|Administrative Procedure Act]]. However, courts have been persuaded that either review of a denial of a correction request is precluded because it is committed to agency discretion by law, ''see, e.g.'', ''Styrene Info. & Resch. Ctr., Inc. v. Sebelius'', 944 F. Supp. 2d 71 (D.D.C. 2013), or that the denial is not a final agency action because it does not affect the rights or obligations of the requester, ''see, e.g.'', ''Single Stick, Inc. v. Johanns'', 601 F. Supp. 2d 307 (D.D.C. 2009), ''aff’d on other grounds'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/3D1E66C834321D4785257807005A9A8A/$file/09-5099-1236845.pdf Prime Time Int’l Co. v. Vilsack], 599 F.3d 678 (D.C. Cir. 2010).<br />
<br />
===Peer Review Bulletin===<br />
On January 14, 2005, OMB published notice in the ''Federal Register'' of its [https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review] (''Bulletin''), 70 Fed. Reg. 2664 (Jan. 14, 2005), after having released and solicited public comment on two previous drafts dated September 15, 2003, [https://www.govinfo.gov/content/pkg/FR-2003-09-15/pdf/03-23367.pdf 68 Fed. Reg. 54023], and April 28, 2004, [https://www.govinfo.gov/content/pkg/FR-2004-04-28/pdf/04-9572.pdf 69 Fed. Reg. 23230]. OMB issued the ''Bulletin'' under the IQA, Executive Order 12,866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review] 58 Fed. Reg. 51,35 (Oct. 4, 1993), and OMB’s authority to manage agencies under the President’s Constitutional authority to supervise the executive branch. OIRA oversees implementation of the ''Bulletin'' in consultation with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy] (OSTP). <br />
<br />
The ''Bulletin'' establishes governmentwide guidance for peer review of agency scientific information that will be disseminated. “Scientific information” includes “factual inputs, data, models, analyses, technical information, or scientific assessments based on the behavioral and social sciences, public health and medical sciences, life and earth sciences, engineering, or physical sciences.” § I.5. Under the ''Bulletin'', the definition of “dissemination” encompasses the IQA definition, but excludes research produced by government-funded scientists that does not represent agency views and displays a disclaimer to that effect. The definition also excludes information distributed for peer review and bearing a disclaimer stating that the information’s distribution is solely for the purpose of pre-dissemination peer review. § I.5.<br />
<br />
===Peer Review of Influential Scientific Information—Section II===<br />
<br />
Section II of the ''Bulletin'' mandates that agencies conduct peer reviews of influential scientific information intended for dissemination. The definition of “influential” is the same as that under the IQA. Section II grants agencies discretion to choose the reviewer selection process and the peer review mechanism. Reviewer selection must take into account reviewer expertise, the need for a balanced representation of perspectives, conflicts of interest, and the reviewers’ independence from the work product under review. § II.3. In choosing a peer review mechanism, the agency must consider the information’s novelty and complexity, importance to decision making, and prior peer review, as well as any benefits and costs of review. § II.4. Certain transparency requirements also apply to the peer review mechanism. The reviewers must have advance notice of how their comments will be conveyed. Reviewers must prepare a report describing their review, findings, and conclusions. The report must also provide the names and affiliations of the reviewers and “shall either (a) include a verbatim copy of each reviewer’s comments (either with or without specific attributions) or (b) represent the views of the group as a whole, including any disparate and dissenting views.” § II.5. The agency is required to post the report on its website along with all related materials, discuss the report in the preamble to any related rulemaking, and include the report in the administrative record behind any related agency action. § II.5.<br />
<br />
Agencies may commission independent entities to carry out reviewer selection and peer review. § II.6. Influential scientific information that has already undergone adequate peer review is exempt from the requirements of section II. Principal findings, recommendations, and conclusions in official reports of the National Academy of the Sciences are presumed to have undergone adequate peer review. § II.2.<br />
<br />
===Peer Review of Highly Influential Scientific Assessments—Section III===<br />
<br />
The ''Bulletin'' imposes requirements, in addition to the section II requirements, for the peer review of highly influential scientific assessments. A “scientific assessment” is “an evaluation of a body of scientific or technical knowledge that typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information.” § I.7. The term “highly influential” means that the agency or the OIRA Administrator determines that dissemination could have an impact of more than $500 million in any one year or will be “novel, controversial, or precedent-setting, or has significant interagency interest.” § III.2. The ''Bulletin'' provides that peer review of highly influential scientific assessments adhere to the following additional requirements:<br />
<br />
*Scientists employed by the sponsoring agency (outside of the peer review context) may not function as reviewers. An exception may be made if the agency determines that an agency scientist employed by a different agency of the Cabinet-level department possesses expertise essential to the review and does not hold a position of management or policy responsibility. The agency must obtain prior written approval on a nondelegable basis from the Secretary or Deputy Secretary to make such an exception. § III.3.c.<br />
*Absent an essential need, the same reviewer should not participate in multiple peer reviews. § III.3.d.<br />
*Reviewers must be provided information sufficient to enable them to understand the data, analytic procedures, and assumptions used to support the key findings or conclusions they are reviewing. § III.4.<br />
*If feasible and appropriate, the agency must make the draft scientific assessment available for public comment and sponsor a public meeting attended by the reviewers. The reviewers should then have access to the public comments pertaining to significant scientific or technical issues. § III.5.<br />
*“The peer review report shall include the charge to the reviewers and a short paragraph on both the credentials and relevant experiences of each peer reviewer.” § III.6. The agency must also write a response to the report to be posted on the agency’s website explaining the agency’s agreement or disagreement with the report, the actions the agency has undertaken or will undertake in response to the report, and, if applicable, the reasoning behind the choice of those actions. § III.6.<br />
<br />
===Additional Peer Review Guidelines=== <br />
<br />
Given a compelling rationale, the agency head may waive or defer the peer review requirements of sections II and III. § VIII.3. Additionally, instead of adhering to the requirements of sections II or III, an agency may ensure the quality of scientific information by relying on information from the National Academy of Sciences, commissioning the National Academy of Sciences to conduct the peer review, or undertaking alternative procedures approved by the OIRA Administrator in consultation with OSTP. § IV.<br />
<br />
“Peer review shall be conducted in a manner that respects (i) confidential business information and (ii) intellectual property.” § VIII.2. In disclosing information about a reviewer, the agency must comply with the requirements of the [[Privacy Act]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] as amended, and OMB [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular A-130]. § VIII.1. Information relating to certain national security, foreign affairs, or negotiations involving international trade or treaties is exempt from the peer review requirements if adhering to the requirements would interfere with the need for secrecy or promptness. Similarly exempt is information disseminated in the course of an individual agency adjudication or permit proceeding (unless the agency determines that peer review is practical and appropriate and that the influential dissemination is scientifically or technically novel); time-sensitive health or safety information; regulatory impact analysis or regulatory flexibility analysis subject to interagency review under Executive Order 12866; routine statistical information released by federal statistical agencies; accounting, budget, actuarial, and financial information; and information disseminated in connection with routine rules that materially alter entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof. § IX.<br />
<br />
If an agency supports a regulatory action using information subject to the Bulletin, it must include in the administrative record, along with relevant materials, a certification explaining how the agency complied with the ''Bulletin''’s requirements. § VII.<br />
<br />
Agencies must post on their websites, and update at least biannually, an agenda providing descriptions of all planned and ongoing influential scientific information subject to the ''Bulletin'', links to documents made public pursuant to the ''Bulletin'', and a peer review plan for each entry. § V.2. Agencies must also establish a mechanism for allowing the public to comment on the adequacy of its peer review plans. Further, each agency is required to provide to OIRA, by December 15 of each year, a summary of the peer reviews conducted by the agency during the fiscal year. § VI.<br />
<br />
The Bulletin states that it “does not create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its agencies or other entities, its officers or employees, or any other person,” thereby seeking to avoid judicial review of agency compliance with the ''Bulletin''’s requirements. § XII.<br />
<br />
===Risk Assessment===<br />
<br />
In 1995, an interagency working group, co-chaired by OMB and OSTP, developed a set of principles to guide policymakers in assessing, managing, and communicating policies to address environmental, health, and safety risks. [https://georgewbush-whitehouse.archives.gov/omb/inforeg/regpol/jan1995_risk_analysis_principles.pdf Principles for Risk Analysis]. In 2006, OMB proposed to adopt uniform quality standards for agencies to adhere to in conducting risk assessments. However, in light of comments from agencies, the public, and the National Academy of Sciences, OMB decided not to adopt that proposal. Instead, in 2007, it issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. The 1995 Principles were divided into five parts: general principles, principles for risk assessment, principles for risk management, principles for risk communication, and priority setting. The 2007 Update reiterates those principles and further develops them in accord with scientific advances in the previous 12 years.<br />
<br />
==Legislative History==<br />
<br />
On December 21, 2000, as a rider to the Treasury and General Government Appropriations Act for Fiscal Year 2001, [https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554], Congress enacted the IQA, which requires OMB to develop guidelines that establish quality standards for information disseminated by federal agencies. Congress accepted the rider to the appropriations bill without any hearings, floor debate, or legislative history specific to the IQA. However, the IQA amends the 1995 [[Paperwork Reduction Act]]’s (PRA) information dissemination requirements, which have some legislative history. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim Section 3504(d)(1)] of the PRA provides: “With respect to information dissemination, the [OMB] Director shall develop and oversee the implementation of policies, principles, standards, and guidelines to apply to Federal agency dissemination of public information, regardless of the form or format in which such information is disseminated.”<br />
<br />
The legislative history that accompanies the 1995 PRA amendments explains that the amendments “promote[] the theme of improving the quality and use of information to strengthen agency decisionmaking and accountability and to maximize the benefit and utility of information created, collected, maintained, used, shared, disseminated, and retained by or for the Federal Government.” [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995). Prior to the enactment of the IQA, OMB had not implemented the PRA’s section 3504(d)(1) information dissemination requirements. On June 22, 1998, the House approved the FY 1999 Treasury, Postal Service, and General Government Appropriations Bill, which contained a non-binding provision that closely resembles the IQA in encouraging OMB to develop policy and procedural guidance to ensure information quality. [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998). That provision provided:<blockquote>The Committee urges the Office of Management and Budget (OMB) to develop, with public and Federal agency involvement, rules providing policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies, and information disseminated by non-Federal entities with financial support from the Federal government, in fulfillment of the purposes and provisions of the [[Paperwork Reduction Act]] of 1995, [https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]. The Committee expects issuance of these rules by September 30, 1999. The OMB rules shall also cover the sharing of, and access to, the aforementioned data and information, by members of the public. Such OMB rules shall require Federal agencies to develop, within one year and with public participation, their own rules consistent with the OMB rules. The OMB and agency rules shall contain administrative mechanisms allowing affected persons to petition for correction of information which does not comply with such rules; and the OMB rules shall contain provisions requiring the agencies to report to OMB periodically regarding the number and nature of petitions or complaints regarding Federal, or Federally-supported, information dissemination, and how such petitions and complaints were handled. OMB shall report to the Committee on the status of implementation of these directives no later than September 30, 1999.</blockquote>Representative Jo Ann Emerson and Senator John Shelby are recognized as the principal sponsors of the IQA.<br />
<br />
===Source Note:===<br />
<br />
OMB maintains a [https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ website] with links to government documents relevant to the IQA. After receiving the first annual reports from agencies, OMB published them in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf a single OMB report] to Congress along with OMB’s summary of the data quality program.<br />
<br />
[http://thecre.com/quality/index.html The Center for Regulatory Effectiveness] also maintains an exhaustive and up-to-date archival site of documents relating to the IQA.<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995).<br />
*Treasury, Postal Service, and General Government Appropriations Bill, 1999, [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998).<br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking], § 5(e), 86 Fed. Reg. 8845 (Feb. 10, 2021).<br />
*Scientific Integrity Task Force, White House Office of Science and Technology Policy, [https://www.whitehouse.gov/wp-content/uploads/2022/01/01-22-Protecting_the_Integrity_of_Government_Science.pdf Protecting the Integrity of Government Science] (2022).<br />
*White House Office of Science and Technology Policy, [https://www.govinfo.gov/content/pkg/FR-2022-03-03/pdf/2022-04466.pdf Request for Information to Support the Development of a Federal Scientific Integrity Policy Framework], 87 Fed. Reg. 12,165 (2022).<br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memoranda<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmcmemo.pdf Agency Final Information Quality Guidelines] (Sept. 5, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmc_graham_100402.pdf#:~:text=Having%20successfully%20developed%20information%20quality%20guidelines%2C%20we%20must,been%20superimposed%20on%20an%20agency%E2%80%99s%20programs%20and%20procedures. Executive Branch Information Quality Law] (Oct. 4, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmc_oct03report.pdf Guidance for the Information Quality Annual Agency Report to OMB] (Oct. 17, 2003).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info_quality_posting_083004.pdf Posting of Information Quality Correction Requests and Responses] (Aug. 30, 2004).<br />
**M-05-03, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2005/m05-03.pdf Issuance of OMB's "Final Information Quality Bulletin for Peer Review"] (Dec. 16, 2004).<br />
**M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis] (Sept. 19, 2007).<br />
**M-19-15, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf Improving Implementation of the Information Quality Act] (Apr. 24, 2019).<br />
**[https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/memorandum-on-restoring-trust-in-government-through-scientific-integrity-and-evidence-based-policymaking/ Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking] (Jan. 27, 2021).<br />
*Other Documents<br />
**Administrator Speech: [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info-quality_march21.pdf OMB’s Role in Overseeing Information Quality], Remarks to Public Workshop on Information-Quality Guidelines (Mar. 21, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf Information Quality: A Report to Congress], (Apr. 30, 2004).<br />
**[https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review], 70 Fed. Reg. 2664 (Jan. 14, 2005).<br />
**[https://www.govinfo.gov/content/pkg/FR-2006-01-17/pdf/E6-345.pdf Proposed Risk Assessment Bulletin], 71 Fed. Reg. 2600 (Jan 17, 2006).<br />
**M-19-15, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf Improving Implementation of the Information Quality Act] (Apr. 24, 2019).<br />
</div><br />
<br />
===Other Government Documents===<br />
<br />
*Gov’t Accountability Office, GAO-06-765, [https://www.gao.gov/assets/260/251202.pdf Information Quality Act: Expanded Oversight and Clearer Guidance by the Office of Management and Budget Could Improve Agencies’ Implementation of the Act] (2006).<br />
*Gov’t Accountability Office, GAO-16-110, [https://www.gao.gov/assets/680/674386.pdf Information Quality Act: Actions Needed to Improve Transparency and Reporting of Correction Requests] (2015).<br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Daren Bakst, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3753181 Strengthening the Information Quality Act to Improve Federally Disseminated Public Health Information], 75 Food Drug L.J. 234 (2020).<br />
*Karl Bourdeau, ''Information Quality Act Challenges to Flawed Use of Science'', 19 Nat. Resources & Env’t 41 (2005).<br />
*James W. Conrad, Jr., ''The Information Quality Act—Antiregulatory Costs of Mythic Proportions?'', 12 Kan. J.L. & Pub. Pol’y 521 (2003).<br />
*Nathan Cortez, [http://lawreview.colorado.edu/wp-content/uploads/2018/05/Cortez-Regulation-by-Database.pdf Regulation by Database], 89 U. Colo. L. Rev. 1 (2018).<br />
*Alexander Nathan Hecht, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1119&context=jleg Administrative Process in an Information Age: The Transformation of Agency Action Under the Data Quality Act], 31 J. Legis. 233 (2005).<br />
*Stephen M. Johnson, ''Junking the “Junk Science” Law: Reforming the Information Quality Act'', 58 Admin. L. Rev. 37 (2006).<br />
*Stephen M. Johnson, [https://scholarship.law.edu/cgi/viewcontent.cgi?article=1188&context=lawreview Ruminations on Dissemination: Limits on Administrative and Judicial Review Under the Information Quality Act], 55 Cath. U. L. Rev. 59 (2005).<br />
*Michelle V. Lacko, Comment, ''The Data Quality Act: Prologue to a Farce or a Tragedy?'', 53 Emory L.J. 305 (2004).<br />
*Harold Magistrale, ''An Introduction to the Information Quality Act and Its Application to Environmental Regulation'', 38 Urb. Law. 561 (2006).<br />
*Paul R. Noe & John D. Graham, ''The Ascendancy of the Cost-Benefit State?'', 5 ALR Accord 85 (2020).<br />
*Kirk T. O’Reilly, ''Science, Policy, and Politics: The Impact of the Information Quality Act on Risk-Based Regulatory Activity at the EPA'', 14 Buff. Envtl. L.J. 249 (2007)<br />
*Kellen Ressmeyer, Note, [http://www.fclj.org/wp-content/uploads/2013/01/12-RessmeyerFINAL.pdf The Information Quality Act: The Little Statute that Could (or Couldn’t?): Applying the Safe Drinking Water Act Amendments of 1996 to the Federal Communications Commission], 59 Fed. Comm. L.J. 219 (2006).<br />
*Sidney A. Shapiro, [https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1153&context=wmelpr The Information Quality Act and Environmental Protection: The Perils of Reform by Appropriations Rider], 28 Wm. & Mary Envtl. L. & Pol’y Rev. 339 (2004).<br />
*Tammy P. Tideswell, [http://www.jag.navy.mil/documents/navylawreview/NLRVolume51.pdf The Information Quality Act: An Environmental Primer], 51 Naval L. Rev. 91 (2005).<br />
*Wendy E. Wagner, [https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1282&context=jlp Importing Daubert to Administrative Agencies Through the Information Quality Act], 12 J.L. & Pol’y 589 (2004).<br />
</div><br />
<br />
==Statutory Provisions==<br />
<br />
Information Quality Act <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 44 U.S.C. § 3516 note]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Information_Quality_Act&diff=1658Information Quality Act2023-08-12T22:29:04Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 3516 note] (2012); enacted by [https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554 § 515], 114 Stat. 2763, 2763A-153, Dec. 21, 2000.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ Office of Management and Budget, Office of Information and Regulatory Affairs, Information Policy]<br />
<br />
==Overview==<br />
<br />
The Information Quality Act (IQA), also frequently termed the Data Quality Act, mandates the establishment of guidelines “ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated” by agencies. The IQA consists of a brief provision in the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]) and amends the 1995 [[Paperwork Reduction Act]] (PRA) ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The amendment directs the [https://www.whitehouse.gov/omb/ Office of Management and Budget] (OMB) to issue policy and procedural guidance to federal agencies that are subject to the PRA. The IQA requires OMB to guide agencies in (1) issuing their own data quality guidelines to regulate agency use and dissemination of information; (2) developing administrative mechanisms so that affected parties may seek correction of information that does not comply with information quality guidelines; and (3) making periodic reports to OMB on the number, nature, and resolution of any complaints the agencies receive concerning their failure to comply with either OMB or agency-specific information quality guidelines. An agency must also delegate a Chief Information Officer or similar official to be responsible for agency compliance; this officer is required to draft reports explaining both agency-specific guidelines and mechanisms.<br />
<br />
OMB published proposed guidelines pursuant to the IQA on June 28, 2001. [https://www.govinfo.gov/content/pkg/FR-2001-06-28/pdf/01-16227.pdf Proposed Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 34,489 (proposed June 28, 2001). Following public comment, OMB published interim final guidelines on September 28, 2001, [https://www.govinfo.gov/content/pkg/FR-2001-09-28/pdf/01-24172.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 49,718 (Sept. 28, 2001), and then finalized guidelines, after additional public comment, on February 22, 2002, [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 67 Fed. Reg. 8452 (Feb. 22, 2002). On October 1, 2002, the OMB guidelines went into effect, thus requiring agencies to issue, by the same date, their own guidelines detailing their agency-specific information quality standards and outlining administrative mechanisms for affected parties to challenge the quality of agency-disseminated information. Any information disseminated by agencies on or after October 1, 2002, is subject to the OMB and agency-specific information quality guidelines. Agency-specific guidelines may be found on the agency websites, in the ''Federal Register'', or on the OMB website.<br />
<br />
===Information Quality Guidelines=== <br />
The IQA aims to regulate “the sharing by Federal agencies of, and access to, information disseminated by Federal agencies.” The [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf OMB guidelines] define “information” as “any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms.” § V.5. This definition includes information posted on an agency web page, but excludes hyperlinks to information disseminated by sources outside the agency. Similarly, if an agency presents information in a manner clearly indicating that the information reflects an opinion-not a fact or an agency view-the information is not subject to the same information quality standards. The guidelines define “dissemination” as “agency initiated or sponsored distribution of information to the public” (§ V.8). The guidelines exclude from the definition of dissemination any distribution that is limited to “government employees or agency contractors or grantees; intra- or inter-agency use or sharing of government information; and responses to requests for agency records under the [[Freedom of Information Act]], the [[Privacy Act]], the [[Federal Advisory Committee Act]] or other similar law.” Further excluded are “correspondence with individuals or persons, press releases, archival records, public filings, [and] subpoenas or adjudicative processes.” § V.8.<br />
<br />
The IQA addresses the “quality, objectivity, utility, and integrity” of agency information. The OMB guidelines provide definitions for these terms. “Quality” encompasses utility, objectivity, and integrity. § V.1. “Utility” contemplates the usefulness of information for both the agency and the public such that “when transparency of information is relevant for assessing the information’s usefulness from the public’s perspective, the agency must take care to ensure that transparency has been addressed in its review of the information.” § V.2. “Integrity” refers to the safeguarding of information from unauthorized access or revision. § V.4. “Objectivity” focuses on whether information is substantively accurate, reliable, and unbiased and is presented in an accurate, clear, complete, and unbiased manner. §§ V.3.a-b.<br />
<br />
To satisfy the presentation prong of the objectivity requirement, agencies must present information in context, which may—depending on the sort of information—require providing additional information, sources, supporting data, models, sources of errors, and documentation. The substantive objectivity prong requires that scientific, financial, or statistical information be based on original and supporting data and analytic results produced using “sound statistical and research methods.” § V.3.b. The guidelines provide that information presumptively satisfies the substantive objectivity requirement if the relevant data and analytic results have undergone formal, independent, external peer review. § V.3.b.i. A presumption of objectivity is rebuttable if a petitioner persuasively demonstrates a lack of objectivity. If peer review is agency-sponsored, certain transparency requirements, such as the general criteria for competent and credible peer review recommended by OMB's Office of Information and Regulatory Affairs (OIRA) to the President's Management Council are triggered to ensure the peer review is adequate. § V.3.b.i. Agency-sponsored peer reviews must be open and rigorous, and peer reviewers must be selected primarily on the basis of necessary technical expertise, disclose to agencies any prior positions they may have taken on pertinent issues, and reveal sources of personal and institutional funding. § V.3.b.i. <br />
<br />
The objectivity standard—that information be “reproducible” to prove transparency—is more particular for information that falls into the category of “influential,” rather than ordinary, information. § V.3.b.ii.B. Information is influential if “the agency can reasonably determine that dissemination of the information will have or does have a clear and substantial impact on important public policies or important private sector decisions.” § V.9. Each agency may separately define “influential” to accord with “the nature and multiplicity of issues for which the agency is responsible.” § V.9. Agencies should consult with relevant scientific and technical communities on the feasibility of making certain categories of data subject to the reproducibility standard. § V.3.b.ii.A. Reproducibility in the analytic context demands that “independent analysis of the original or supporting data using identical methods would generate similar analytic results, subject to an acceptable degree of imprecision or error.” § V.10. The acceptable degree of imprecision changes to reflect the impacts the information may have. The reproducibility standard for other categories of data is set forth by individual agencies in their guidelines whenever they identify specific categories of information as subject to the reproducibility standard. § V.10.<br />
<br />
Compelling privacy interests, trade secrets, intellectual property, and other confidentiality protections take precedence over reproducibility and transparency requirements, in which case agencies must alternatively apply “especially rigorous robustness checks to analytic results and document what checks were undertaken.” § V.3.b.ii.B.i. Each agency determines the type and detail of robustness checks it conducts. Privacy interests notwithstanding, “[a]gency guidelines shall . . . in all cases, require a disclosure of the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed.” § V.3.b.ii.B.ii.<br />
<br />
Some categories of information are automatically subject to special information quality requirements under the OMB guidelines. Agencies disseminating vital health and medical information “shall interpret the reproducibility and peer-review standards in a manner appropriate to assuring the timely flow of vital information from agencies to medical providers, patients, health agencies, and the public.” § V.3.b.ii.C. Similarly, when agencies maintain and disseminate information with regard to analysis of risks to human health, safety, and the environment, they must “either adopt or adapt” the same information quality principle standards that apply to such information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996, [http://uscode.house.gov/statutes/pl/104/182.pdf Pub. L. No. 104-182]; 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section300g-1&num=0&edition=prelim § 300g-1(b)(3)(A)–(B)]. The option to “adapt” rather than “adopt” these standards provides agencies with flexibility in applying them. § V.3.b.ii.C.<br />
<br />
In urgent situations such as imminent threats to public health or homeland security an agency may temporarily waive information quality standards according to standards set forth in the agency’s own guidelines. § V.3.b.ii.C.<br />
<br />
===Administrative Mechanisms for Information Quality Challenges===<br />
<br />
The IQA and subsequent OMB guidelines require that agencies set forth in their guidelines an administrative process allowing affected parties to challenge agency-disseminated information that allegedly fails to meet the standards set forth in either the OMB guidelines or the disseminating agency’s guidelines. § III.3. In establishing these processes, agencies must specify limits on the time an agency may take to consider a challenge and provide for notification to the affected party regarding the agency’s decision. § III.3.i. Agency guidelines must also provide for an administrative appeal process to allow an affected party to seek reconsideration of an agency’s initial decision. § III.3.ii. The appeals mechanism must similarly incorporate specific limits on the time allowed for reconsideration.<br />
<br />
===Agency Reporting Requirements===<br />
<br />
Pursuant to the OMB guidelines, each agency was obligated to submit to OMB a report—following a draft report, public comment, and revisions—outlining its agency-specific information quality guidelines and how the guidelines ensure the quality of information, and also explaining the agency’s administrative mechanisms for allowing affected persons to seek correction of agency information that allegedly does not meet information quality standards. §§ IV.3-5. Following OMB review of the reports, agencies then had to post the reports on their respective websites and publish notice of the availability of the final reports in the ''Federal Register'' by October 1, 2002. § IV.5.<br />
<br />
Since January 1, 2004, agencies must report annually to the director of OMB the number and nature of complaints received by the agency regarding agency compliance with information quality guidelines. § IV.6. The first reports are included in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf OMB’s report to Congress]. OMB does not apparently publish subsequent reports, but the information for individual agencies is available through links to their websites from the OMB site.<br />
<br />
===Judicial Review===<br />
<br />
Attempts to obtain judicial review of agency compliance with the IQA and, in particular, of agency refusals to make requested corrections to disseminated information have been uniformly unsuccessful. An early case, [http://www.ca4.uscourts.gov/Opinions/051097.P.pdf Salt Institute v. Leavitt], 440 F.3d 156 (4th Cir. 2006), held the plaintiff did not have standing because the plaintiff was not injured by any failure of the agency to disseminate correct information, nor did the IQA create any individual right to correct information. ''See also'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/74C882991045080985257E580051699C/$file/12-1309-1555205.pdf Miss. Comm’n on Env't. Quality v. EPA], 790 F.3d 138 (D.C. Cir. 2015). Other cases have denied relief on different grounds. Because the IQA does not itself provide a cause of action, challenges to agency actions have been brought under the [[Administrative Procedure Act|Administrative Procedure Act]]. However, courts have been persuaded that either review of a denial of a correction request is precluded because it is committed to agency discretion by law, ''see, e.g.'', ''Styrene Info. & Resch. Ctr., Inc. v. Sebelius'', 944 F. Supp. 2d 71 (D.D.C. 2013), or that the denial is not a final agency action because it does not affect the rights or obligations of the requester, ''see, e.g.'', ''Single Stick, Inc. v. Johanns'', 601 F. Supp. 2d 307 (D.D.C. 2009), ''aff’d on other grounds'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/3D1E66C834321D4785257807005A9A8A/$file/09-5099-1236845.pdf Prime Time Int’l Co. v. Vilsack], 599 F.3d 678 (D.C. Cir. 2010).<br />
<br />
===Peer Review Bulletin===<br />
On January 14, 2005, OMB published notice in the ''Federal Register'' of its [https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review] (''Bulletin''), 70 Fed. Reg. 2664 (Jan. 14, 2005), after having released and solicited public comment on two previous drafts dated September 15, 2003, [https://www.govinfo.gov/content/pkg/FR-2003-09-15/pdf/03-23367.pdf 68 Fed. Reg. 54023], and April 28, 2004, [https://www.govinfo.gov/content/pkg/FR-2004-04-28/pdf/04-9572.pdf 69 Fed. Reg. 23230]. OMB issued the ''Bulletin'' under the IQA, Executive Order 12,866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review] 58 Fed. Reg. 51,35 (Oct. 4, 1993), and OMB’s authority to manage agencies under the President’s Constitutional authority to supervise the executive branch. OIRA oversees implementation of the ''Bulletin'' in consultation with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy] (OSTP). <br />
<br />
The ''Bulletin'' establishes governmentwide guidance for peer review of agency scientific information that will be disseminated. “Scientific information” includes “factual inputs, data, models, analyses, technical information, or scientific assessments based on the behavioral and social sciences, public health and medical sciences, life and earth sciences, engineering, or physical sciences.” § I.5. Under the ''Bulletin'', the definition of “dissemination” encompasses the IQA definition, but excludes research produced by government-funded scientists that does not represent agency views and displays a disclaimer to that effect. The definition also excludes information distributed for peer review and bearing a disclaimer stating that the information’s distribution is solely for the purpose of pre-dissemination peer review. § I.5.<br />
<br />
===Peer Review of Influential Scientific Information—Section II===<br />
<br />
Section II of the ''Bulletin'' mandates that agencies conduct peer reviews of influential scientific information intended for dissemination. The definition of “influential” is the same as that under the IQA. Section II grants agencies discretion to choose the reviewer selection process and the peer review mechanism. Reviewer selection must take into account reviewer expertise, the need for a balanced representation of perspectives, conflicts of interest, and the reviewers’ independence from the work product under review. § II.3. In choosing a peer review mechanism, the agency must consider the information’s novelty and complexity, importance to decision making, and prior peer review, as well as any benefits and costs of review. § II.4. Certain transparency requirements also apply to the peer review mechanism. The reviewers must have advance notice of how their comments will be conveyed. Reviewers must prepare a report describing their review, findings, and conclusions. The report must also provide the names and affiliations of the reviewers and “shall either (a) include a verbatim copy of each reviewer’s comments (either with or without specific attributions) or (b) represent the views of the group as a whole, including any disparate and dissenting views.” § II.5. The agency is required to post the report on its website along with all related materials, discuss the report in the preamble to any related rulemaking, and include the report in the administrative record behind any related agency action. § II.5.<br />
<br />
Agencies may commission independent entities to carry out reviewer selection and peer review. § II.6. Influential scientific information that has already undergone adequate peer review is exempt from the requirements of section II. Principal findings, recommendations, and conclusions in official reports of the National Academy of the Sciences are presumed to have undergone adequate peer review. § II.2.<br />
<br />
===Peer Review of Highly Influential Scientific Assessments—Section III===<br />
<br />
The ''Bulletin'' imposes requirements, in addition to the section II requirements, for the peer review of highly influential scientific assessments. A “scientific assessment” is “an evaluation of a body of scientific or technical knowledge that typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information.” § I.7. The term “highly influential” means that the agency or the OIRA Administrator determines that dissemination could have an impact of more than $500 million in any one year or will be “novel, controversial, or precedent-setting, or has significant interagency interest.” § III.2. The ''Bulletin'' provides that peer review of highly influential scientific assessments adhere to the following additional requirements:<br />
<br />
*Scientists employed by the sponsoring agency (outside of the peer review context) may not function as reviewers. An exception may be made if the agency determines that an agency scientist employed by a different agency of the Cabinet-level department possesses expertise essential to the review and does not hold a position of management or policy responsibility. The agency must obtain prior written approval on a nondelegable basis from the Secretary or Deputy Secretary to make such an exception. § III.3.c.<br />
*Absent an essential need, the same reviewer should not participate in multiple peer reviews. § III.3.d.<br />
*Reviewers must be provided information sufficient to enable them to understand the data, analytic procedures, and assumptions used to support the key findings or conclusions they are reviewing. § III.4.<br />
*If feasible and appropriate, the agency must make the draft scientific assessment available for public comment and sponsor a public meeting attended by the reviewers. The reviewers should then have access to the public comments pertaining to significant scientific or technical issues. § III.5.<br />
*“The peer review report shall include the charge to the reviewers and a short paragraph on both the credentials and relevant experiences of each peer reviewer.” § III.6. The agency must also write a response to the report to be posted on the agency’s website explaining the agency’s agreement or disagreement with the report, the actions the agency has undertaken or will undertake in response to the report, and, if applicable, the reasoning behind the choice of those actions. § III.6.<br />
<br />
===Additional Peer Review Guidelines=== <br />
<br />
Given a compelling rationale, the agency head may waive or defer the peer review requirements of sections II and III. § VIII.3. Additionally, instead of adhering to the requirements of sections II or III, an agency may ensure the quality of scientific information by relying on information from the National Academy of Sciences, commissioning the National Academy of Sciences to conduct the peer review, or undertaking alternative procedures approved by the OIRA Administrator in consultation with OSTP. § IV.<br />
<br />
“Peer review shall be conducted in a manner that respects (i) confidential business information and (ii) intellectual property.” § VIII.2. In disclosing information about a reviewer, the agency must comply with the requirements of the [[Privacy Act]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] as amended, and OMB [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A130/a130revised.pdf Circular A-130]. § VIII.1. Information relating to certain national security, foreign affairs, or negotiations involving international trade or treaties is exempt from the peer review requirements if adhering to the requirements would interfere with the need for secrecy or promptness. Similarly exempt is information disseminated in the course of an individual agency adjudication or permit proceeding (unless the agency determines that peer review is practical and appropriate and that the influential dissemination is scientifically or technically novel); time-sensitive health or safety information; regulatory impact analysis or regulatory flexibility analysis subject to interagency review under Executive Order 12866; routine statistical information released by federal statistical agencies; accounting, budget, actuarial, and financial information; and information disseminated in connection with routine rules that materially alter entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof. § IX.<br />
<br />
If an agency supports a regulatory action using information subject to the Bulletin, it must include in the administrative record, along with relevant materials, a certification explaining how the agency complied with the ''Bulletin''’s requirements. § VII.<br />
<br />
Agencies must post on their websites, and update at least biannually, an agenda providing descriptions of all planned and ongoing influential scientific information subject to the ''Bulletin'', links to documents made public pursuant to the ''Bulletin'', and a peer review plan for each entry. § V.2. Agencies must also establish a mechanism for allowing the public to comment on the adequacy of its peer review plans. Further, each agency is required to provide to OIRA, by December 15 of each year, a summary of the peer reviews conducted by the agency during the fiscal year. § VI.<br />
<br />
The Bulletin states that it “does not create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its agencies or other entities, its officers or employees, or any other person,” thereby seeking to avoid judicial review of agency compliance with the ''Bulletin''’s requirements. § XII.<br />
<br />
===Risk Assessment===<br />
<br />
In 1995, an interagency working group, co-chaired by OMB and OSTP, developed a set of principles to guide policymakers in assessing, managing, and communicating policies to address environmental, health, and safety risks. [https://georgewbush-whitehouse.archives.gov/omb/inforeg/regpol/jan1995_risk_analysis_principles.pdf Principles for Risk Analysis]. In 2006, OMB proposed to adopt uniform quality standards for agencies to adhere to in conducting risk assessments. However, in light of comments from agencies, the public, and the National Academy of Sciences, OMB decided not to adopt that proposal. Instead, in 2007 it issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. The 1995 Principles were divided into five parts: general principles, principles for risk assessment, principles for risk management, principles for risk communication, and priority setting. The 2007 Update reiterates those principles and further develops them in light of scientific advances in the previous 12 years.<br />
<br />
==Legislative History==<br />
<br />
On December 21, 2000, as a rider to the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]), Congress enacted the IQA, which requires OMB to develop guidelines that establish quality standards for information disseminated by federal agencies. Congress accepted the rider to the appropriations bill without any hearings, floor debate, or legislative history specific to the IQA. However, the IQA amends the 1995 [[Paperwork Reduction Act]]’s (PRA) information dissemination requirements, which have some legislative history. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim Section 3504(d)(1)] of the PRA provides: “With respect to information dissemination, the [OMB] Director shall develop and oversee the implementation of policies, principles, standards, and guidelines to apply to Federal agency dissemination of public information, regardless of the form or format in which such information is disseminated.”<br />
<br />
The legislative history that accompanies the 1995 PRA amendments explains that the amendments “promote[] the theme of improving the quality and use of information to strengthen agency decisionmaking and accountability and to maximize the benefit and utility of information created, collected, maintained, used, shared, disseminated, and retained by or for the Federal Government.” [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995). Prior to the enactment of the IQA, OMB had not implemented the PRA’s section 3504(d)(1) information dissemination requirements. On June 22, 1998, the House approved the FY 1999 Treasury, Postal Service, and General Government Appropriations Bill, which contained a non-binding provision that closely resembles the IQA in encouraging OMB to develop policy and procedural guidance to ensure information quality. [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998). That provision provided that:<blockquote>The Committee urges the Office of Management and Budget (OMB) to develop, with public and Federal agency involvement, rules providing policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies, and information disseminated by non-Federal entities with financial support from the Federal government, in fulfillment of the purposes and provisions of the [[Paperwork Reduction Act]] of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The Committee expects issuance of these rules by September 30, 1999. The OMB rules shall also cover the sharing of, and access to, the aforementioned data and information, by members of the public. Such OMB rules shall require Federal agencies to develop, within one year and with public participation, their own rules consistent with the OMB rules. The OMB and agency rules shall contain administrative mechanisms allowing affected persons to petition for correction of information which does not comply with such rules; and the OMB rules shall contain provisions requiring the agencies to report to OMB periodically regarding the number and nature of petitions or complaints regarding Federal, or Federally-supported, information dissemination, and how such petitions and complaints were handled. OMB shall report to the Committee on the status of implementation of these directives no later than September 30, 1999.</blockquote>Representative Jo Ann Emerson and Senator John Shelby are recognized as the principal sponsors of the IQA.<br />
<br />
===Source Note:===<br />
<br />
OMB maintains a [https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ website] with links to government documents relevant to the IQA. After receiving the first annual reports from agencies, OMB published them in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf a single OMB report] to Congress along with OMB’s summary of the data quality program.<br />
<br />
[http://thecre.com/quality/index.html The Center for Regulatory Effectiveness] also maintains an exhaustive and up-to-date archival site of documents relating to the IQA.<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995).<br />
*Treasury, Postal Service, and General Government Appropriations Bill, 1999, [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998).<br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking], § 5(e), 86 Fed. Reg. 8845 (Feb. 10, 2021).<br />
*Scientific Integrity Task Force, White House Office of Science and Technology Policy, [https://www.whitehouse.gov/wp-content/uploads/2022/01/01-22-Protecting_the_Integrity_of_Government_Science.pdf Protecting the Integrity of Government Science] (2022).<br />
*White House Office of Science and Technology Policy, [https://www.govinfo.gov/content/pkg/FR-2022-03-03/pdf/2022-04466.pdf Request for Information to Support the Development of a Federal Scientific Integrity Policy Framework], 87 FR 12165 (2022).<br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memoranda<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmcmemo.pdf Agency Final Information Quality Guidelines] (Sept. 5, 2002).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/pmc_graham_100402.pdf Executive Branch Information Quality Law] (Oct. 4, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmc_oct03report.pdf Guidance for the Information Quality Annual Agency Report to OMB] (Oct. 17, 2003).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info_quality_posting_083004.pdf Posting of Information Quality Correction Requests and Responses] (Aug. 30, 2004).<br />
**M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis] (Sept. 19, 2007).<br />
*Other Documents<br />
**Administrator Speech: [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info-quality_march21.pdf OMB’s Role in Overseeing Information Quality], Remarks to Public Workshop on Information-Quality Guidelines (Mar. 21, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf Information Quality: A Report to Congress], (Apr. 30, 2004).<br />
**[https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review], 70 Fed. Reg. 2664 (Jan. 14, 2005).<br />
**[https://www.govinfo.gov/content/pkg/FR-2006-01-17/pdf/E6-345.pdf Proposed Risk Assessment Bulletin], 71 Fed. Reg. 2600 (Jan 17, 2006).<br />
**M-19-15, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf Improving Implementation of the Information Quality Act] (Apr. 24, 2019).<br />
</div><br />
<br />
===Other Government Documents===<br />
<br />
*Gov’t Accountability Office, GAO-06-765, [https://www.gao.gov/assets/260/251202.pdf Information Quality Act: Expanded Oversight and Clearer Guidance by the Office of Management and Budget Could Improve Agencies’ Implementation of the Act] (2006).<br />
*Gov’t Accountability Office, GAO-16-110, [https://www.gao.gov/assets/680/674386.pdf Information Quality Act: Actions Needed to Improve Transparency and Reporting of Correction Requests] (2015).<br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Daren Bakst, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3753181 Strengthening the Information Quality Act to Improve Federally Disseminated Public Health Information], 75 Food Drug L.J. 234 (2020).<br />
*Karl Bourdeau, ''Information Quality Act Challenges to Flawed Use of Science'', 19 Nat. Resources & Env’t 41 (2005).<br />
*James W. Conrad, Jr., ''The Information Quality Act—Antiregulatory Costs of Mythic Proportions?'', 12 Kan. J.L. & Pub. Pol’y 521 (2003).<br />
*Nathan Cortez, [http://lawreview.colorado.edu/wp-content/uploads/2018/05/Cortez-Regulation-by-Database.pdf Regulation by Database], 89 U. Colo. L. Rev. 1 (2018).<br />
*Alexander Nathan Hecht, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1119&context=jleg Administrative Process in an Information Age: The Transformation of Agency Action Under the Data Quality Act], 31 J. Legis. 233 (2005).<br />
*Stephen M. Johnson, ''Junking the “Junk Science” Law: Reforming the Information Quality Act'', 58 Admin. L. Rev. 37 (2006).<br />
*Stephen M. Johnson, [https://scholarship.law.edu/cgi/viewcontent.cgi?article=1188&context=lawreview Ruminations on Dissemination: Limits on Administrative and Judicial Review Under the Information Quality Act], 55 Cath. U. L. Rev. 59 (2005).<br />
*Michelle V. Lacko, Comment, ''The Data Quality Act: Prologue to a Farce or a Tragedy?'', 53 Emory L.J. 305 (2004).<br />
*Harold Magistrale, ''An Introduction to the Information Quality Act and Its Application to Environmental Regulation'', 38 Urb. Law. 561 (2006).<br />
*Paul R. Noe & John D. Graham, ''The Ascendancy of the Cost-Benefit State?'', 5 ALR Accord 85 (2020).<br />
*Kirk T. O’Reilly, ''Science, Policy, and Politics: The Impact of the Information Quality Act on Risk-Based Regulatory Activity at the EPA'', 14 Buff. Envtl. L.J. 249 (2007)<br />
*Kellen Ressmeyer, Note, [http://www.fclj.org/wp-content/uploads/2013/01/12-RessmeyerFINAL.pdf The Information Quality Act: The Little Statute that Could (or Couldn’t?): Applying the Safe Drinking Water Act Amendments of 1996 to the Federal Communications Commission], 59 Fed. Comm. L.J. 219 (2006).<br />
*Sidney A. Shapiro, [https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1153&context=wmelpr The Information Quality Act and Environmental Protection: The Perils of Reform by Appropriations Rider], 28 Wm. & Mary Envtl. L. & Pol’y Rev. 339 (2004).<br />
*Tammy P. Tideswell, [http://www.jag.navy.mil/documents/navylawreview/NLRVolume51.pdf The Information Quality Act: An Environmental Primer], 51 Naval L. Rev. 91 (2005).<br />
*Wendy E. Wagner, [https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1282&context=jlp Importing Daubert to Administrative Agencies Through the Information Quality Act], 12 J.L. & Pol’y 589 (2004).<br />
</div><br />
<br />
==Statutory Provisions==<br />
<br />
Information Quality Act <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 44 U.S.C. § 3516 note]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Information_Quality_Act&diff=1657Information Quality Act2023-08-12T21:35:08Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 3516 note] (2012); enacted by [https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554 § 515], 114 Stat. 2763, 2763A-153, Dec. 21, 2000.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ Office of Management and Budget, Office of Information and Regulatory Affairs, Information Policy]<br />
<br />
==Overview==<br />
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The Information Quality Act (IQA), also frequently termed the Data Quality Act, mandates the establishment of guidelines “ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated” by agencies. The IQA consists of a brief provision in the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]) and amends the 1995 [[Paperwork Reduction Act]] (PRA) ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The amendment directs the [https://www.whitehouse.gov/omb/ Office of Management and Budget] (OMB) to issue policy and procedural guidance to federal agencies that are subject to the PRA. The IQA requires OMB to guide agencies in (1) issuing their own data quality guidelines to regulate agency use and dissemination of information; (2) developing administrative mechanisms so that affected parties may seek correction of information that does not comply with information quality guidelines; and (3) making periodic reports to OMB on the number, nature, and resolution of any complaints the agencies receive concerning their failure to comply with either OMB or agency-specific information quality guidelines. An agency must also delegate a Chief Information Officer or similar official to be responsible for agency compliance; this officer is required to draft reports explaining both agency-specific guidelines and mechanisms.<br />
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OMB published proposed guidelines pursuant to the IQA on June 28, 2001. [https://www.govinfo.gov/content/pkg/FR-2001-06-28/pdf/01-16227.pdf Proposed Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 34,489 (proposed June 28, 2001). Following public comment, OMB published interim final guidelines on September 28, 2001, [https://www.govinfo.gov/content/pkg/FR-2001-09-28/pdf/01-24172.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 49,718 (Sept. 28, 2001), and then finalized guidelines, after additional public comment, on February 22, 2002, [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 67 Fed. Reg. 8452 (Feb. 22, 2002). On October 1, 2002, the OMB guidelines went into effect, thus requiring agencies to issue, by the same date, their own guidelines detailing their agency-specific information quality standards and outlining administrative mechanisms for affected parties to challenge the quality of agency-disseminated information. Any information disseminated by agencies on or after October 1, 2002, is subject to the OMB and agency-specific information quality guidelines. Agency-specific guidelines may be found on the agency websites, in the ''Federal Register'', or on the OMB website.<br />
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===Information Quality Guidelines=== <br />
The IQA aims to regulate “the sharing by Federal agencies of, and access to, information disseminated by Federal agencies.” The [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf OMB guidelines] define “information” as “any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms.” § V.5. This definition includes information posted on an agency web page, but excludes hyperlinks to information disseminated by sources outside the agency. Similarly, if an agency presents information in a manner clearly indicating that the information reflects an opinion-not a fact or an agency view-the information is not subject to the same information quality standards. The guidelines define “dissemination” as “agency initiated or sponsored distribution of information to the public” (§ V.8). The guidelines exclude from the definition of dissemination any distribution that is limited to “government employees or agency contractors or grantees; intra- or inter-agency use or sharing of government information; and responses to requests for agency records under the [[Freedom of Information Act]], the [[Privacy Act]], the [[Federal Advisory Committee Act]] or other similar law.” Further excluded are “correspondence with individuals or persons, press releases, archival records, public filings, [and] subpoenas or adjudicative processes.” § V.8.<br />
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The IQA addresses the “quality, objectivity, utility, and integrity” of agency information. The OMB guidelines provide definitions for these terms. “Quality” encompasses utility, objectivity, and integrity. § V.1. “Utility” contemplates the usefulness of information for both the agency and the public such that “when transparency of information is relevant for assessing the information’s usefulness from the public’s perspective, the agency must take care to ensure that transparency has been addressed in its review of the information.” § V.2. “Integrity” refers to the safeguarding of information from unauthorized access or revision. § V.4. “Objectivity” focuses on whether information is substantively accurate, reliable, and unbiased and is presented in an accurate, clear, complete, and unbiased manner. §§ V.3.a-b.<br />
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To satisfy the presentation prong of the objectivity requirement, agencies must present information in context, which may—depending on the sort of information—require providing additional information, sources, supporting data, models, sources of errors, and documentation. The substantive objectivity prong requires that scientific, financial, or statistical information be based on original and supporting data and analytic results produced using “sound statistical and research methods.” § V.3.b. The guidelines provide that information presumptively satisfies the substantive objectivity requirement if the relevant data and analytic results have undergone formal, independent, external peer review. § V.3.b.i. A presumption of objectivity is rebuttable if a petitioner persuasively demonstrates a lack of objectivity. If peer review is agency-sponsored, certain transparency requirements, such as the general criteria for competent and credible peer review recommended by OMB's Office of Information and Regulatory Affairs (OIRA) to the President's Management Council are triggered to ensure the peer review is adequate. § V.3.b.i. Agency-sponsored peer reviews must be open and rigorous, and peer reviewers must be selected primarily on the basis of necessary technical expertise, disclose to agencies any prior positions they may have taken on pertinent issues, and reveal sources of personal and institutional funding. § V.3.b.i. <br />
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The objectivity standard—that information be “reproducible” to prove transparency—is more particular for information that falls into the category of “influential,” rather than ordinary, information. § V.3.b.ii.B. Information is influential if “the agency can reasonably determine that dissemination of the information will have or does have a clear and substantial impact on important public policies or important private sector decisions.” § V.9. Each agency may separately define “influential” to accord with “the nature and multiplicity of issues for which the agency is responsible.” § V.9. Agencies should consult with relevant scientific and technical communities on the feasibility of making certain categories of data subject to the reproducibility standard. § V.3.b.ii.A. Reproducibility in the analytic context demands that “independent analysis of the original or supporting data using identical methods would generate similar analytic results, subject to an acceptable degree of imprecision or error.” § V.10. The acceptable degree of imprecision changes to reflect the impacts the information may have. The reproducibility standard for other categories of data is set forth by individual agencies in their guidelines whenever they identify specific categories of information as subject to the reproducibility standard. § V.10.<br />
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Compelling privacy interests, trade secrets, intellectual property, and other confidentiality protections take precedence over reproducibility and transparency requirements, in which case agencies must alternatively apply “especially rigorous robustness checks to analytic results and document what checks were undertaken.” § V.3.b.ii.B.i. Each agency determines the type and detail of robustness checks it conducts. Privacy interests notwithstanding, “[a]gency guidelines shall . . . in all cases, require a disclosure of the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed.” § V.3.b.ii.B.ii.<br />
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Some categories of information are automatically subject to special information quality requirements under the OMB guidelines. Agencies disseminating vital health and medical information “shall interpret the reproducibility and peer-review standards in a manner appropriate to assuring the timely flow of vital information from agencies to medical providers, patients, health agencies, and the public.” § V.3.b.ii.C. Similarly, when agencies maintain and disseminate information with regard to analysis of risks to human health, safety, and the environment, they must “either adopt or adapt” the same information quality principle standards that apply to such information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996, [http://uscode.house.gov/statutes/pl/104/182.pdf Pub. L. No. 104-182]; 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section300g-1&num=0&edition=prelim § 300g-1(b)(3)(A)–(B)]. The option to “adapt” rather than “adopt” these standards provides agencies with flexibility in applying them. § V.3.b.ii.C.<br />
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In urgent situations such as imminent threats to public health or homeland security an agency may temporarily waive information quality standards according to standards set forth in the agency’s own guidelines. § V.3.b.ii.C.<br />
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===Administrative Mechanisms for Information Quality Challenges===<br />
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The IQA and subsequent OMB guidelines require that agencies set forth in their guidelines an administrative process allowing affected parties to challenge agency-disseminated information that allegedly fails to meet the standards set forth in either the OMB guidelines or the disseminating agency’s guidelines. § III.3. In establishing these processes, agencies must specify limits on the time an agency may take to consider a challenge and provide for notification to the affected party regarding the agency’s decision. § III.3.i. Agency guidelines must also provide for an administrative appeal process to allow an affected party to seek reconsideration of an agency’s initial decision. § III.3.ii. The appeals mechanism must similarly incorporate specific limits on the time allowed for reconsideration.<br />
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===Agency Reporting Requirements===<br />
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Pursuant to the OMB guidelines, each agency was obligated to submit to OMB a report—following a draft report, public comment, and revisions—outlining its agency-specific information quality guidelines and how the guidelines ensure the quality of information, and also explaining the agency’s administrative mechanisms for allowing affected persons to seek correction of agency information that allegedly does not meet information quality standards. §§ IV.3-5. Following OMB review of the reports, agencies then had to post the reports on their respective websites and publish notice of the availability of the final reports in the ''Federal Register'' by October 1, 2002. § IV.5.<br />
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Since January 1, 2004, agencies must report annually to the director of OMB the number and nature of complaints received by the agency regarding agency compliance with information quality guidelines. § IV.6. The first reports are included in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf OMB’s report to Congress]. OMB does not apparently publish subsequent reports, but the information for individual agencies is available through links to their websites from the OMB site.<br />
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===Judicial Review===<br />
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Attempts to obtain judicial review of agency compliance with the IQA and, in particular, of agency refusals to make requested corrections to disseminated information have been uniformly unsuccessful. An early case, [http://www.ca4.uscourts.gov/Opinions/051097.P.pdf Salt Institute v. Leavitt], 440 F.3d 156 (4th Cir. 2006), held the plaintiff did not have standing because the plaintiff was not injured by any failure of the agency to disseminate correct information, nor did the IQA create any individual right to correct information. ''See also'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/74C882991045080985257E580051699C/$file/12-1309-1555205.pdf Miss. Comm’n on Env't. Quality v. EPA], 790 F.3d 138 (D.C. Cir. 2015). Other cases have denied relief on different grounds. Because the IQA does not itself provide a cause of action, challenges to agency actions have been brought under the [[Administrative Procedure Act|Administrative Procedure Act]]. However, courts have been persuaded that either review of a denial of a correction request is precluded because it is committed to agency discretion by law, ''see, e.g.'', ''Styrene Info. & Resch. Ctr., Inc. v. Sebelius'', 944 F. Supp. 2d 71 (D.D.C. 2013), or that the denial is not a final agency action because it does not affect the rights or obligations of the requester, ''see, e.g.'', ''Single Stick, Inc. v. Johanns'', 601 F. Supp. 2d 307 (D.D.C. 2009), ''aff’d on other grounds'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/3D1E66C834321D4785257807005A9A8A/$file/09-5099-1236845.pdf Prime Time Int’l Co. v. Vilsack], 599 F.3d 678 (D.C. Cir. 2010).<br />
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===Peer Review Bulletin===<br />
On January 14, 2005, OMB published notice in the ''Federal Register'' of its [https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review] (''Bulletin''), 70 Fed. Reg. 2664 (Jan. 14, 2005), after having released and solicited public comment on two previous drafts dated September 15, 2003, [https://www.govinfo.gov/content/pkg/FR-2003-09-15/pdf/03-23367.pdf 68 Fed. Reg. 54023], and April 28, 2004, [https://www.govinfo.gov/content/pkg/FR-2004-04-28/pdf/04-9572.pdf 69 Fed. Reg. 23230]. OMB issued the ''Bulletin'' under the IQA, Executive Order 12,866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review] 58 Fed. Reg. 51,35 (Oct. 4, 1993), and OMB’s authority to manage agencies under the President’s Constitutional authority to supervise the executive branch. OIRA oversees implementation of the ''Bulletin'' in consultation with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy] (OSTP). <br />
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The ''Bulletin'' establishes governmentwide guidance for peer review of agency scientific information that will be disseminated. “Scientific information” includes “factual inputs, data, models, analyses, technical information, or scientific assessments based on the behavioral and social sciences, public health and medical sciences, life and earth sciences, engineering, or physical sciences.” § I.5. Under the ''Bulletin'', the definition of “dissemination” encompasses the IQA definition, but excludes research produced by government-funded scientists that does not represent agency views and displays a disclaimer to that effect. The definition also excludes information distributed for peer review and bearing a disclaimer stating that the information’s distribution is solely for the purpose of pre-dissemination peer review. § I.5.<br />
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===Peer Review of Influential Scientific Information—Section II===<br />
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Section II of the ''Bulletin'' mandates that agencies conduct peer reviews of influential scientific information intended for dissemination. The definition of “influential” is the same as that under the IQA. Section II grants agencies discretion to choose the reviewer selection process and the peer review mechanism. Reviewer selection must take into account reviewer expertise, the need for a balanced representation of perspectives, conflicts of interest, and the reviewers’ independence from the work product under review. § II.3. In choosing a peer review mechanism, the agency must consider the information’s novelty and complexity, importance to decision making, and prior peer review, as well as any benefits and costs of review. § II.4. Certain transparency requirements also apply to the peer review mechanism. The reviewers must have advance notice of how their comments will be conveyed. Reviewers must prepare a report describing their review, findings, and conclusions. The report must also provide the names and affiliations of the reviewers and “shall either (a) include a verbatim copy of each reviewer’s comments (either with or without specific attributions) or (b) represent the views of the group as a whole, including any disparate and dissenting views.” § II.5. The agency is required to post the report on its website along with all related materials, discuss the report in the preamble to any related rulemaking, and include the report in the administrative record behind any related agency action. § II.5.<br />
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Agencies may commission independent entities to carry out reviewer selection and peer review (§ II.6). Influential scientific information that has already undergone adequate peer review is exempt from the requirements of section II. Principal findings, recommendations, and conclusions in official reports of the National Academy of the Sciences are presumed to have undergone adequate peer review (§ II.2).<br />
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===Peer Review of Highly Influential Scientific Assessments—Section III===<br />
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The ''Bulletin'' imposes requirements, in addition to the section II requirements, for the peer review of highly influential scientific assessments. A “scientific assessment” is “an evaluation of a body of scientific or technical knowledge that typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information” (§ I.7). The term “highly influential” means that the agency or the OIRA Administrator determines that dissemination could have an impact of more than $500 million in any one year or will be “novel, controversial, or precedent-setting, or has significant interagency interest” (§ III.2). The ''Bulletin'' provides that peer review of highly influential scientific assessments adhere to the following additional requirements:<br />
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*Scientists employed by the sponsoring agency (outside of the peer review context) may not function as reviewers. An exception may be made if the agency determines that an agency scientist employed by a different agency of the Cabinet-level department possesses expertise essential to the review and does not hold a position of management or policy responsibility. The agency must obtain prior written approval on a nondelegable basis from the Secretary or Deputy Secretary to make such an exception (§ III.3.c).<br />
*Absent an essential need, the same reviewer should not participate in multiple peer reviews (§ III.3.d).<br />
*Reviewers must be provided information sufficient to enable them to understand the data, analytic procedures, and assumptions used to support the key findings or conclusions they are reviewing (§ III.4).<br />
*If feasible and appropriate, the agency must make the draft scientific assessment available for public comment and sponsor a public meeting attended by the reviewers. The reviewers should then have access to the public comments pertaining to significant scientific or technical issues (§ III.5).<br />
*“The peer review report shall include the charge to the reviewers and a short paragraph on both the credentials and relevant experiences of each peer reviewer” (§ III.6). The agency must also write a response to the report to be posted on the agency’s website explaining the agency’s agreement or disagreement with the report, the actions the agency has undertaken or will undertake in response to the report, and, if applicable, the reasoning behind the choice of those actions (§ III.6).<br />
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===Additional Peer Review Guidelines=== <br />
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Given a compelling rationale, the agency head may waive or defer the peer review requirements of sections II and III (§ VIII.3). Additionally, instead of adhering to the requirements of sections II or III, an agency may ensure the quality of scientific information by relying on information from the National Academy of Sciences, commissioning the National Academy of Sciences to conduct the peer review, or undertaking alternative procedures approved by the OIRA Administrator in consultation with OSTP (§ IV).<br />
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“Peer review shall be conducted in a manner that respects (i) confidential business information and (ii) intellectual property” (§ VIII.2). In disclosing information about a reviewer, the agency must comply with the requirements of the [[Privacy Act]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] as amended, and OMB [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (§ VIII.1). Information relating to certain national security, foreign affairs, or negotiations involving international trade or treaties is exempt from the peer review requirements if adhering to the requirements would interfere with the need for secrecy or promptness. Similarly exempt is information disseminated in the course of an individual agency adjudication or permit proceeding (unless the agency determines that peer review is practical and appropriate and that the influential dissemination is scientifically or technically novel); time-sensitive health or safety information; regulatory impact analysis or regulatory flexibility analysis subject to interagency review under Executive Order 12866; routine statistical information released by federal statistical agencies; accounting, budget, actuarial, and financial information; and information disseminated in connection with routine rules that materially alter entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof (§ IX).<br />
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If an agency supports a regulatory action using information subject to the Bulletin, it must include in the administrative record, along with relevant materials, a certification explaining how the agency complied with the ''Bulletin''’s requirements (§ VII).<br />
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Agencies must post on their websites, and update at least biannually, an agenda providing descriptions of all planned and ongoing influential scientific information subject to the ''Bulletin'', links to documents made public pursuant to the ''Bulletin'', and a peer review plan for each entry (§ V.2). Agencies must also establish a mechanism for allowing the public to comment on the adequacy of its peer review plans. Further, each agency is required to provide to OIRA, by December 15 of each year, a summary of the peer reviews conducted by the agency during the fiscal year (§ VI).<br />
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The Bulletin states that it “does not create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its agencies or other entities, its officers or employees, or any other person” (§ XII), thereby seeking to avoid judicial review of agency compliance with the ''Bulletin''’s requirements.<br />
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===Risk Assessment===<br />
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In 1995, an interagency working group, co-chaired by OMB and OSTP, developed a set of principles to guide policymakers in assessing, managing, and communicating policies to address environmental, health, and safety risks. [https://georgewbush-whitehouse.archives.gov/omb/inforeg/regpol/jan1995_risk_analysis_principles.pdf Principles for Risk Analysis]. In 2006, OMB proposed to adopt uniform quality standards for agencies to adhere to in conducting risk assessments. However, in light of comments from agencies, the public, and the National Academy of Sciences, OMB decided not to adopt that proposal. Instead, in 2007 it issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. The 1995 Principles were divided into five parts: general principles, principles for risk assessment, principles for risk management, principles for risk communication, and priority setting. The 2007 Update reiterates those principles and further develops them in light of scientific advances in the previous 12 years.<br />
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==Legislative History==<br />
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On December 21, 2000, as a rider to the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]), Congress enacted the IQA, which requires OMB to develop guidelines that establish quality standards for information disseminated by federal agencies. Congress accepted the rider to the appropriations bill without any hearings, floor debate, or legislative history specific to the IQA. However, the IQA amends the 1995 [[Paperwork Reduction Act]]’s (PRA) information dissemination requirements, which have some legislative history. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim Section 3504(d)(1)] of the PRA provides: “With respect to information dissemination, the [OMB] Director shall develop and oversee the implementation of policies, principles, standards, and guidelines to apply to Federal agency dissemination of public information, regardless of the form or format in which such information is disseminated.”<br />
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The legislative history that accompanies the 1995 PRA amendments explains that the amendments “promote[] the theme of improving the quality and use of information to strengthen agency decisionmaking and accountability and to maximize the benefit and utility of information created, collected, maintained, used, shared, disseminated, and retained by or for the Federal Government.” [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995). Prior to the enactment of the IQA, OMB had not implemented the PRA’s section 3504(d)(1) information dissemination requirements. On June 22, 1998, the House approved the FY 1999 Treasury, Postal Service, and General Government Appropriations Bill, which contained a non-binding provision that closely resembles the IQA in encouraging OMB to develop policy and procedural guidance to ensure information quality. [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998). That provision provided that:<blockquote>The Committee urges the Office of Management and Budget (OMB) to develop, with public and Federal agency involvement, rules providing policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies, and information disseminated by non-Federal entities with financial support from the Federal government, in fulfillment of the purposes and provisions of the [[Paperwork Reduction Act]] of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The Committee expects issuance of these rules by September 30, 1999. The OMB rules shall also cover the sharing of, and access to, the aforementioned data and information, by members of the public. Such OMB rules shall require Federal agencies to develop, within one year and with public participation, their own rules consistent with the OMB rules. The OMB and agency rules shall contain administrative mechanisms allowing affected persons to petition for correction of information which does not comply with such rules; and the OMB rules shall contain provisions requiring the agencies to report to OMB periodically regarding the number and nature of petitions or complaints regarding Federal, or Federally-supported, information dissemination, and how such petitions and complaints were handled. OMB shall report to the Committee on the status of implementation of these directives no later than September 30, 1999.</blockquote>Representative Jo Ann Emerson and Senator John Shelby are recognized as the principal sponsors of the IQA.<br />
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===Source Note:===<br />
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OMB maintains a [https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ website] with links to government documents relevant to the IQA. After receiving the first annual reports from agencies, OMB published them in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf a single OMB report] to Congress along with OMB’s summary of the data quality program.<br />
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[http://thecre.com/quality/index.html The Center for Regulatory Effectiveness] also maintains an exhaustive and up-to-date archival site of documents relating to the IQA.<br />
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==Bibliography==<br />
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===Legislative History and Congressional Documents===<br />
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*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995).<br />
*Treasury, Postal Service, and General Government Appropriations Bill, 1999, [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998).<br />
<br />
===Executive Orders and White House Documents===<br />
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*[https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking], § 5(e), 86 Fed. Reg. 8845 (Feb. 10, 2021).<br />
*Scientific Integrity Task Force, White House Office of Science and Technology Policy, [https://www.whitehouse.gov/wp-content/uploads/2022/01/01-22-Protecting_the_Integrity_of_Government_Science.pdf Protecting the Integrity of Government Science] (2022).<br />
*White House Office of Science and Technology Policy, [https://www.govinfo.gov/content/pkg/FR-2022-03-03/pdf/2022-04466.pdf Request for Information to Support the Development of a Federal Scientific Integrity Policy Framework], 87 FR 12165 (2022).<br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memoranda<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmcmemo.pdf Agency Final Information Quality Guidelines] (Sept. 5, 2002).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/pmc_graham_100402.pdf Executive Branch Information Quality Law] (Oct. 4, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmc_oct03report.pdf Guidance for the Information Quality Annual Agency Report to OMB] (Oct. 17, 2003).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info_quality_posting_083004.pdf Posting of Information Quality Correction Requests and Responses] (Aug. 30, 2004).<br />
**M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis] (Sept. 19, 2007).<br />
*Other Documents<br />
**Administrator Speech: [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info-quality_march21.pdf OMB’s Role in Overseeing Information Quality], Remarks to Public Workshop on Information-Quality Guidelines (Mar. 21, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf Information Quality: A Report to Congress], (Apr. 30, 2004).<br />
**[https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review], 70 Fed. Reg. 2664 (Jan. 14, 2005).<br />
**[https://www.govinfo.gov/content/pkg/FR-2006-01-17/pdf/E6-345.pdf Proposed Risk Assessment Bulletin], 71 Fed. Reg. 2600 (Jan 17, 2006).<br />
**M-19-15, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf Improving Implementation of the Information Quality Act] (Apr. 24, 2019).<br />
</div><br />
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===Other Government Documents===<br />
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*Gov’t Accountability Office, GAO-06-765, [https://www.gao.gov/assets/260/251202.pdf Information Quality Act: Expanded Oversight and Clearer Guidance by the Office of Management and Budget Could Improve Agencies’ Implementation of the Act] (2006).<br />
*Gov’t Accountability Office, GAO-16-110, [https://www.gao.gov/assets/680/674386.pdf Information Quality Act: Actions Needed to Improve Transparency and Reporting of Correction Requests] (2015).<br />
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===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Daren Bakst, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3753181 Strengthening the Information Quality Act to Improve Federally Disseminated Public Health Information], 75 Food Drug L.J. 234 (2020).<br />
*Karl Bourdeau, ''Information Quality Act Challenges to Flawed Use of Science'', 19 Nat. Resources & Env’t 41 (2005).<br />
*James W. Conrad, Jr., ''The Information Quality Act—Antiregulatory Costs of Mythic Proportions?'', 12 Kan. J.L. & Pub. Pol’y 521 (2003).<br />
*Nathan Cortez, [http://lawreview.colorado.edu/wp-content/uploads/2018/05/Cortez-Regulation-by-Database.pdf Regulation by Database], 89 U. Colo. L. Rev. 1 (2018).<br />
*Alexander Nathan Hecht, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1119&context=jleg Administrative Process in an Information Age: The Transformation of Agency Action Under the Data Quality Act], 31 J. Legis. 233 (2005).<br />
*Stephen M. Johnson, ''Junking the “Junk Science” Law: Reforming the Information Quality Act'', 58 Admin. L. Rev. 37 (2006).<br />
*Stephen M. Johnson, [https://scholarship.law.edu/cgi/viewcontent.cgi?article=1188&context=lawreview Ruminations on Dissemination: Limits on Administrative and Judicial Review Under the Information Quality Act], 55 Cath. U. L. Rev. 59 (2005).<br />
*Michelle V. Lacko, Comment, ''The Data Quality Act: Prologue to a Farce or a Tragedy?'', 53 Emory L.J. 305 (2004).<br />
*Harold Magistrale, ''An Introduction to the Information Quality Act and Its Application to Environmental Regulation'', 38 Urb. Law. 561 (2006).<br />
*Paul R. Noe & John D. Graham, ''The Ascendancy of the Cost-Benefit State?'', 5 ALR Accord 85 (2020).<br />
*Kirk T. O’Reilly, ''Science, Policy, and Politics: The Impact of the Information Quality Act on Risk-Based Regulatory Activity at the EPA'', 14 Buff. Envtl. L.J. 249 (2007)<br />
*Kellen Ressmeyer, Note, [http://www.fclj.org/wp-content/uploads/2013/01/12-RessmeyerFINAL.pdf The Information Quality Act: The Little Statute that Could (or Couldn’t?): Applying the Safe Drinking Water Act Amendments of 1996 to the Federal Communications Commission], 59 Fed. Comm. L.J. 219 (2006).<br />
*Sidney A. Shapiro, [https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1153&context=wmelpr The Information Quality Act and Environmental Protection: The Perils of Reform by Appropriations Rider], 28 Wm. & Mary Envtl. L. & Pol’y Rev. 339 (2004).<br />
*Tammy P. Tideswell, [http://www.jag.navy.mil/documents/navylawreview/NLRVolume51.pdf The Information Quality Act: An Environmental Primer], 51 Naval L. Rev. 91 (2005).<br />
*Wendy E. Wagner, [https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1282&context=jlp Importing Daubert to Administrative Agencies Through the Information Quality Act], 12 J.L. & Pol’y 589 (2004).<br />
</div><br />
<br />
==Statutory Provisions==<br />
<br />
Information Quality Act <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 44 U.S.C. § 3516 note]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Information_Quality_Act&diff=1656Information Quality Act2023-08-12T21:32:52Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 3516 note] (2012); enacted by [https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554 § 515], 114 Stat. 2763, 2763A-153, Dec. 21, 2000.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ Office of Management and Budget, Office of Information and Regulatory Affairs, Information Policy]<br />
<br />
==Overview==<br />
<br />
The Information Quality Act (IQA), also frequently termed the Data Quality Act, mandates the establishment of guidelines “ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated” by agencies. The IQA consists of a brief provision in the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]) and amends the 1995 [[Paperwork Reduction Act]] (PRA) ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The amendment directs the [https://www.whitehouse.gov/omb/ Office of Management and Budget] (OMB) to issue policy and procedural guidance to federal agencies that are subject to the PRA. The IQA requires OMB to guide agencies in (1) issuing their own data quality guidelines to regulate agency use and dissemination of information; (2) developing administrative mechanisms so that affected parties may seek correction of information that does not comply with information quality guidelines; and (3) making periodic reports to OMB on the number, nature, and resolution of any complaints the agencies receive concerning their failure to comply with either OMB or agency-specific information quality guidelines. An agency must also delegate a Chief Information Officer or similar official to be responsible for agency compliance; this officer is required to draft reports explaining both agency-specific guidelines and mechanisms.<br />
<br />
OMB published proposed guidelines pursuant to the IQA on June 28, 2001. [https://www.govinfo.gov/content/pkg/FR-2001-06-28/pdf/01-16227.pdf Proposed Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 34,489 (proposed June 28, 2001). Following public comment, OMB published interim final guidelines on September 28, 2001, [https://www.govinfo.gov/content/pkg/FR-2001-09-28/pdf/01-24172.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 49,718 (Sept. 28, 2001), and then finalized guidelines, after additional public comment, on February 22, 2002, [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 67 Fed. Reg. 8452 (Feb. 22, 2002). On October 1, 2002, the OMB guidelines went into effect, thus requiring agencies to issue, by the same date, their own guidelines detailing their agency-specific information quality standards and outlining administrative mechanisms for affected parties to challenge the quality of agency-disseminated information. Any information disseminated by agencies on or after October 1, 2002, is subject to the OMB and agency-specific information quality guidelines. Agency-specific guidelines may be found on the agency websites, in the ''Federal Register'', or on the OMB website.<br />
<br />
===Information Quality Guidelines=== <br />
The IQA aims to regulate “the sharing by Federal agencies of, and access to, information disseminated by Federal agencies.” The [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf OMB guidelines] define “information” as “any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms.” § V.5. This definition includes information posted on an agency web page, but excludes hyperlinks to information disseminated by sources outside the agency. Similarly, if an agency presents information in a manner clearly indicating that the information reflects an opinion-not a fact or an agency view-the information is not subject to the same information quality standards. The guidelines define “dissemination” as “agency initiated or sponsored distribution of information to the public” (§ V.8). The guidelines exclude from the definition of dissemination any distribution that is limited to “government employees or agency contractors or grantees; intra- or inter-agency use or sharing of government information; and responses to requests for agency records under the [[Freedom of Information Act]], the [[Privacy Act]], the [[Federal Advisory Committee Act]] or other similar law.” Further excluded are “correspondence with individuals or persons, press releases, archival records, public filings, [and] subpoenas or adjudicative processes.” § V.8.<br />
<br />
The IQA addresses the “quality, objectivity, utility, and integrity” of agency information. The OMB guidelines provide definitions for these terms. “Quality” encompasses utility, objectivity, and integrity. § V.1. “Utility” contemplates the usefulness of information for both the agency and the public such that “when transparency of information is relevant for assessing the information’s usefulness from the public’s perspective, the agency must take care to ensure that transparency has been addressed in its review of the information.” § V.2. “Integrity” refers to the safeguarding of information from unauthorized access or revision. § V.4. “Objectivity” focuses on whether information is substantively accurate, reliable, and unbiased and is presented in an accurate, clear, complete, and unbiased manner. §§ V.3.a-b.<br />
<br />
To satisfy the presentation prong of the objectivity requirement, agencies must present information in context, which may—depending on the sort of information—require providing additional information, sources, supporting data, models, sources of errors, and documentation. The substantive objectivity prong requires that scientific, financial, or statistical information be based on original and supporting data and analytic results produced using “sound statistical and research methods.” § V.3.b. The guidelines provide that information presumptively satisfies the substantive objectivity requirement if the relevant data and analytic results have undergone formal, independent, external peer review. § V.3.b.i. A presumption of objectivity is rebuttable if a petitioner persuasively demonstrates a lack of objectivity. If peer review is agency-sponsored, certain transparency requirements, such as the general criteria for competent and credible peer review recommended by OMB's Office of Information and Regulatory Affairs (OIRA) to the President's Management Council are triggered to ensure the peer review is adequate. § V.3.b.i. Agency-sponsored peer reviews must be open and rigorous, and peer reviewers must be selected primarily on the basis of necessary technical expertise, disclose to agencies any prior positions they may have taken on pertinent issues, and reveal sources of personal and institutional funding. § V.3.b.i. <br />
<br />
The objectivity standard—that information be “reproducible” to prove transparency—is more particular for information that falls into the category of “influential,” rather than ordinary, information. § V.3.b.ii.B. Information is influential if “the agency can reasonably determine that dissemination of the information will have or does have a clear and substantial impact on important public policies or important private sector decisions.” § V.9. Each agency may separately define “influential” to accord with “the nature and multiplicity of issues for which the agency is responsible.” § V.9. Agencies should consult with relevant scientific and technical communities on the feasibility of making certain categories of data subject to the reproducibility standard. § V.3.b.ii.A. Reproducibility in the analytic context demands that “independent analysis of the original or supporting data using identical methods would generate similar analytic results, subject to an acceptable degree of imprecision or error.” § V.10. The acceptable degree of imprecision changes to reflect the impacts the information may have. The reproducibility standard for other categories of data is set forth by individual agencies in their guidelines whenever they identify specific categories of information as subject to the reproducibility standard. § V.10.<br />
<br />
Compelling privacy interests, trade secrets, intellectual property, and other confidentiality protections take precedence over reproducibility and transparency requirements, in which case agencies must alternatively apply “especially rigorous robustness checks to analytic results and document what checks were undertaken.” § V.3.b.ii.B.i. Each agency determines the type and detail of robustness checks it conducts. Privacy interests notwithstanding, “[a]gency guidelines shall . . . in all cases, require a disclosure of the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed.” § V.3.b.ii.B.ii.<br />
<br />
Some categories of information are automatically subject to special information quality requirements under the OMB guidelines. Agencies disseminating vital health and medical information “shall interpret the reproducibility and peer-review standards in a manner appropriate to assuring the timely flow of vital information from agencies to medical providers, patients, health agencies, and the public.” § V.3.b.ii.C. Similarly, when agencies maintain and disseminate information with regard to analysis of risks to human health, safety, and the environment, they must “either adopt or adapt” the same information quality principle standards that apply to such information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996, [http://uscode.house.gov/statutes/pl/104/182.pdf Pub. L. No. 104-182]; 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section300g-1&num=0&edition=prelim § 300g-1(b)(3)(A)–(B)]. The option to “adapt” rather than “adopt” these standards provides agencies with flexibility in applying them. § V.3.b.ii.C.<br />
<br />
In urgent situations such as imminent threats to public health or homeland security an agency may temporarily waive information quality standards according to standards set forth in the agency’s own guidelines. § V.3.b.ii.C.<br />
<br />
===Administrative Mechanisms for Information Quality Challenges===<br />
<br />
The IQA and subsequent OMB guidelines require that agencies set forth in their guidelines an administrative process allowing affected parties to challenge agency-disseminated information that allegedly fails to meet the standards set forth in either the OMB guidelines or the disseminating agency’s guidelines. § III.3. In establishing these processes, agencies must specify limits on the time an agency may take to consider a challenge and provide for notification to the affected party regarding the agency’s decision. § III.3.i. Agency guidelines must also provide for an administrative appeal process to allow an affected party to seek reconsideration of an agency’s initial decision. § III.3.ii. The appeals mechanism must similarly incorporate specific limits on the time allowed for reconsideration.<br />
<br />
===Agency Reporting Requirements===<br />
<br />
Pursuant to the OMB guidelines, each agency was obligated to submit to OMB a report—following a draft report, public comment, and revisions—outlining its agency-specific information quality guidelines and how the guidelines ensure the quality of information, and also explaining the agency’s administrative mechanisms for allowing affected persons to seek correction of agency information that allegedly does not meet information quality standards. §§ IV.3-5. Following OMB review of the reports, agencies then had to post the reports on their respective websites and publish notice of the availability of the final reports in the ''Federal Register'' by October 1, 2002. § IV.5.<br />
<br />
Since January 1, 2004, agencies must report annually to the director of OMB the number and nature of complaints received by the agency regarding agency compliance with information quality guidelines. § IV.6. The first reports are included in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf OMB’s report to Congress]. OMB does not apparently publish subsequent reports, but the information for individual agencies is available through links to their websites from the OMB site.<br />
<br />
===Judicial Review===<br />
<br />
Attempts to obtain judicial review of agency compliance with the IQA and, in particular, of agency refusals to make requested corrections to disseminated information have been uniformly unsuccessful. An early case, [http://www.ca4.uscourts.gov/Opinions/051097.P.pdf Salt Institute v. Leavitt], 440 F.3d 156 (4th Cir. 2006), held the plaintiff did not have standing because the plaintiff was not injured by any failure of the agency to disseminate correct information, nor did the IQA create any individual right to correct information. ''See also'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/74C882991045080985257E580051699C/$file/12-1309-1555205.pdf Miss. Comm’n on Env't. Quality v. EPA], 790 F.3d 138 (D.C. Cir. 2015). Other cases have denied relief on different grounds. Because the IQA does not itself provide a cause of action, challenges to agency actions have been brought under the [[Administrative Procedure Act|Administrative Procedure Act]]. However, courts have been persuaded that either review of a denial of a correction request is precluded because it is committed to agency discretion by law, ''see, e.g.'', ''Styrene Info. & Resch. Ctr., Inc. v. Sebelius'', 944 F. Supp. 2d 71 (D.D.C. 2013), or that the denial is not a final agency action because it does not affect the rights or obligations of the requester, ''see, e.g.'', ''Single Stick, Inc. v. Johanns'', 601 F. Supp. 2d 307 (D.D.C. 2009), ''aff’d on other grounds'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/3D1E66C834321D4785257807005A9A8A/$file/09-5099-1236845.pdf Prime Time Int’l Co. v. Vilsack], 599 F.3d 678 (D.C. Cir. 2010).<br />
<br />
===Peer Review Bulletin===<br />
On January 14, 2005, OMB published notice in the ''Federal Register'' of its [https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review] (''Bulletin''), 70 Fed. Reg. 2664 (Jan. 14, 2005), after having released and solicited public comment on two previous drafts dated September 15, 2003 ([https://www.govinfo.gov/content/pkg/FR-2003-09-15/pdf/03-23367.pdf 68 Fed. Reg. 54023]) and April 28, 2004 ([https://www.govinfo.gov/content/pkg/FR-2004-04-28/pdf/04-9572.pdf 69 Fed. Reg. 23230]). OMB issued the ''Bulletin'' under the IQA, Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review] 58 Fed. Reg. 51735 (Oct. 4, 1993), and OMB’s authority to manage agencies under the President’s Constitutional authority to supervise the executive branch. The OMB’s [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs] (OIRA) oversees implementation of the ''Bulletin'' in consultation with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy] (OSTP). <br />
<br />
The ''Bulletin'' establishes governmentwide guidance for peer review of agency scientific information that will be disseminated. “Scientific information” includes “factual inputs, data, models, analyses, technical information, or scientific assessments based on the behavioral and social sciences, public health and medical sciences, life and earth sciences, engineering, or physical sciences” (§ I.5). Under the ''Bulletin'', the definition of “dissemination” encompasses the IQA definition, but excludes research produced by government-funded scientists that does not represent agency views and displays a disclaimer to that effect. The definition also excludes information distributed for peer review and that bearing a disclaimer stating that the information’s distribution is solely for the purpose of pre-dissemination peer review (§ I.5).<br />
<br />
===Peer Review of Influential Scientific Information—Section II===<br />
<br />
Section II of the ''Bulletin'' mandates that agencies conduct peer reviews of influential scientific information intended for dissemination. The definition of “influential” is the same as that under the IQA. Section II grants agencies discretion to choose the reviewer selection process and the peer review mechanism. Reviewer selection must take into account reviewer expertise, the need for a balanced representation of perspectives, conflicts of interest, and the reviewers’ independence from the work product under review (§ II.3). In choosing a peer review mechanism, the agency must consider the information’s novelty and complexity, importance to decision making, and prior peer review, as well as any benefits and costs of review (§ II.4). Certain transparency requirements also apply to the peer review mechanism. The reviewers must have advance notice of how their comments will be conveyed. Reviewers must prepare a report describing their review, findings, and conclusions. The report must also provide the names and affiliations of the reviewers and “shall either (a) include a verbatim copy of each reviewer’s comments (either with or without specific attributions) or (b) represent the views of the group as a whole, including any disparate and dissenting views” (§ II.5). The agency is required to post the report on its website along with all related materials, discuss the report in the preamble to any related rulemaking, and include the report in the administrative record behind any related agency action (§ II.5).<br />
<br />
Agencies may commission independent entities to carry out reviewer selection and peer review (§ II.6). Influential scientific information that has already undergone adequate peer review is exempt from the requirements of section II. Principal findings, recommendations, and conclusions in official reports of the National Academy of the Sciences are presumed to have undergone adequate peer review (§ II.2).<br />
<br />
===Peer Review of Highly Influential Scientific Assessments—Section III===<br />
<br />
The ''Bulletin'' imposes requirements, in addition to the section II requirements, for the peer review of highly influential scientific assessments. A “scientific assessment” is “an evaluation of a body of scientific or technical knowledge that typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information” (§ I.7). The term “highly influential” means that the agency or the OIRA Administrator determines that dissemination could have an impact of more than $500 million in any one year or will be “novel, controversial, or precedent-setting, or has significant interagency interest” (§ III.2). The ''Bulletin'' provides that peer review of highly influential scientific assessments adhere to the following additional requirements:<br />
<br />
*Scientists employed by the sponsoring agency (outside of the peer review context) may not function as reviewers. An exception may be made if the agency determines that an agency scientist employed by a different agency of the Cabinet-level department possesses expertise essential to the review and does not hold a position of management or policy responsibility. The agency must obtain prior written approval on a nondelegable basis from the Secretary or Deputy Secretary to make such an exception (§ III.3.c).<br />
*Absent an essential need, the same reviewer should not participate in multiple peer reviews (§ III.3.d).<br />
*Reviewers must be provided information sufficient to enable them to understand the data, analytic procedures, and assumptions used to support the key findings or conclusions they are reviewing (§ III.4).<br />
*If feasible and appropriate, the agency must make the draft scientific assessment available for public comment and sponsor a public meeting attended by the reviewers. The reviewers should then have access to the public comments pertaining to significant scientific or technical issues (§ III.5).<br />
*“The peer review report shall include the charge to the reviewers and a short paragraph on both the credentials and relevant experiences of each peer reviewer” (§ III.6). The agency must also write a response to the report to be posted on the agency’s website explaining the agency’s agreement or disagreement with the report, the actions the agency has undertaken or will undertake in response to the report, and, if applicable, the reasoning behind the choice of those actions (§ III.6).<br />
<br />
===Additional Peer Review Guidelines=== <br />
<br />
Given a compelling rationale, the agency head may waive or defer the peer review requirements of sections II and III (§ VIII.3). Additionally, instead of adhering to the requirements of sections II or III, an agency may ensure the quality of scientific information by relying on information from the National Academy of Sciences, commissioning the National Academy of Sciences to conduct the peer review, or undertaking alternative procedures approved by the OIRA Administrator in consultation with OSTP (§ IV).<br />
<br />
“Peer review shall be conducted in a manner that respects (i) confidential business information and (ii) intellectual property” (§ VIII.2). In disclosing information about a reviewer, the agency must comply with the requirements of the [[Privacy Act]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] as amended, and OMB [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (§ VIII.1). Information relating to certain national security, foreign affairs, or negotiations involving international trade or treaties is exempt from the peer review requirements if adhering to the requirements would interfere with the need for secrecy or promptness. Similarly exempt is information disseminated in the course of an individual agency adjudication or permit proceeding (unless the agency determines that peer review is practical and appropriate and that the influential dissemination is scientifically or technically novel); time-sensitive health or safety information; regulatory impact analysis or regulatory flexibility analysis subject to interagency review under Executive Order 12866; routine statistical information released by federal statistical agencies; accounting, budget, actuarial, and financial information; and information disseminated in connection with routine rules that materially alter entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof (§ IX).<br />
<br />
If an agency supports a regulatory action using information subject to the Bulletin, it must include in the administrative record, along with relevant materials, a certification explaining how the agency complied with the ''Bulletin''’s requirements (§ VII).<br />
<br />
Agencies must post on their websites, and update at least biannually, an agenda providing descriptions of all planned and ongoing influential scientific information subject to the ''Bulletin'', links to documents made public pursuant to the ''Bulletin'', and a peer review plan for each entry (§ V.2). Agencies must also establish a mechanism for allowing the public to comment on the adequacy of its peer review plans. Further, each agency is required to provide to OIRA, by December 15 of each year, a summary of the peer reviews conducted by the agency during the fiscal year (§ VI).<br />
<br />
The Bulletin states that it “does not create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its agencies or other entities, its officers or employees, or any other person” (§ XII), thereby seeking to avoid judicial review of agency compliance with the ''Bulletin''’s requirements.<br />
<br />
===Risk Assessment===<br />
<br />
In 1995, an interagency working group, co-chaired by OMB and OSTP, developed a set of principles to guide policymakers in assessing, managing, and communicating policies to address environmental, health, and safety risks. [https://georgewbush-whitehouse.archives.gov/omb/inforeg/regpol/jan1995_risk_analysis_principles.pdf Principles for Risk Analysis]. In 2006, OMB proposed to adopt uniform quality standards for agencies to adhere to in conducting risk assessments. However, in light of comments from agencies, the public, and the National Academy of Sciences, OMB decided not to adopt that proposal. Instead, in 2007 it issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. The 1995 Principles were divided into five parts: general principles, principles for risk assessment, principles for risk management, principles for risk communication, and priority setting. The 2007 Update reiterates those principles and further develops them in light of scientific advances in the previous 12 years.<br />
<br />
==Legislative History==<br />
<br />
On December 21, 2000, as a rider to the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]), Congress enacted the IQA, which requires OMB to develop guidelines that establish quality standards for information disseminated by federal agencies. Congress accepted the rider to the appropriations bill without any hearings, floor debate, or legislative history specific to the IQA. However, the IQA amends the 1995 [[Paperwork Reduction Act]]’s (PRA) information dissemination requirements, which have some legislative history. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim Section 3504(d)(1)] of the PRA provides: “With respect to information dissemination, the [OMB] Director shall develop and oversee the implementation of policies, principles, standards, and guidelines to apply to Federal agency dissemination of public information, regardless of the form or format in which such information is disseminated.”<br />
<br />
The legislative history that accompanies the 1995 PRA amendments explains that the amendments “promote[] the theme of improving the quality and use of information to strengthen agency decisionmaking and accountability and to maximize the benefit and utility of information created, collected, maintained, used, shared, disseminated, and retained by or for the Federal Government.” [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995). Prior to the enactment of the IQA, OMB had not implemented the PRA’s section 3504(d)(1) information dissemination requirements. On June 22, 1998, the House approved the FY 1999 Treasury, Postal Service, and General Government Appropriations Bill, which contained a non-binding provision that closely resembles the IQA in encouraging OMB to develop policy and procedural guidance to ensure information quality. [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998). That provision provided that:<blockquote>The Committee urges the Office of Management and Budget (OMB) to develop, with public and Federal agency involvement, rules providing policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies, and information disseminated by non-Federal entities with financial support from the Federal government, in fulfillment of the purposes and provisions of the [[Paperwork Reduction Act]] of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The Committee expects issuance of these rules by September 30, 1999. The OMB rules shall also cover the sharing of, and access to, the aforementioned data and information, by members of the public. Such OMB rules shall require Federal agencies to develop, within one year and with public participation, their own rules consistent with the OMB rules. The OMB and agency rules shall contain administrative mechanisms allowing affected persons to petition for correction of information which does not comply with such rules; and the OMB rules shall contain provisions requiring the agencies to report to OMB periodically regarding the number and nature of petitions or complaints regarding Federal, or Federally-supported, information dissemination, and how such petitions and complaints were handled. OMB shall report to the Committee on the status of implementation of these directives no later than September 30, 1999.</blockquote>Representative Jo Ann Emerson and Senator John Shelby are recognized as the principal sponsors of the IQA.<br />
<br />
===Source Note:===<br />
<br />
OMB maintains a [https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ website] with links to government documents relevant to the IQA. After receiving the first annual reports from agencies, OMB published them in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf a single OMB report] to Congress along with OMB’s summary of the data quality program.<br />
<br />
[http://thecre.com/quality/index.html The Center for Regulatory Effectiveness] also maintains an exhaustive and up-to-date archival site of documents relating to the IQA.<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995).<br />
*Treasury, Postal Service, and General Government Appropriations Bill, 1999, [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998).<br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking], § 5(e), 86 Fed. Reg. 8845 (Feb. 10, 2021).<br />
*Scientific Integrity Task Force, White House Office of Science and Technology Policy, [https://www.whitehouse.gov/wp-content/uploads/2022/01/01-22-Protecting_the_Integrity_of_Government_Science.pdf Protecting the Integrity of Government Science] (2022).<br />
*White House Office of Science and Technology Policy, [https://www.govinfo.gov/content/pkg/FR-2022-03-03/pdf/2022-04466.pdf Request for Information to Support the Development of a Federal Scientific Integrity Policy Framework], 87 FR 12165 (2022).<br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memoranda<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmcmemo.pdf Agency Final Information Quality Guidelines] (Sept. 5, 2002).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/pmc_graham_100402.pdf Executive Branch Information Quality Law] (Oct. 4, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmc_oct03report.pdf Guidance for the Information Quality Annual Agency Report to OMB] (Oct. 17, 2003).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info_quality_posting_083004.pdf Posting of Information Quality Correction Requests and Responses] (Aug. 30, 2004).<br />
**M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis] (Sept. 19, 2007).<br />
*Other Documents<br />
**Administrator Speech: [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info-quality_march21.pdf OMB’s Role in Overseeing Information Quality], Remarks to Public Workshop on Information-Quality Guidelines (Mar. 21, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf Information Quality: A Report to Congress], (Apr. 30, 2004).<br />
**[https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review], 70 Fed. Reg. 2664 (Jan. 14, 2005).<br />
**[https://www.govinfo.gov/content/pkg/FR-2006-01-17/pdf/E6-345.pdf Proposed Risk Assessment Bulletin], 71 Fed. Reg. 2600 (Jan 17, 2006).<br />
**M-19-15, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf Improving Implementation of the Information Quality Act] (Apr. 24, 2019).<br />
</div><br />
<br />
===Other Government Documents===<br />
<br />
*Gov’t Accountability Office, GAO-06-765, [https://www.gao.gov/assets/260/251202.pdf Information Quality Act: Expanded Oversight and Clearer Guidance by the Office of Management and Budget Could Improve Agencies’ Implementation of the Act] (2006).<br />
*Gov’t Accountability Office, GAO-16-110, [https://www.gao.gov/assets/680/674386.pdf Information Quality Act: Actions Needed to Improve Transparency and Reporting of Correction Requests] (2015).<br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Daren Bakst, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3753181 Strengthening the Information Quality Act to Improve Federally Disseminated Public Health Information], 75 Food Drug L.J. 234 (2020).<br />
*Karl Bourdeau, ''Information Quality Act Challenges to Flawed Use of Science'', 19 Nat. Resources & Env’t 41 (2005).<br />
*James W. Conrad, Jr., ''The Information Quality Act—Antiregulatory Costs of Mythic Proportions?'', 12 Kan. J.L. & Pub. Pol’y 521 (2003).<br />
*Nathan Cortez, [http://lawreview.colorado.edu/wp-content/uploads/2018/05/Cortez-Regulation-by-Database.pdf Regulation by Database], 89 U. Colo. L. Rev. 1 (2018).<br />
*Alexander Nathan Hecht, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1119&context=jleg Administrative Process in an Information Age: The Transformation of Agency Action Under the Data Quality Act], 31 J. Legis. 233 (2005).<br />
*Stephen M. Johnson, ''Junking the “Junk Science” Law: Reforming the Information Quality Act'', 58 Admin. L. Rev. 37 (2006).<br />
*Stephen M. Johnson, [https://scholarship.law.edu/cgi/viewcontent.cgi?article=1188&context=lawreview Ruminations on Dissemination: Limits on Administrative and Judicial Review Under the Information Quality Act], 55 Cath. U. L. Rev. 59 (2005).<br />
*Michelle V. Lacko, Comment, ''The Data Quality Act: Prologue to a Farce or a Tragedy?'', 53 Emory L.J. 305 (2004).<br />
*Harold Magistrale, ''An Introduction to the Information Quality Act and Its Application to Environmental Regulation'', 38 Urb. Law. 561 (2006).<br />
*Paul R. Noe & John D. Graham, ''The Ascendancy of the Cost-Benefit State?'', 5 ALR Accord 85 (2020).<br />
*Kirk T. O’Reilly, ''Science, Policy, and Politics: The Impact of the Information Quality Act on Risk-Based Regulatory Activity at the EPA'', 14 Buff. Envtl. L.J. 249 (2007)<br />
*Kellen Ressmeyer, Note, [http://www.fclj.org/wp-content/uploads/2013/01/12-RessmeyerFINAL.pdf The Information Quality Act: The Little Statute that Could (or Couldn’t?): Applying the Safe Drinking Water Act Amendments of 1996 to the Federal Communications Commission], 59 Fed. Comm. L.J. 219 (2006).<br />
*Sidney A. Shapiro, [https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1153&context=wmelpr The Information Quality Act and Environmental Protection: The Perils of Reform by Appropriations Rider], 28 Wm. & Mary Envtl. L. & Pol’y Rev. 339 (2004).<br />
*Tammy P. Tideswell, [http://www.jag.navy.mil/documents/navylawreview/NLRVolume51.pdf The Information Quality Act: An Environmental Primer], 51 Naval L. Rev. 91 (2005).<br />
*Wendy E. Wagner, [https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1282&context=jlp Importing Daubert to Administrative Agencies Through the Information Quality Act], 12 J.L. & Pol’y 589 (2004).<br />
</div><br />
<br />
==Statutory Provisions==<br />
<br />
Information Quality Act <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 44 U.S.C. § 3516 note]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Information_Quality_Act&diff=1655Information Quality Act2023-08-12T21:29:58Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 3516 note] (2012); enacted by [https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554 § 515], 114 Stat. 2763, 2763A-153, Dec. 21, 2000.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ Office of Management and Budget, Office of Information and Regulatory Affairs, Information Policy]<br />
<br />
==Overview==<br />
<br />
The Information Quality Act (IQA), also frequently termed the Data Quality Act, mandates the establishment of guidelines “ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated” by agencies. The IQA consists of a brief provision in the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]) and amends the 1995 [[Paperwork Reduction Act]] (PRA) ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The amendment directs the [https://www.whitehouse.gov/omb/ Office of Management and Budget] (OMB) to issue policy and procedural guidance to federal agencies that are subject to the PRA. The IQA requires OMB to guide agencies in (1) issuing their own data quality guidelines to regulate agency use and dissemination of information; (2) developing administrative mechanisms so that affected parties may seek correction of information that does not comply with information quality guidelines; and (3) making periodic reports to OMB on the number, nature, and resolution of any complaints the agencies receive concerning their failure to comply with either OMB or agency-specific information quality guidelines. An agency must also delegate a Chief Information Officer or similar official to be responsible for agency compliance; this officer is required to draft reports explaining both agency-specific guidelines and mechanisms.<br />
<br />
OMB published proposed guidelines pursuant to the IQA on June 28, 2001. [https://www.govinfo.gov/content/pkg/FR-2001-06-28/pdf/01-16227.pdf Proposed Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 34,489 (proposed June 28, 2001). Following public comment, OMB published interim final guidelines on September 28, 2001, [https://www.govinfo.gov/content/pkg/FR-2001-09-28/pdf/01-24172.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 49,718 (Sept. 28, 2001), and then finalized guidelines, after additional public comment, on February 22, 2002, [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 67 Fed. Reg. 8452 (Feb. 22, 2002). On October 1, 2002, the OMB guidelines went into effect, thus requiring agencies to issue, by the same date, their own guidelines detailing their agency-specific information quality standards and outlining administrative mechanisms for affected parties to challenge the quality of agency-disseminated information. Any information disseminated by agencies on or after October 1, 2002, is subject to the OMB and agency-specific information quality guidelines. Agency-specific guidelines may be found on the agency websites, in the ''Federal Register'', or on the OMB website.<br />
<br />
===Information Quality Guidelines=== <br />
The IQA aims to regulate “the sharing by Federal agencies of, and access to, information disseminated by Federal agencies.” The [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf OMB guidelines] define “information” as “any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms.” § V.5. This definition includes information posted on an agency web page, but excludes hyperlinks to information disseminated by sources outside the agency. Similarly, if an agency presents information in a manner clearly indicating that the information reflects an opinion-not a fact or an agency view-the information is not subject to the same information quality standards. The guidelines define “dissemination” as “agency initiated or sponsored distribution of information to the public” (§ V.8). The guidelines exclude from the definition of dissemination any distribution that is limited to “government employees or agency contractors or grantees; intra- or inter-agency use or sharing of government information; and responses to requests for agency records under the [[Freedom of Information Act]], the [[Privacy Act]], the [[Federal Advisory Committee Act]] or other similar law.” Further excluded are “correspondence with individuals or persons, press releases, archival records, public filings, [and] subpoenas or adjudicative processes.” § V.8.<br />
<br />
The IQA addresses the “quality, objectivity, utility, and integrity” of agency information. The OMB guidelines provide definitions for these terms. “Quality” encompasses utility, objectivity, and integrity. § V.1. “Utility” contemplates the usefulness of information for both the agency and the public such that “when transparency of information is relevant for assessing the information’s usefulness from the public’s perspective, the agency must take care to ensure that transparency has been addressed in its review of the information.” § V.2. “Integrity” refers to the safeguarding of information from unauthorized access or revision. § V.4. “Objectivity” focuses on whether information is substantively accurate, reliable, and unbiased and is presented in an accurate, clear, complete, and unbiased manner. §§ V.3.a-b.<br />
<br />
To satisfy the presentation prong of the objectivity requirement, agencies must present information in context, which may—depending on the sort of information—require providing additional information, sources, supporting data, models, sources of errors, and documentation. The substantive objectivity prong requires that scientific, financial, or statistical information be based on original and supporting data and analytic results produced using “sound statistical and research methods.” § V.3.b. The guidelines provide that information presumptively satisfies the substantive objectivity requirement if the relevant data and analytic results have undergone formal, independent, external peer review. § V.3.b.i. A presumption of objectivity is rebuttable if a petitioner persuasively demonstrates a lack of objectivity. If peer review is agency-sponsored, certain transparency requirements, such as the general criteria for competent and credible peer review recommended by OMB's Office of Information and Regulatory Affairs (OIRA) to the President's Management Council are triggered to ensure the peer review is adequate. § V.3.b.i. Agency-sponsored peer reviews must be open and rigorous, and peer reviewers must be selected primarily on the basis of necessary technical expertise, disclose to agencies any prior positions they may have taken on pertinent issues, and reveal sources of personal and institutional funding. § V.3.b.i. <br />
<br />
The objectivity standard—that information be “reproducible” to prove transparency—is more particular for information that falls into the category of “influential,” rather than ordinary, information. § V.3.b.ii.B. Information is influential if “the agency can reasonably determine that dissemination of the information will have or does have a clear and substantial impact on important public policies or important private sector decisions.” § V.9. Each agency may separately define “influential” to accord with “the nature and multiplicity of issues for which the agency is responsible.” § V.9. Agencies should consult with relevant scientific and technical communities on the feasibility of making certain categories of data subject to the reproducibility standard. § V.3.b.ii.A. Reproducibility in the analytic context demands that “independent analysis of the original or supporting data using identical methods would generate similar analytic results, subject to an acceptable degree of imprecision or error.” § V.10. The acceptable degree of imprecision changes to reflect the impacts the information may have. The reproducibility standard for other categories of data is set forth by individual agencies in their guidelines whenever they identify specific categories of information as subject to the reproducibility standard. § V.10.<br />
<br />
Compelling privacy interests, trade secrets, intellectual property, and other confidentiality protections take precedence over reproducibility and transparency requirements, in which case agencies must alternatively apply “especially rigorous robustness checks to analytic results and document what checks were undertaken.” § V.3.b.ii.B.i. Each agency determines the type and detail of robustness checks it conducts. Privacy interests notwithstanding, “[a]gency guidelines shall . . . in all cases, require a disclosure of the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed.” § V.3.b.ii.B.ii.<br />
<br />
Some categories of information are automatically subject to special information quality requirements under the OMB guidelines. Agencies disseminating vital health and medical information “shall interpret the reproducibility and peer-review standards in a manner appropriate to assuring the timely flow of vital information from agencies to medical providers, patients, health agencies, and the public.” § V.3.b.ii.C. Similarly, when agencies maintain and disseminate information with regard to analysis of risks to human health, safety, and the environment, they must “either adopt or adapt” the same information quality principle standards that apply to such information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996, [http://uscode.house.gov/statutes/pl/104/182.pdf Pub. L. No. 104-182]; 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section300g-1&num=0&edition=prelim § 300g-1(b)(3)(A)–(B)]. The option to “adapt” rather than “adopt” these standards provides agencies with flexibility in applying them. § V.3.b.ii.C.<br />
<br />
In urgent situations such as imminent threats to public health or homeland security an agency may temporarily waive information quality standards according to standards set forth in the agency’s own guidelines. § V.3.b.ii.C.<br />
<br />
===Administrative Mechanisms for Information Quality Challenges===<br />
<br />
The IQA and subsequent OMB guidelines require that agencies set forth in their guidelines an administrative process allowing affected parties to challenge agency-disseminated information that allegedly fails to meet the standards set forth in either the OMB guidelines or the disseminating agency’s guidelines (§ III.3). In establishing these processes, agencies must specify limits on the time an agency may take to consider a challenge and provide for notification to the affected party regarding the agency’s decision (§ III.3.i). Agency guidelines must also provide for an administrative appeal process to allow an affected party to seek reconsideration of an agency’s initial decision (§ III.3.ii). The appeals mechanism must similarly incorporate specific limits on the time allowed for reconsideration.<br />
<br />
===Agency Reporting Requirements===<br />
<br />
Pursuant to the OMB guidelines, each agency was obligated to submit to OMB a report—following a draft report, public comment, and revisions—outlining its agency-specific information quality guidelines and how the guidelines ensure the quality of information, and also explaining the agency’s administrative mechanisms for allowing affected persons to seek correction of agency information that allegedly does not meet information quality standards (§§ IV.3-5). Following OMB review of the reports, agencies then had to post the reports on their respective websites and publish notice of the availability of the final reports in the ''Federal Register'' by October 1, 2002 (§ IV.5).<br />
<br />
Since January 1, 2004, agencies must report annually to the director of OMB the number and nature of complaints received by the agency regarding agency compliance with information quality guidelines (§ IV.6). The first reports are included in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf OMB’s report to Congress]. OMB does not apparently publish subsequent reports, but the information for individual agencies is available through links to their websites from the OMB site.<br />
<br />
===Judicial Review===<br />
<br />
Attempts to obtain judicial review of agency compliance with the IQA and in particular of agency refusals to make requested corrections to disseminated information have been uniformly unsuccessful. An early case, [http://www.ca4.uscourts.gov/Opinions/051097.P.pdf Salt Institute v. Leavitt], 440 F.3d 156 (4th Cir. 2006), held the plaintiff did not have standing because it was not injured by any failure of the agency to disseminate correct information, nor did the IQA create any individual right to correct information. ''See also'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/74C882991045080985257E580051699C/$file/12-1309-1555205.pdf Miss. Comm’n on Envtl. Quality v. EPA], 790 F.3d 138 (D.C. Cir. 2015). Other cases have denied relief on different grounds. Because the IQA does not itself provide a cause of action, challenges to agency actions have been brought under the [[Administrative Procedure Act|Administrative Procedure Act]]. However, courts have been persuaded either that review of a denial of a correction request is precluded because it is committed to agency discretion by law, ''see, e.g.'', ''Styrene Info. & Research Center, Inc. v. Sebelius'', 944 F. Supp. 2d 71 (D.D.C. 2013), or that the denial is not final agency action, because it does not affect the rights or obligations of the requester, ''see, e.g.'', ''Single Stick, Inc. v. Johanns'', 601 F. Supp. 2d 307 (D.D.C. 2009), ''aff’d on other grounds'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/3D1E66C834321D4785257807005A9A8A/$file/09-5099-1236845.pdf Prime Time Int’l Co. v. Vilsack], 599 F.3d 678 (D.C. Cir. 2010).<br />
<br />
===Peer Review Bulletin===<br />
On January 14, 2005, OMB published notice in the ''Federal Register'' of its [https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review] (''Bulletin''), 70 Fed. Reg. 2664 (Jan. 14, 2005), after having released and solicited public comment on two previous drafts dated September 15, 2003 ([https://www.govinfo.gov/content/pkg/FR-2003-09-15/pdf/03-23367.pdf 68 Fed. Reg. 54023]) and April 28, 2004 ([https://www.govinfo.gov/content/pkg/FR-2004-04-28/pdf/04-9572.pdf 69 Fed. Reg. 23230]). OMB issued the ''Bulletin'' under the IQA, Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review] 58 Fed. Reg. 51735 (Oct. 4, 1993), and OMB’s authority to manage agencies under the President’s Constitutional authority to supervise the executive branch. The OMB’s [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs] (OIRA) oversees implementation of the ''Bulletin'' in consultation with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy] (OSTP). <br />
<br />
The ''Bulletin'' establishes governmentwide guidance for peer review of agency scientific information that will be disseminated. “Scientific information” includes “factual inputs, data, models, analyses, technical information, or scientific assessments based on the behavioral and social sciences, public health and medical sciences, life and earth sciences, engineering, or physical sciences” (§ I.5). Under the ''Bulletin'', the definition of “dissemination” encompasses the IQA definition, but excludes research produced by government-funded scientists that does not represent agency views and displays a disclaimer to that effect. The definition also excludes information distributed for peer review and that bearing a disclaimer stating that the information’s distribution is solely for the purpose of pre-dissemination peer review (§ I.5).<br />
<br />
===Peer Review of Influential Scientific Information—Section II===<br />
<br />
Section II of the ''Bulletin'' mandates that agencies conduct peer reviews of influential scientific information intended for dissemination. The definition of “influential” is the same as that under the IQA. Section II grants agencies discretion to choose the reviewer selection process and the peer review mechanism. Reviewer selection must take into account reviewer expertise, the need for a balanced representation of perspectives, conflicts of interest, and the reviewers’ independence from the work product under review (§ II.3). In choosing a peer review mechanism, the agency must consider the information’s novelty and complexity, importance to decision making, and prior peer review, as well as any benefits and costs of review (§ II.4). Certain transparency requirements also apply to the peer review mechanism. The reviewers must have advance notice of how their comments will be conveyed. Reviewers must prepare a report describing their review, findings, and conclusions. The report must also provide the names and affiliations of the reviewers and “shall either (a) include a verbatim copy of each reviewer’s comments (either with or without specific attributions) or (b) represent the views of the group as a whole, including any disparate and dissenting views” (§ II.5). The agency is required to post the report on its website along with all related materials, discuss the report in the preamble to any related rulemaking, and include the report in the administrative record behind any related agency action (§ II.5).<br />
<br />
Agencies may commission independent entities to carry out reviewer selection and peer review (§ II.6). Influential scientific information that has already undergone adequate peer review is exempt from the requirements of section II. Principal findings, recommendations, and conclusions in official reports of the National Academy of the Sciences are presumed to have undergone adequate peer review (§ II.2).<br />
<br />
===Peer Review of Highly Influential Scientific Assessments—Section III===<br />
<br />
The ''Bulletin'' imposes requirements, in addition to the section II requirements, for the peer review of highly influential scientific assessments. A “scientific assessment” is “an evaluation of a body of scientific or technical knowledge that typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information” (§ I.7). The term “highly influential” means that the agency or the OIRA Administrator determines that dissemination could have an impact of more than $500 million in any one year or will be “novel, controversial, or precedent-setting, or has significant interagency interest” (§ III.2). The ''Bulletin'' provides that peer review of highly influential scientific assessments adhere to the following additional requirements:<br />
<br />
*Scientists employed by the sponsoring agency (outside of the peer review context) may not function as reviewers. An exception may be made if the agency determines that an agency scientist employed by a different agency of the Cabinet-level department possesses expertise essential to the review and does not hold a position of management or policy responsibility. The agency must obtain prior written approval on a nondelegable basis from the Secretary or Deputy Secretary to make such an exception (§ III.3.c).<br />
*Absent an essential need, the same reviewer should not participate in multiple peer reviews (§ III.3.d).<br />
*Reviewers must be provided information sufficient to enable them to understand the data, analytic procedures, and assumptions used to support the key findings or conclusions they are reviewing (§ III.4).<br />
*If feasible and appropriate, the agency must make the draft scientific assessment available for public comment and sponsor a public meeting attended by the reviewers. The reviewers should then have access to the public comments pertaining to significant scientific or technical issues (§ III.5).<br />
*“The peer review report shall include the charge to the reviewers and a short paragraph on both the credentials and relevant experiences of each peer reviewer” (§ III.6). The agency must also write a response to the report to be posted on the agency’s website explaining the agency’s agreement or disagreement with the report, the actions the agency has undertaken or will undertake in response to the report, and, if applicable, the reasoning behind the choice of those actions (§ III.6).<br />
<br />
===Additional Peer Review Guidelines=== <br />
<br />
Given a compelling rationale, the agency head may waive or defer the peer review requirements of sections II and III (§ VIII.3). Additionally, instead of adhering to the requirements of sections II or III, an agency may ensure the quality of scientific information by relying on information from the National Academy of Sciences, commissioning the National Academy of Sciences to conduct the peer review, or undertaking alternative procedures approved by the OIRA Administrator in consultation with OSTP (§ IV).<br />
<br />
“Peer review shall be conducted in a manner that respects (i) confidential business information and (ii) intellectual property” (§ VIII.2). In disclosing information about a reviewer, the agency must comply with the requirements of the [[Privacy Act]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] as amended, and OMB [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (§ VIII.1). Information relating to certain national security, foreign affairs, or negotiations involving international trade or treaties is exempt from the peer review requirements if adhering to the requirements would interfere with the need for secrecy or promptness. Similarly exempt is information disseminated in the course of an individual agency adjudication or permit proceeding (unless the agency determines that peer review is practical and appropriate and that the influential dissemination is scientifically or technically novel); time-sensitive health or safety information; regulatory impact analysis or regulatory flexibility analysis subject to interagency review under Executive Order 12866; routine statistical information released by federal statistical agencies; accounting, budget, actuarial, and financial information; and information disseminated in connection with routine rules that materially alter entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof (§ IX).<br />
<br />
If an agency supports a regulatory action using information subject to the Bulletin, it must include in the administrative record, along with relevant materials, a certification explaining how the agency complied with the ''Bulletin''’s requirements (§ VII).<br />
<br />
Agencies must post on their websites, and update at least biannually, an agenda providing descriptions of all planned and ongoing influential scientific information subject to the ''Bulletin'', links to documents made public pursuant to the ''Bulletin'', and a peer review plan for each entry (§ V.2). Agencies must also establish a mechanism for allowing the public to comment on the adequacy of its peer review plans. Further, each agency is required to provide to OIRA, by December 15 of each year, a summary of the peer reviews conducted by the agency during the fiscal year (§ VI).<br />
<br />
The Bulletin states that it “does not create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its agencies or other entities, its officers or employees, or any other person” (§ XII), thereby seeking to avoid judicial review of agency compliance with the ''Bulletin''’s requirements.<br />
<br />
===Risk Assessment===<br />
<br />
In 1995, an interagency working group, co-chaired by OMB and OSTP, developed a set of principles to guide policymakers in assessing, managing, and communicating policies to address environmental, health, and safety risks. [https://georgewbush-whitehouse.archives.gov/omb/inforeg/regpol/jan1995_risk_analysis_principles.pdf Principles for Risk Analysis]. In 2006, OMB proposed to adopt uniform quality standards for agencies to adhere to in conducting risk assessments. However, in light of comments from agencies, the public, and the National Academy of Sciences, OMB decided not to adopt that proposal. Instead, in 2007 it issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. The 1995 Principles were divided into five parts: general principles, principles for risk assessment, principles for risk management, principles for risk communication, and priority setting. The 2007 Update reiterates those principles and further develops them in light of scientific advances in the previous 12 years.<br />
<br />
==Legislative History==<br />
<br />
On December 21, 2000, as a rider to the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]), Congress enacted the IQA, which requires OMB to develop guidelines that establish quality standards for information disseminated by federal agencies. Congress accepted the rider to the appropriations bill without any hearings, floor debate, or legislative history specific to the IQA. However, the IQA amends the 1995 [[Paperwork Reduction Act]]’s (PRA) information dissemination requirements, which have some legislative history. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim Section 3504(d)(1)] of the PRA provides: “With respect to information dissemination, the [OMB] Director shall develop and oversee the implementation of policies, principles, standards, and guidelines to apply to Federal agency dissemination of public information, regardless of the form or format in which such information is disseminated.”<br />
<br />
The legislative history that accompanies the 1995 PRA amendments explains that the amendments “promote[] the theme of improving the quality and use of information to strengthen agency decisionmaking and accountability and to maximize the benefit and utility of information created, collected, maintained, used, shared, disseminated, and retained by or for the Federal Government.” [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995). Prior to the enactment of the IQA, OMB had not implemented the PRA’s section 3504(d)(1) information dissemination requirements. On June 22, 1998, the House approved the FY 1999 Treasury, Postal Service, and General Government Appropriations Bill, which contained a non-binding provision that closely resembles the IQA in encouraging OMB to develop policy and procedural guidance to ensure information quality. [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998). That provision provided that:<blockquote>The Committee urges the Office of Management and Budget (OMB) to develop, with public and Federal agency involvement, rules providing policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies, and information disseminated by non-Federal entities with financial support from the Federal government, in fulfillment of the purposes and provisions of the [[Paperwork Reduction Act]] of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The Committee expects issuance of these rules by September 30, 1999. The OMB rules shall also cover the sharing of, and access to, the aforementioned data and information, by members of the public. Such OMB rules shall require Federal agencies to develop, within one year and with public participation, their own rules consistent with the OMB rules. The OMB and agency rules shall contain administrative mechanisms allowing affected persons to petition for correction of information which does not comply with such rules; and the OMB rules shall contain provisions requiring the agencies to report to OMB periodically regarding the number and nature of petitions or complaints regarding Federal, or Federally-supported, information dissemination, and how such petitions and complaints were handled. OMB shall report to the Committee on the status of implementation of these directives no later than September 30, 1999.</blockquote>Representative Jo Ann Emerson and Senator John Shelby are recognized as the principal sponsors of the IQA.<br />
<br />
===Source Note:===<br />
<br />
OMB maintains a [https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ website] with links to government documents relevant to the IQA. After receiving the first annual reports from agencies, OMB published them in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf a single OMB report] to Congress along with OMB’s summary of the data quality program.<br />
<br />
[http://thecre.com/quality/index.html The Center for Regulatory Effectiveness] also maintains an exhaustive and up-to-date archival site of documents relating to the IQA.<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995).<br />
*Treasury, Postal Service, and General Government Appropriations Bill, 1999, [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998).<br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking], § 5(e), 86 Fed. Reg. 8845 (Feb. 10, 2021).<br />
*Scientific Integrity Task Force, White House Office of Science and Technology Policy, [https://www.whitehouse.gov/wp-content/uploads/2022/01/01-22-Protecting_the_Integrity_of_Government_Science.pdf Protecting the Integrity of Government Science] (2022).<br />
*White House Office of Science and Technology Policy, [https://www.govinfo.gov/content/pkg/FR-2022-03-03/pdf/2022-04466.pdf Request for Information to Support the Development of a Federal Scientific Integrity Policy Framework], 87 FR 12165 (2022).<br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memoranda<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmcmemo.pdf Agency Final Information Quality Guidelines] (Sept. 5, 2002).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/pmc_graham_100402.pdf Executive Branch Information Quality Law] (Oct. 4, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmc_oct03report.pdf Guidance for the Information Quality Annual Agency Report to OMB] (Oct. 17, 2003).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info_quality_posting_083004.pdf Posting of Information Quality Correction Requests and Responses] (Aug. 30, 2004).<br />
**M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis] (Sept. 19, 2007).<br />
*Other Documents<br />
**Administrator Speech: [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info-quality_march21.pdf OMB’s Role in Overseeing Information Quality], Remarks to Public Workshop on Information-Quality Guidelines (Mar. 21, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf Information Quality: A Report to Congress], (Apr. 30, 2004).<br />
**[https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review], 70 Fed. Reg. 2664 (Jan. 14, 2005).<br />
**[https://www.govinfo.gov/content/pkg/FR-2006-01-17/pdf/E6-345.pdf Proposed Risk Assessment Bulletin], 71 Fed. Reg. 2600 (Jan 17, 2006).<br />
**M-19-15, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf Improving Implementation of the Information Quality Act] (Apr. 24, 2019).<br />
</div><br />
<br />
===Other Government Documents===<br />
<br />
*Gov’t Accountability Office, GAO-06-765, [https://www.gao.gov/assets/260/251202.pdf Information Quality Act: Expanded Oversight and Clearer Guidance by the Office of Management and Budget Could Improve Agencies’ Implementation of the Act] (2006).<br />
*Gov’t Accountability Office, GAO-16-110, [https://www.gao.gov/assets/680/674386.pdf Information Quality Act: Actions Needed to Improve Transparency and Reporting of Correction Requests] (2015).<br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Daren Bakst, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3753181 Strengthening the Information Quality Act to Improve Federally Disseminated Public Health Information], 75 Food Drug L.J. 234 (2020).<br />
*Karl Bourdeau, ''Information Quality Act Challenges to Flawed Use of Science'', 19 Nat. Resources & Env’t 41 (2005).<br />
*James W. Conrad, Jr., ''The Information Quality Act—Antiregulatory Costs of Mythic Proportions?'', 12 Kan. J.L. & Pub. Pol’y 521 (2003).<br />
*Nathan Cortez, [http://lawreview.colorado.edu/wp-content/uploads/2018/05/Cortez-Regulation-by-Database.pdf Regulation by Database], 89 U. Colo. L. Rev. 1 (2018).<br />
*Alexander Nathan Hecht, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1119&context=jleg Administrative Process in an Information Age: The Transformation of Agency Action Under the Data Quality Act], 31 J. Legis. 233 (2005).<br />
*Stephen M. Johnson, ''Junking the “Junk Science” Law: Reforming the Information Quality Act'', 58 Admin. L. Rev. 37 (2006).<br />
*Stephen M. Johnson, [https://scholarship.law.edu/cgi/viewcontent.cgi?article=1188&context=lawreview Ruminations on Dissemination: Limits on Administrative and Judicial Review Under the Information Quality Act], 55 Cath. U. L. Rev. 59 (2005).<br />
*Michelle V. Lacko, Comment, ''The Data Quality Act: Prologue to a Farce or a Tragedy?'', 53 Emory L.J. 305 (2004).<br />
*Harold Magistrale, ''An Introduction to the Information Quality Act and Its Application to Environmental Regulation'', 38 Urb. Law. 561 (2006).<br />
*Paul R. Noe & John D. Graham, ''The Ascendancy of the Cost-Benefit State?'', 5 ALR Accord 85 (2020).<br />
*Kirk T. O’Reilly, ''Science, Policy, and Politics: The Impact of the Information Quality Act on Risk-Based Regulatory Activity at the EPA'', 14 Buff. Envtl. L.J. 249 (2007)<br />
*Kellen Ressmeyer, Note, [http://www.fclj.org/wp-content/uploads/2013/01/12-RessmeyerFINAL.pdf The Information Quality Act: The Little Statute that Could (or Couldn’t?): Applying the Safe Drinking Water Act Amendments of 1996 to the Federal Communications Commission], 59 Fed. Comm. L.J. 219 (2006).<br />
*Sidney A. Shapiro, [https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1153&context=wmelpr The Information Quality Act and Environmental Protection: The Perils of Reform by Appropriations Rider], 28 Wm. & Mary Envtl. L. & Pol’y Rev. 339 (2004).<br />
*Tammy P. Tideswell, [http://www.jag.navy.mil/documents/navylawreview/NLRVolume51.pdf The Information Quality Act: An Environmental Primer], 51 Naval L. Rev. 91 (2005).<br />
*Wendy E. Wagner, [https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1282&context=jlp Importing Daubert to Administrative Agencies Through the Information Quality Act], 12 J.L. & Pol’y 589 (2004).<br />
</div><br />
<br />
==Statutory Provisions==<br />
<br />
Information Quality Act <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 44 U.S.C. § 3516 note]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Information_Quality_Act&diff=1654Information Quality Act2023-08-12T21:27:29Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 3516 note] (2012); enacted by [https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554 § 515], 114 Stat. 2763, 2763A-153, Dec. 21, 2000.<br />
<br />
'''Lead Agency:'''<br />
<br />
[https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ Office of Management and Budget, Office of Information and Regulatory Affairs, Information Policy]<br />
<br />
==Overview==<br />
<br />
The Information Quality Act (IQA), also frequently termed the Data Quality Act, mandates the establishment of guidelines “ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated” by agencies. The IQA consists of a brief provision in the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]) and amends the 1995 [[Paperwork Reduction Act]] (PRA) ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The amendment directs the [https://www.whitehouse.gov/omb/ Office of Management and Budget] (OMB) to issue policy and procedural guidance to federal agencies that are subject to the PRA. The IQA requires OMB to guide agencies in (1) issuing their own data quality guidelines to regulate agency use and dissemination of information; (2) developing administrative mechanisms so that affected parties may seek correction of information that does not comply with information quality guidelines; and (3) making periodic reports to OMB on the number, nature, and resolution of any complaints the agencies receive concerning their failure to comply with either OMB or agency-specific information quality guidelines. An agency must also delegate a Chief Information Officer or similar official to be responsible for agency compliance; this officer is required to draft reports explaining both agency-specific guidelines and mechanisms.<br />
<br />
OMB published proposed guidelines pursuant to the IQA on June 28, 2001. [https://www.govinfo.gov/content/pkg/FR-2001-06-28/pdf/01-16227.pdf Proposed Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 34,489 (proposed June 28, 2001). Following public comment, OMB published interim final guidelines on September 28, 2001, [https://www.govinfo.gov/content/pkg/FR-2001-09-28/pdf/01-24172.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 66 Fed. Reg. 49,718 (Sept. 28, 2001), and then finalized guidelines, after additional public comment, on February 22, 2002, [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies], 67 Fed. Reg. 8452 (Feb. 22, 2002). On October 1, 2002, the OMB guidelines went into effect, thus requiring agencies to issue, by the same date, their own guidelines detailing their agency-specific information quality standards and outlining administrative mechanisms for affected parties to challenge the quality of agency-disseminated information. Any information disseminated by agencies on or after October 1, 2002, is subject to the OMB and agency-specific information quality guidelines. Agency-specific guidelines may be found on the agency websites, in the ''Federal Register'', or on the OMB website.<br />
<br />
===Information Quality Guidelines=== <br />
The IQA aims to regulate “the sharing by Federal agencies of, and access to, information disseminated by Federal agencies.” The [https://www.govinfo.gov/content/pkg/FR-2002-02-22/pdf/R2-59.pdf OMB guidelines] define “information” as “any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms.” § V.5. This definition includes information posted on an agency web page, but excludes hyperlinks to information disseminated by sources outside the agency. Similarly, if an agency presents information in a manner clearly indicating that the information reflects an opinion-not a fact or an agency view-the information is not subject to the same information quality standards. The guidelines define “dissemination” as “agency initiated or sponsored distribution of information to the public” (§ V.8). The guidelines exclude from the definition of dissemination any distribution that is limited to “government employees or agency contractors or grantees; intra- or inter-agency use or sharing of government information; and responses to requests for agency records under the [[Freedom of Information Act]], the [[Privacy Act]], the [[Federal Advisory Committee Act]] or other similar law.” Further excluded are “correspondence with individuals or persons, press releases, archival records, public filings, [and] subpoenas or adjudicative processes.” § V.8.<br />
<br />
The IQA addresses the “quality, objectivity, utility, and integrity” of agency information. The OMB guidelines provide definitions for these terms. “Quality” encompasses utility, objectivity, and integrity. § V.1. “Utility” contemplates the usefulness of information for both the agency and the public such that “when transparency of information is relevant for assessing the information’s usefulness from the public’s perspective, the agency must take care to ensure that transparency has been addressed in its review of the information.” § V.2. “Integrity” refers to the safeguarding of information from unauthorized access or revision. § V.4. “Objectivity” focuses on whether information is substantively accurate, reliable, and unbiased and is presented in an accurate, clear, complete, and unbiased manner. §§ V.3.a-b.<br />
<br />
To satisfy the presentation prong of the objectivity requirement, agencies must present information in context, which may—depending on the sort of information—require providing additional information, sources, supporting data, models, sources of errors, and documentation. The substantive objectivity prong requires that scientific, financial, or statistical information be based on original and supporting data and analytic results produced using “sound statistical and research methods.” § V.3.b. The guidelines provide that information presumptively satisfies the substantive objectivity requirement if the relevant data and analytic results have undergone formal, independent, external peer review. § V.3.b.i. A presumption of objectivity is rebuttable if a petitioner persuasively demonstrates a lack of objectivity. If peer review is agency-sponsored, certain transparency requirements, such as the general criteria for competent and credible peer review recommended by OMB's Office of Information and Regulatory Affairs (OIRA) to the President's Management Council are triggered to ensure the peer review is adequate. § V.3.b.i. Agency-sponsored peer reviews must be open and rigorous, and peer reviewers must be selected primarily on the basis of necessary technical expertise, disclose to agencies any prior positions they may have taken on pertinent issues, and reveal sources of personal and institutional funding. § V.3.b.i. <br />
<br />
The objectivity standard—that information be “reproducible” to prove transparency—is more particular for information that falls into the category of “influential,” rather than ordinary, information (§ V.3.b.ii.B). Information is influential if “the agency can reasonably determine that dissemination of the information will have or does have a clear and substantial impact on important public policies or important private sector decisions” (§ V.9). Each agency may separately define “influential” to accord with “the nature and multiplicity of issues for which the agency is responsible” (§ V.9). Agencies should consult with relevant scientific and technical communities on the feasibility of making certain categories of data subject to the reproducibility standard (§ V.3.b.ii.A). Reproducibility in the analytic context demands that “independent analysis of the original or supporting data using identical methods would generate similar analytic results, subject to an acceptable degree of imprecision or error” (§ V.10). The acceptable degree of imprecision changes to reflect the impacts the information may have. The reproducibility standard for other categories of data is set forth by individual agencies in their guidelines whenever they identify specific categories of information as subject to the reproducibility standard (§ V.10).<br />
<br />
Compelling privacy interests, trade secrets, intellectual property, and other confidentiality protections take precedence over reproducibility and transparency requirements, in which case agencies must alternatively apply “especially rigorous robustness checks to analytic results and document what checks were undertaken” (§ V.3.b.ii.B.i). Each agency determines the type and detail of robustness checks it conducts. Privacy interests notwithstanding, “[a]gency guidelines shall . . . in all cases, require a disclosure of the specific data sources that have been used and the specific quantitative methods and assumptions that have been employed” (§ V.3.b.ii.B.ii).<br />
<br />
Some categories of information are automatically subject to special information quality requirements under the OMB guidelines. Agencies disseminating vital health and medical information “shall interpret the reproducibility and peer-review standards in a manner appropriate to assuring the timely flow of vital information from agencies to medical providers, patients, health agencies, and the public” (§ V.3.b.ii.C). Similarly, when agencies maintain and disseminate information with regard to analysis of risks to human health, safety, and the environment, they must “either adopt or adapt” the same information quality principle standards that apply to such information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996 ([http://uscode.house.gov/statutes/pl/104/182.pdf Pub. L. No. 104-182]; 42 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section300g-1&num=0&edition=prelim § 300g-1(b)(3)(A)–(B)]). The option to “adapt” rather than “adopt” these standards provides agencies with flexibility in applying them (§ V.3.b.ii.C).<br />
<br />
In urgent situations involving imminent threats to public health or homeland security, for example, an agency may temporarily waive information quality standards according to standards set forth in the agency’s own guidelines (§ V.3.b.ii.C).<br />
<br />
===Administrative Mechanisms for Information Quality Challenges===<br />
<br />
The IQA and subsequent OMB guidelines require that agencies set forth in their guidelines an administrative process allowing affected parties to challenge agency-disseminated information that allegedly fails to meet the standards set forth in either the OMB guidelines or the disseminating agency’s guidelines (§ III.3). In establishing these processes, agencies must specify limits on the time an agency may take to consider a challenge and provide for notification to the affected party regarding the agency’s decision (§ III.3.i). Agency guidelines must also provide for an administrative appeal process to allow an affected party to seek reconsideration of an agency’s initial decision (§ III.3.ii). The appeals mechanism must similarly incorporate specific limits on the time allowed for reconsideration.<br />
<br />
===Agency Reporting Requirements===<br />
<br />
Pursuant to the OMB guidelines, each agency was obligated to submit to OMB a report—following a draft report, public comment, and revisions—outlining its agency-specific information quality guidelines and how the guidelines ensure the quality of information, and also explaining the agency’s administrative mechanisms for allowing affected persons to seek correction of agency information that allegedly does not meet information quality standards (§§ IV.3-5). Following OMB review of the reports, agencies then had to post the reports on their respective websites and publish notice of the availability of the final reports in the ''Federal Register'' by October 1, 2002 (§ IV.5).<br />
<br />
Since January 1, 2004, agencies must report annually to the director of OMB the number and nature of complaints received by the agency regarding agency compliance with information quality guidelines (§ IV.6). The first reports are included in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf OMB’s report to Congress]. OMB does not apparently publish subsequent reports, but the information for individual agencies is available through links to their websites from the OMB site.<br />
<br />
===Judicial Review===<br />
<br />
Attempts to obtain judicial review of agency compliance with the IQA and in particular of agency refusals to make requested corrections to disseminated information have been uniformly unsuccessful. An early case, [http://www.ca4.uscourts.gov/Opinions/051097.P.pdf Salt Institute v. Leavitt], 440 F.3d 156 (4th Cir. 2006), held the plaintiff did not have standing because it was not injured by any failure of the agency to disseminate correct information, nor did the IQA create any individual right to correct information. ''See also'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/74C882991045080985257E580051699C/$file/12-1309-1555205.pdf Miss. Comm’n on Envtl. Quality v. EPA], 790 F.3d 138 (D.C. Cir. 2015). Other cases have denied relief on different grounds. Because the IQA does not itself provide a cause of action, challenges to agency actions have been brought under the [[Administrative Procedure Act|Administrative Procedure Act]]. However, courts have been persuaded either that review of a denial of a correction request is precluded because it is committed to agency discretion by law, ''see, e.g.'', ''Styrene Info. & Research Center, Inc. v. Sebelius'', 944 F. Supp. 2d 71 (D.D.C. 2013), or that the denial is not final agency action, because it does not affect the rights or obligations of the requester, ''see, e.g.'', ''Single Stick, Inc. v. Johanns'', 601 F. Supp. 2d 307 (D.D.C. 2009), ''aff’d on other grounds'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/3D1E66C834321D4785257807005A9A8A/$file/09-5099-1236845.pdf Prime Time Int’l Co. v. Vilsack], 599 F.3d 678 (D.C. Cir. 2010).<br />
<br />
===Peer Review Bulletin===<br />
On January 14, 2005, OMB published notice in the ''Federal Register'' of its [https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review] (''Bulletin''), 70 Fed. Reg. 2664 (Jan. 14, 2005), after having released and solicited public comment on two previous drafts dated September 15, 2003 ([https://www.govinfo.gov/content/pkg/FR-2003-09-15/pdf/03-23367.pdf 68 Fed. Reg. 54023]) and April 28, 2004 ([https://www.govinfo.gov/content/pkg/FR-2004-04-28/pdf/04-9572.pdf 69 Fed. Reg. 23230]). OMB issued the ''Bulletin'' under the IQA, Executive Order 12866, [https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf Regulatory Planning and Review] 58 Fed. Reg. 51735 (Oct. 4, 1993), and OMB’s authority to manage agencies under the President’s Constitutional authority to supervise the executive branch. The OMB’s [https://www.whitehouse.gov/omb/information-regulatory-affairs/ Office of Information and Regulatory Affairs] (OIRA) oversees implementation of the ''Bulletin'' in consultation with the [https://www.whitehouse.gov/ostp/ Office of Science and Technology Policy] (OSTP). <br />
<br />
The ''Bulletin'' establishes governmentwide guidance for peer review of agency scientific information that will be disseminated. “Scientific information” includes “factual inputs, data, models, analyses, technical information, or scientific assessments based on the behavioral and social sciences, public health and medical sciences, life and earth sciences, engineering, or physical sciences” (§ I.5). Under the ''Bulletin'', the definition of “dissemination” encompasses the IQA definition, but excludes research produced by government-funded scientists that does not represent agency views and displays a disclaimer to that effect. The definition also excludes information distributed for peer review and that bearing a disclaimer stating that the information’s distribution is solely for the purpose of pre-dissemination peer review (§ I.5).<br />
<br />
===Peer Review of Influential Scientific Information—Section II===<br />
<br />
Section II of the ''Bulletin'' mandates that agencies conduct peer reviews of influential scientific information intended for dissemination. The definition of “influential” is the same as that under the IQA. Section II grants agencies discretion to choose the reviewer selection process and the peer review mechanism. Reviewer selection must take into account reviewer expertise, the need for a balanced representation of perspectives, conflicts of interest, and the reviewers’ independence from the work product under review (§ II.3). In choosing a peer review mechanism, the agency must consider the information’s novelty and complexity, importance to decision making, and prior peer review, as well as any benefits and costs of review (§ II.4). Certain transparency requirements also apply to the peer review mechanism. The reviewers must have advance notice of how their comments will be conveyed. Reviewers must prepare a report describing their review, findings, and conclusions. The report must also provide the names and affiliations of the reviewers and “shall either (a) include a verbatim copy of each reviewer’s comments (either with or without specific attributions) or (b) represent the views of the group as a whole, including any disparate and dissenting views” (§ II.5). The agency is required to post the report on its website along with all related materials, discuss the report in the preamble to any related rulemaking, and include the report in the administrative record behind any related agency action (§ II.5).<br />
<br />
Agencies may commission independent entities to carry out reviewer selection and peer review (§ II.6). Influential scientific information that has already undergone adequate peer review is exempt from the requirements of section II. Principal findings, recommendations, and conclusions in official reports of the National Academy of the Sciences are presumed to have undergone adequate peer review (§ II.2).<br />
<br />
===Peer Review of Highly Influential Scientific Assessments—Section III===<br />
<br />
The ''Bulletin'' imposes requirements, in addition to the section II requirements, for the peer review of highly influential scientific assessments. A “scientific assessment” is “an evaluation of a body of scientific or technical knowledge that typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information” (§ I.7). The term “highly influential” means that the agency or the OIRA Administrator determines that dissemination could have an impact of more than $500 million in any one year or will be “novel, controversial, or precedent-setting, or has significant interagency interest” (§ III.2). The ''Bulletin'' provides that peer review of highly influential scientific assessments adhere to the following additional requirements:<br />
<br />
*Scientists employed by the sponsoring agency (outside of the peer review context) may not function as reviewers. An exception may be made if the agency determines that an agency scientist employed by a different agency of the Cabinet-level department possesses expertise essential to the review and does not hold a position of management or policy responsibility. The agency must obtain prior written approval on a nondelegable basis from the Secretary or Deputy Secretary to make such an exception (§ III.3.c).<br />
*Absent an essential need, the same reviewer should not participate in multiple peer reviews (§ III.3.d).<br />
*Reviewers must be provided information sufficient to enable them to understand the data, analytic procedures, and assumptions used to support the key findings or conclusions they are reviewing (§ III.4).<br />
*If feasible and appropriate, the agency must make the draft scientific assessment available for public comment and sponsor a public meeting attended by the reviewers. The reviewers should then have access to the public comments pertaining to significant scientific or technical issues (§ III.5).<br />
*“The peer review report shall include the charge to the reviewers and a short paragraph on both the credentials and relevant experiences of each peer reviewer” (§ III.6). The agency must also write a response to the report to be posted on the agency’s website explaining the agency’s agreement or disagreement with the report, the actions the agency has undertaken or will undertake in response to the report, and, if applicable, the reasoning behind the choice of those actions (§ III.6).<br />
<br />
===Additional Peer Review Guidelines=== <br />
<br />
Given a compelling rationale, the agency head may waive or defer the peer review requirements of sections II and III (§ VIII.3). Additionally, instead of adhering to the requirements of sections II or III, an agency may ensure the quality of scientific information by relying on information from the National Academy of Sciences, commissioning the National Academy of Sciences to conduct the peer review, or undertaking alternative procedures approved by the OIRA Administrator in consultation with OSTP (§ IV).<br />
<br />
“Peer review shall be conducted in a manner that respects (i) confidential business information and (ii) intellectual property” (§ VIII.2). In disclosing information about a reviewer, the agency must comply with the requirements of the [[Privacy Act]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim 552a] as amended, and OMB [https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A130/a130revised.pdf Circular A-130] (§ VIII.1). Information relating to certain national security, foreign affairs, or negotiations involving international trade or treaties is exempt from the peer review requirements if adhering to the requirements would interfere with the need for secrecy or promptness. Similarly exempt is information disseminated in the course of an individual agency adjudication or permit proceeding (unless the agency determines that peer review is practical and appropriate and that the influential dissemination is scientifically or technically novel); time-sensitive health or safety information; regulatory impact analysis or regulatory flexibility analysis subject to interagency review under Executive Order 12866; routine statistical information released by federal statistical agencies; accounting, budget, actuarial, and financial information; and information disseminated in connection with routine rules that materially alter entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof (§ IX).<br />
<br />
If an agency supports a regulatory action using information subject to the Bulletin, it must include in the administrative record, along with relevant materials, a certification explaining how the agency complied with the ''Bulletin''’s requirements (§ VII).<br />
<br />
Agencies must post on their websites, and update at least biannually, an agenda providing descriptions of all planned and ongoing influential scientific information subject to the ''Bulletin'', links to documents made public pursuant to the ''Bulletin'', and a peer review plan for each entry (§ V.2). Agencies must also establish a mechanism for allowing the public to comment on the adequacy of its peer review plans. Further, each agency is required to provide to OIRA, by December 15 of each year, a summary of the peer reviews conducted by the agency during the fiscal year (§ VI).<br />
<br />
The Bulletin states that it “does not create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its agencies or other entities, its officers or employees, or any other person” (§ XII), thereby seeking to avoid judicial review of agency compliance with the ''Bulletin''’s requirements.<br />
<br />
===Risk Assessment===<br />
<br />
In 1995, an interagency working group, co-chaired by OMB and OSTP, developed a set of principles to guide policymakers in assessing, managing, and communicating policies to address environmental, health, and safety risks. [https://georgewbush-whitehouse.archives.gov/omb/inforeg/regpol/jan1995_risk_analysis_principles.pdf Principles for Risk Analysis]. In 2006, OMB proposed to adopt uniform quality standards for agencies to adhere to in conducting risk assessments. However, in light of comments from agencies, the public, and the National Academy of Sciences, OMB decided not to adopt that proposal. Instead, in 2007 it issued [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis]. The 1995 Principles were divided into five parts: general principles, principles for risk assessment, principles for risk management, principles for risk communication, and priority setting. The 2007 Update reiterates those principles and further develops them in light of scientific advances in the previous 12 years.<br />
<br />
==Legislative History==<br />
<br />
On December 21, 2000, as a rider to the Treasury and General Government Appropriations Act for Fiscal Year 2001 ([https://www.congress.gov/106/plaws/publ554/PLAW-106publ554.pdf Pub. L. No. 106-554]), Congress enacted the IQA, which requires OMB to develop guidelines that establish quality standards for information disseminated by federal agencies. Congress accepted the rider to the appropriations bill without any hearings, floor debate, or legislative history specific to the IQA. However, the IQA amends the 1995 [[Paperwork Reduction Act]]’s (PRA) information dissemination requirements, which have some legislative history. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3504&num=0&edition=prelim Section 3504(d)(1)] of the PRA provides: “With respect to information dissemination, the [OMB] Director shall develop and oversee the implementation of policies, principles, standards, and guidelines to apply to Federal agency dissemination of public information, regardless of the form or format in which such information is disseminated.”<br />
<br />
The legislative history that accompanies the 1995 PRA amendments explains that the amendments “promote[] the theme of improving the quality and use of information to strengthen agency decisionmaking and accountability and to maximize the benefit and utility of information created, collected, maintained, used, shared, disseminated, and retained by or for the Federal Government.” [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995). Prior to the enactment of the IQA, OMB had not implemented the PRA’s section 3504(d)(1) information dissemination requirements. On June 22, 1998, the House approved the FY 1999 Treasury, Postal Service, and General Government Appropriations Bill, which contained a non-binding provision that closely resembles the IQA in encouraging OMB to develop policy and procedural guidance to ensure information quality. [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998). That provision provided that:<blockquote>The Committee urges the Office of Management and Budget (OMB) to develop, with public and Federal agency involvement, rules providing policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies, and information disseminated by non-Federal entities with financial support from the Federal government, in fulfillment of the purposes and provisions of the [[Paperwork Reduction Act]] of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ13/pdf/PLAW-104publ13.pdf Pub. L. No. 104-13]). The Committee expects issuance of these rules by September 30, 1999. The OMB rules shall also cover the sharing of, and access to, the aforementioned data and information, by members of the public. Such OMB rules shall require Federal agencies to develop, within one year and with public participation, their own rules consistent with the OMB rules. The OMB and agency rules shall contain administrative mechanisms allowing affected persons to petition for correction of information which does not comply with such rules; and the OMB rules shall contain provisions requiring the agencies to report to OMB periodically regarding the number and nature of petitions or complaints regarding Federal, or Federally-supported, information dissemination, and how such petitions and complaints were handled. OMB shall report to the Committee on the status of implementation of these directives no later than September 30, 1999.</blockquote>Representative Jo Ann Emerson and Senator John Shelby are recognized as the principal sponsors of the IQA.<br />
<br />
===Source Note:===<br />
<br />
OMB maintains a [https://www.whitehouse.gov/omb/information-regulatory-affairs/information-policy/ website] with links to government documents relevant to the IQA. After receiving the first annual reports from agencies, OMB published them in [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf a single OMB report] to Congress along with OMB’s summary of the data quality program.<br />
<br />
[http://thecre.com/quality/index.html The Center for Regulatory Effectiveness] also maintains an exhaustive and up-to-date archival site of documents relating to the IQA.<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<br />
*Paperwork Reduction Act of 1995, [https://www.congress.gov/104/crpt/hrpt37/CRPT-104hrpt37.pdf H.R. Rep. No. 104-37] (1995).<br />
*Treasury, Postal Service, and General Government Appropriations Bill, 1999, [https://www.congress.gov/105/crpt/hrpt592/CRPT-105hrpt592.pdf H.R. Rep. No. 105-592] (1998).<br />
<br />
===Executive Orders and White House Documents===<br />
<br />
*[https://www.govinfo.gov/content/pkg/FR-2021-02-10/pdf/2021-02839.pdf Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking], § 5(e), 86 Fed. Reg. 8845 (Feb. 10, 2021).<br />
*Scientific Integrity Task Force, White House Office of Science and Technology Policy, [https://www.whitehouse.gov/wp-content/uploads/2022/01/01-22-Protecting_the_Integrity_of_Government_Science.pdf Protecting the Integrity of Government Science] (2022).<br />
*White House Office of Science and Technology Policy, [https://www.govinfo.gov/content/pkg/FR-2022-03-03/pdf/2022-04466.pdf Request for Information to Support the Development of a Federal Scientific Integrity Policy Framework], 87 FR 12165 (2022).<br />
<br />
===OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Memoranda<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmcmemo.pdf Agency Final Information Quality Guidelines] (Sept. 5, 2002).<br />
**[https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/assets/OMB/inforeg/pmc_graham_100402.pdf Executive Branch Information Quality Law] (Oct. 4, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/pmc_oct03report.pdf Guidance for the Information Quality Annual Agency Report to OMB] (Oct. 17, 2003).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info_quality_posting_083004.pdf Posting of Information Quality Correction Requests and Responses] (Aug. 30, 2004).<br />
**M-07-24, [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/memoranda/2007/m07-24.pdf Updated Principles for Risk Analysis] (Sept. 19, 2007).<br />
*Other Documents<br />
**Administrator Speech: [https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/info-quality_march21.pdf OMB’s Role in Overseeing Information Quality], Remarks to Public Workshop on Information-Quality Guidelines (Mar. 21, 2002).<br />
**[https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/assets/OMB/inforeg/fy03_info_quality_rpt.pdf Information Quality: A Report to Congress], (Apr. 30, 2004).<br />
**[https://www.govinfo.gov/content/pkg/FR-2005-01-14/pdf/05-769.pdf Final Information Quality Bulletin for Peer Review], 70 Fed. Reg. 2664 (Jan. 14, 2005).<br />
**[https://www.govinfo.gov/content/pkg/FR-2006-01-17/pdf/E6-345.pdf Proposed Risk Assessment Bulletin], 71 Fed. Reg. 2600 (Jan 17, 2006).<br />
**M-19-15, [https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-15.pdf Improving Implementation of the Information Quality Act] (Apr. 24, 2019).<br />
</div><br />
<br />
===Other Government Documents===<br />
<br />
*Gov’t Accountability Office, GAO-06-765, [https://www.gao.gov/assets/260/251202.pdf Information Quality Act: Expanded Oversight and Clearer Guidance by the Office of Management and Budget Could Improve Agencies’ Implementation of the Act] (2006).<br />
*Gov’t Accountability Office, GAO-16-110, [https://www.gao.gov/assets/680/674386.pdf Information Quality Act: Actions Needed to Improve Transparency and Reporting of Correction Requests] (2015).<br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Daren Bakst, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3753181 Strengthening the Information Quality Act to Improve Federally Disseminated Public Health Information], 75 Food Drug L.J. 234 (2020).<br />
*Karl Bourdeau, ''Information Quality Act Challenges to Flawed Use of Science'', 19 Nat. Resources & Env’t 41 (2005).<br />
*James W. Conrad, Jr., ''The Information Quality Act—Antiregulatory Costs of Mythic Proportions?'', 12 Kan. J.L. & Pub. Pol’y 521 (2003).<br />
*Nathan Cortez, [http://lawreview.colorado.edu/wp-content/uploads/2018/05/Cortez-Regulation-by-Database.pdf Regulation by Database], 89 U. Colo. L. Rev. 1 (2018).<br />
*Alexander Nathan Hecht, [https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1119&context=jleg Administrative Process in an Information Age: The Transformation of Agency Action Under the Data Quality Act], 31 J. Legis. 233 (2005).<br />
*Stephen M. Johnson, ''Junking the “Junk Science” Law: Reforming the Information Quality Act'', 58 Admin. L. Rev. 37 (2006).<br />
*Stephen M. Johnson, [https://scholarship.law.edu/cgi/viewcontent.cgi?article=1188&context=lawreview Ruminations on Dissemination: Limits on Administrative and Judicial Review Under the Information Quality Act], 55 Cath. U. L. Rev. 59 (2005).<br />
*Michelle V. Lacko, Comment, ''The Data Quality Act: Prologue to a Farce or a Tragedy?'', 53 Emory L.J. 305 (2004).<br />
*Harold Magistrale, ''An Introduction to the Information Quality Act and Its Application to Environmental Regulation'', 38 Urb. Law. 561 (2006).<br />
*Paul R. Noe & John D. Graham, ''The Ascendancy of the Cost-Benefit State?'', 5 ALR Accord 85 (2020).<br />
*Kirk T. O’Reilly, ''Science, Policy, and Politics: The Impact of the Information Quality Act on Risk-Based Regulatory Activity at the EPA'', 14 Buff. Envtl. L.J. 249 (2007)<br />
*Kellen Ressmeyer, Note, [http://www.fclj.org/wp-content/uploads/2013/01/12-RessmeyerFINAL.pdf The Information Quality Act: The Little Statute that Could (or Couldn’t?): Applying the Safe Drinking Water Act Amendments of 1996 to the Federal Communications Commission], 59 Fed. Comm. L.J. 219 (2006).<br />
*Sidney A. Shapiro, [https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1153&context=wmelpr The Information Quality Act and Environmental Protection: The Perils of Reform by Appropriations Rider], 28 Wm. & Mary Envtl. L. & Pol’y Rev. 339 (2004).<br />
*Tammy P. Tideswell, [http://www.jag.navy.mil/documents/navylawreview/NLRVolume51.pdf The Information Quality Act: An Environmental Primer], 51 Naval L. Rev. 91 (2005).<br />
*Wendy E. Wagner, [https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1282&context=jlp Importing Daubert to Administrative Agencies Through the Information Quality Act], 12 J.L. & Pol’y 589 (2004).<br />
</div><br />
<br />
==Statutory Provisions==<br />
<br />
Information Quality Act <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3516&num=0&edition=prelim 44 U.S.C. § 3516 note]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Government_Performance_and_Results_Act&diff=1653Government Performance and Results Act2023-08-12T21:20:14Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section306&num=0&edition=prelim 306]; 31 U.S.C. §§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1105&num=0&edition=prelim 1105(a)(29)], [http://uscode.house.gov/view.xhtml?path=/prelim@title31/subtitle2/chapter11&edition=prelim 1115–1119], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section3515&num=0&edition=prelim 3515(a)], [http://uscode.house.gov/view.xhtml?path=/prelim@title31/subtitle6/chapter97&edition=prelim 9703–9704]; 39 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title39/part3/chapter28&edition=prelim 2801–2805]; enacted by [https://www.govinfo.gov/content/pkg/STATUTE-107/pdf/STATUTE-107-Pg285.pdf Pub. L. No. 103-62], 107 Stat. 286, Aug. 3, 1993. Added 31 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title31/subtitle2/chapter11&edition=prelim 1120-1125], as amended by [https://www.govinfo.gov/content/pkg/PLAW-111publ352/pdf/PLAW-111publ352.pdf Pub. L. No. 111-352], 124 Stat. 3866, Jan. 4, 2011. Amended 5 U.S.C. § 306(a)(8) and added 5 U.S.C. § 306(a)(9); [https://www.govinfo.gov/content/pkg/PLAW-115publ435/pdf/PLAW-115publ435.pdf Pub. L. No. 115-435], 132 Stat. 5529, Jan 14. 2019.<br />
<br />
'''Lead Agencies:'''<br />
<br />
[https://www.whitehouse.gov/omb/ Office of Management and Budget]<br />
<br />
[http://www.gao.gov U.S. Government Accountability Office, General Government Division]<br />
<br />
==Overview==<br />
<br />
===Background=== <br />
<br />
Concerns with government efficiency and shrinking dollars are stimulating federal agencies to improve the performance of their programs. The Government Performance and Results Act of 1993 (GPRA) provides a pathway for addressing these challenges and is intended to bring about a fundamental transformation in the way government programs and operations are managed and administered. GPRA places greater emphasis within the government on what programs are actually accomplishing and how well the accomplishments match programs’ objectives.<br />
<br />
The law requires federal agencies to develop strategic plans describing their overall goals and objectives, annual performance plans containing quantifiable measures of their progress, and performance reports describing their success in meeting those standards and measures. Enacted during the first year of the Clinton Administration, GPRA could loosely be viewed as part of the Administration’s larger “Reinventing Government” initiative.<br />
<br />
In January 2011, President Obama signed the GPRA Modernization Act of 2010 (GPRAMA), a substantial modification to the 1993 law. Among other things, GPRAMA revised several existing GPRA mechanisms and codified creations and ideas of both the Bush and Obama Administrations. The law also created new agency positions and methods of cross-agency collaboration with the hopes of constructing a more synergistic structure to better effect the goals of GPRA.<br />
<br />
===Coverage=== <br />
<br />
Within the federal government, GPRA applies to all federal entities defined by 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section105&num=0&edition=prelim 105] as being an “agency,” with few exceptions. It covers 14 Cabinet departments, virtually all independent establishments (agencies), and all government corporations. The U.S. Postal Service is covered by the GPRA under a special provision designed to recognize its special status. Certain provisions in GPRAMA, however, only apply to the [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section901&num=0&edition=prelim 24 so-called CFO Agencies], i.e., those with Chief Financial Officers. <br />
<br />
===Main Features===<br />
<br />
GPRA’s features, as amended by GPRAMA, include:<br />
<br />
*A requirement for federal departments and agencies to prepare agency strategic plans which operate on a four- (fiscal) year basis, beginning with the President’s budget proposal in fiscal year 2015.<br />
*A requirement that federal departments and agencies prepare annual performance plans setting out specific performance goals for each fiscal year.<br />
*A requirement that the Office of Management and Budget (OMB) prepare annual federal government performance plans based on the agency annual performance plans, develop federal government priority goals, and establish a single, performance-related [https://www.performance.gov/ website]. The governmentwide performance plan is to be a part of the President’s budget and transmitted to Congress. In the agency and governmentwide performance plans, the levels of program performance to be achieved is to correspond with the program-funding level in the budget.<br />
*A requirement that OMB determine whether agencies have met their performance goals and recommend that Congress take certain corrective measures if agencies fail to meet goals for three consecutive years.<br />
*A requirement that federal departments and agencies submit an Agency Performance Update (APU) to the President and Congress which compares actual performance with the goal levels that were set in the annual performance plan. The annual report is due 150 days after the end of a fiscal year.<br />
*A requirement that certain federal agencies establish high-priority, near-term objectives every two years, otherwise known as “agency priority goals,” and establish a goal leader to attain such goals.<br />
*A requirement for agencies to provide Congress annually with a list of all plans and reports mandated by statute or directed in congressional reports. From this list, the agency must identify a minimum percentage of the products as “outdated” or “duplicative.”<br />
*A requirement that agencies establish Chief Operating Officers to serve as overseers and managers of an agency’s strategy and goals.<br />
*A codification of the [https://www.pic.gov/ Performance Improvement Council (PIC)] (established by Executive Order 13450, [https://www.govinfo.gov/content/pkg/FR-2007-11-15/pdf/07-5726.pdf Improving Government Program Performance]), which is responsible for facilitating agency coordination, resolving any “crosscutting” performance issues, and advancing federal government priority goals.<br />
*Provisions giving managers greater flexibility in managing by allowing the waiver of various administrative controls and limitations. In return, managers are expected to be more accountable for the performance of their programs and operations.<br />
<br />
===Purposes===<br />
<br />
According to GPRA’s proponents, it will help restore the public’s confidence in government; agency management will be able to articulate and communicate missions, goals, and accomplishments better; and the President and Congress will be better able to decide which government efforts are worth continuing, expanding, or both, and which are best left to state and local government of the private or nonprofit sectors. GPRA’s explicit goals are to:<br />
<br />
*Initiate program performance reform by:<br />
**requiring the creation of strategic plans with program goals,<br />
**measuring program performance against those goals, and<br />
**reporting publicly on progress.<br />
*Improve federal program effectiveness and public accountability: <br />
**by promoting a new focus on reporting publicly on progress,<br />
**helping federal managers improve service delivery by requiring the development of plans to meet program objectives,<br />
**providing information about program results and service quality, and<br />
**improving congressional decision making and internal management of the federal government by providing more objective information.<br />
<br />
The desire to strengthen the American people’s confidence in government also propelled GPRAMA’s supporters. The driving justification of GPRAMA was concisely synopsized in [https://www.congress.gov/111/crpt/hrpt504/CRPT-111hrpt504.pdf H. Rep. No. 111-504] (2010):<blockquote>Weaknesses in established management processes pertaining to the use of information about the performance of Federal agencies undermine the confidence of the American people in the Government and reduce the Federal Government’s ability to adequately address public needs. To restore the confidence of the American people in its Government and to increase the Federal Government’s ability to adequately address vital public needs, the Federal Government must continually seek to improve the effectiveness, efficiency, and accountability of Federal programs.</blockquote>The same report also expressed the bill’s primary purposes:<br />
<br />
*identify clear priorities and set outcome-focused, measurable, ambitious targets for those priorities;<br />
*establish regular goal-focused, data-driven performance assessments to measure progress and adjust strategies;<br />
*set accountability expectations that encourage managers to innovate; and<br />
*deliver transparent, coherent, and candid communication of results.<br />
<br />
The retooling of strategic plans, creation of agency and governmentwide priority goals, codification of the PIC, institutionalization of performance improvement officers, focus on synergizing agency and crosscutting goals and strategies, and the establishment of performance.gov became the principal means to realize these objectives.<br />
<br />
===Agency Strategic Plans (ASPs)===<br />
<br />
Agency strategic plans (ASPs) provide the foundation for carrying out all other GPRA requirements. The strategic plan states an agency purpose (i.e., why an agency and its programs exist, what will be accomplished and when), defines the long-range course of the agency with sufficient precision to guide the short-term actions of agency managers, and describes how any of the agency’s general goals and objectives will contribute governmentwide priority goals. GPRAMA adjusts the timing of an agency’s strategic plan to coincide with presidential terms and budget proposals. Thus, an ASP must be updated every four years and must cover four fiscal years. When working on an ASP, GPRAMA also requires agencies to confer with Congress “periodically,” including majority and minority members of “appropriate” committees. Agencies, however, only have to consult with nonfederal stakeholders once every four years when developing an ASP. Agencies also must confer with “appropriate” congressional committees every two years, irrespective of their work on an ASP.<br />
<br />
===Annual Performance Plans=== <br />
<br />
Performance plans are to be released annually by agencies and posted on their public websites. They are tools that discuss comparisons of actual performance achieved with a performance level specified for each performance goal; explain why a goal was not met and future plans for achieving it; offer summary findings of any program evaluations done that fiscal year; identify “goal leaders” responsible for achievement of each performance goal (see immediately subsequent section); identify “low-priority program activities” and provide “evidence-based justification” for the low-priority designation; and explain use of any waiver of administrative requirements and the effectiveness of these waivers in achieving performance goals.<br />
<br />
===Performance Goals=== <br />
<br />
A fulcrum of annual performance plans is an agency’s performance goals. A performance goal is a target level of performance expressed as a quantifiable objective against which actual achievement can be compared. If the Director of OMB determines that an agency is unable to articulate a goal or goals quantitatively, the agency shall either provide a description of a minimally-effective program and a successful program or a description of goals with “sufficient precision” to make them amenable to independent and accurate assessment. Plans must also contain performance indicators or values that will be used in measuring outputs and outcomes; a description of the means to be used to verify and validate measured values; and a description of operational processes, skills and technology, and human capital, information, or other resources required to meet the performance goals.<br />
<br />
Under GPRAMA, the plans now cover the forthcoming fiscal year and the current year in which the plan is submitted. Fiscal year 2013 was the first year agencies were required to establish priority goals.<br />
<br />
===Agency Priority Goals (APGs)===<br />
<br />
Modeled after the Obama Administration’s high-priority performance goals released with the President’s FY2011 budget proposal, agency priority goals are a small, discrete subgroup of agency performance goals that should represent an agency’s “highest priorities” within a two-year time frame. In other words, agency priority goals (APGs) are salient near-term objectives that further the longer-term, outcome-oriented strategic goals in an agency’s strategic plan. Annual performance plans must contain one or more priority goals for each of the major programs and operations covered in the strategic plan.<br />
<br />
Setting APGs is not a responsibility of every agency, however. GPRAMA requires that APGs be produced only by the 24 CFO agencies, and any additional agencies OMB may select. Those agencies that are required to establish APGs must designate an agency official as a “goal leader” who is charged with accomplishing the APGs. The agency head is tasked with determining what will be an agency’s “highest priorities” based on its consultations concerning its strategic plan and OMB-developed federal priority goals.<br />
<br />
Finally, under GPRAMA, an agency head and deputy head must conduct quarterly priority progress reviews. While agencies must post some information contained in these reviews on OMB’s website, GPRAMA does not mandate that the agencies make the reviews themselves accessible or transparent to the public.<br />
<br />
===Annual Performance Updates (APUs)===<br />
<br />
Annual performance updates (APUs) should contain a comparison of the actual performance achieved, with the performance levels specified for each performance goal and performance indicator in the agency performance plan. If a performance goal was not met, it must have an explanation of why the goal was not met, along with either the plans and schedules for achieving the performance goal in the future or a statement that the performance goal as established is impractical or infeasible, and expressing the agency’s intention to modify or discontinue the goal. Agencies are to submit updates no later than 150 days after the end of each fiscal year. Under GPRAMA, an agency also must provide, with greater frequency, “updates of actual performance on indicators that provide data of significant value to the Government, Congress, or program partners at a reasonable level of administrative burden.” Performance updates are supposed to cover the same duration of agency activity as the performance plan.<br />
<br />
===Chief Operating Officer=== <br />
<br />
GPRAMA designates the deputy head of each agency, or its equivalent, as the Chief Operating Officer (COO). The COO is responsible for (1) improving the agency’s management and performance and (2) providing systematic organization management to enhance performance and further the agency’s mission and goals through the use of strategic and performance planning, measurement, analysis, regular assessment of progress, and use of performance information to improve results.<br />
<br />
===OMB Agency Oversight===<br />
<br />
Under GPRAMA, [https://www.whitehouse.gov/omb/ OMB] must submit an annual report on “unmet goals” to every agency, two congressional committees, and the Government Accountability Office (GAO). If OMB finds that an agency has failed to meet its performance goals for one fiscal year, that agency must submit a performance improvement plan to OMB. If such failure persists for two consecutive fiscal years, the “Administration” is required to provide Congress with a prescription for improvement. In cases of failure for three consecutive fiscal years, the GPRAMA requires OMB to submit to Congress its recommendations for punitive or corrective action, including budget reduction and statutory restructuring.<br />
<br />
===Performance Improvement Council===<br />
<br />
An interagency council originally established by President Bush’s Executive Order 13450, [https://www.govinfo.gov/content/pkg/FR-2007-11-15/pdf/07-5726.pdf Improving Government Program Performance], in 2007, [https://www.pic.gov/ PIC] was officially codified by GPRAMA and mainly comprises performance improvement officers: career or politically appointed senior executives at an agency who largely serve as advisers within a given agency and report directly to an agency’s COO. PIC is designed to harmonize any crosscutting performance issues and assist OMB in achieving federal government priority goals. GPRAMA also authorizes OMB to create a cadre of performance-monitoring personnel by hiring up to two people for each CFO agency to serve at the direction of OMB’s Deputy Director for Management. OMB’s Deputy Director for Management also chairs PIC, determines its agenda, and directs its work. PIC is primarily tasked with assisting the Director of OMB in achieving federal government priority goals. There appears to be nothing in the new legislation that expressly requires PIC’s activities to be publicly or even congressionally transparent.<br />
<br />
===Performance.gov===<br />
<br />
Finalized in February of 2014 and concurrent with the President’s 2015 budget, [https://www.performance.gov/ Performance.gov] is the OMB-run website that consolidates and publishes “readily accessible” information on cross-agency priority goals, agency priority goals, agency strategic plans, annual performance plans, and annual performance updates (31 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1122&num=0&edition=prelim § 1122(b)]; OMB [https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf Circular A-11] (2021)). The site’s URL and infrastructure predated GPRAMA’s effectuation date. The Obama Administration launched it on August 25, 2011, in part, to “provide a window” into the Administration’s own executive improvement plan—the Accountable Government Initiative.<br />
<br />
===Federal Government Performance Plan (FGPP) and Priority Goals (FGPGs)===<br />
<br />
Under the direction of OMB, federal government performance plans (FGPP) determine performance goals for the next fiscal year and update federal government priority goals (FGPGs) for the current fiscal year. Previously unspecified under GPRA, GPRAMA requires the content of FGPPs to include executive-wide goals themselves and “common” federal government performance indicators that gauge progress across agencies toward shared goals. GPRAMA mandates that OMB submit FGPPs to Congress with the President’s budget proposal, beginning with fiscal year 2013 and continuing each year thereafter.<br />
<br />
Under GPRAMA, OMB must develop and update federal government priority goals at least every four years and make them available during the President’s budget proposal at the beginning of the second year of a President’s term. Interim FGPGs were required to be submitted beginning with the President’s budget proposal for fiscal year 2013. Required to be long-term in scope, the goals are of two types: (1) outcome-centric goals that are designed to be crosscutting in nature and cover certain policy areas (these are also referred to as mission-oriented or cross-agency priority goals (CAP goals)), and (2) goals for management improvement in areas such as financial management and procurement (mission-support goals). In crafting these goals, OMB must consult with specific committees listed in GPRA and any other committees “as determined appropriate.” Like agency-level performance goals, each federal government goal is required to have a goal leader and is subject to “quarterly priority progress reviews” each fiscal year.<br />
<br />
===Waivers to Promote Management Flexibility===<br />
<br />
In addition to strategic planning and performance measurement, GPRA is intended to promote greater flexibility for managers in return for greater accountability for results. This flexibility is introduced by permitting waiver of selected non-statutory requirements and controls in return for achieving greater program results than would otherwise occur. These administrative and procedural requirements are prescribed by agency rules and directives, or are imposed across the government by an agency that has a central management role, and cover areas such as financial management, personnel, supply, and buildings.<br />
<br />
===Pilot Projects===<br />
<br />
Pilot projects have been employed under GPRA to demonstrate whether agencies can prepare annual performance plans that meet GPRA requirements and to identify any difficulties agencies are encountering in plan preparation. Pilot projects were officially designated in all 15 Cabinet departments and an equivalent number of other agencies. The pilot projects range from the very large—the entirety of the Social Security Administration and the Internal Revenue Service—to the very small.<br />
<br />
==Legislative History==<br />
GPRA’s antecedents can be traced back over 30 years; most of its predecessors largely failed to take root. The first was the Program, Planning, and Budgeting System (PPBS), which was introduced in the 1960s and sought to extend the program management and budgeting scheme then being used by the Department of Defense to the government-at-large. PPBS was succeeded in the 1970s by Management by Objective (MBO) and then by Zero-Base Budgeting (ZBB). Within the federal government, both MBO and ZBB soon became artifacts, although an evolved form of PPBS continues to be used in the Department of Defense. During the 1980s, several initiatives—including productivity improvement, quality management, and a short-lived resurrection of MBO—were featured.<br />
<br />
GPRA, by comparison, was created as a law, unlike its predecessors, which were presidential directives. Its origin can primarily be traced to two separately conceived proposals. One proposal was described in the ''Management Report'' (Jan. 1989) of President Reagan; his report contained a chapter, prepared by OMB staff, titled “Government of the Future,” which outlined the basic structure of what would become GPRA four years later. Another proposal came from Senator William Roth, who in 1990 first introduced the legislation that would eventually become the GPRA. In addition, the Chief Financial Officers Act ([https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg2838.pdf Pub. L. No. 101-576]) became law in 1990. Several features of the Chief Financial Officers Act also helped lay a foundation for GPRA.<br />
<br />
On October 3, 1990, Senator Roth introduced S. 3154, the Federal Program Performance Standards and Goals Act of 1990, which was referred that same day to the Committee on Governmental Affairs. No hearings were held on the bill, but it was discussed by Senator Roth and witnesses at October 3 and 11 hearings on ''OMB’s Response to Government Management Failures'' held by the Committee on Governmental Affairs.<br />
<br />
On January 14, 1991, Senator Roth introduced S. 20, the Federal Program Performance Standards and Goals Act of 1991, which was referred that day to the Committee on Governmental Affairs. The legislation differed from the version introduced in October 1990 only by the addition of a Findings and Purposes section.<br />
<br />
The Senate Committee on Governmental Affairs held hearings on S. 20 on May 23, 1991, and May 5, 1992. The Committee considered S. 20 on August 5, 1992. It adopted by voice vote an amendment in nature of a substitute offered by Senators Roth, John Glenn, and William Cohen, retitling the bill the Government Performance and Results Act of 1992, providing for initiation of implementation with a set of three-year pilot projects before government-wide application, and making other changes, and voted to report the bill favorably by voice vote. The Committee on Governmental Affairs reported S. 20 as amended on September 29, 1992. S. Rep. No. 102-429 (1992). The Senate passed the bill on October 1, 1992, under unanimous consent, but the House of Representatives took no action during that Congress.<br />
<br />
On January 21, 1993, Senator Roth (with Senators Glenn, Bob Graham, Howard Metzenbaum, John McCain, Daniel Akaka, Charles Robb, and Richard Lugar as cosponsors) reintroduced the bill as S. 20, the [https://www.congress.gov/103/bills/s20/BILLS-103s20is.pdf Government Performance and Results Act of 1993]. That same day, it was referred to the Committee on Governmental Affairs. The legislation was very similar to the version passed by the Senate the preceding year. In early 1993, President Clinton gave early and strong support for the proposed legislation. The Administration expressly endorsed S. 20 at a hearing on March 11, 1993, before the Senate Committee on Governmental Affairs. On March 24, 1993, the Committee voted to report S. 20 as amended.<br />
<br />
GPRA was subsequently passed by both the Senate and House of Representatives without objection and was promoted and supported by members of both political parties.<br />
<br />
Eighteen years later, Congress substantially overhauled GPRA when it passed the [https://www.congress.gov/111/plaws/publ352/PLAW-111publ352.pdf Government Performance and Results Modernization Act of 2010 (GPRAMA)]. The GPRMA’s passage was largely due to the efforts of Representative Henry Cuellar and Senators Tom Carper and Mark Warner. [https://www.gao.gov/assets/160/157517.pdf GAO’s 2004 report on the state of GPRA], however, was the legislation’s genesis. In that report, the GAO identified structural shortcomings undermining GPRA’s intended effect, including “mission fragmentation” that inhibited intra- and interagency goals and strategies. In response, Representative Todd Platts introduced the [https://www.congress.gov/108/bills/hr3826/BILLS-108hr3826ih.pdf Program Assessment and Results Act] (H.R. 3826 and H.R. 185) in the 108th and 109th Congresses. Neither bill went anywhere after being reported out of committee.<br />
<br />
Nevertheless, building off Representative Platts’s legislative foundation, in April of 2009, Representative Cuellar introduced the [https://www.congress.gov/111/bills/hr2142/BILLS-111hr2142ih.pdf Government Efficiency, Effectiveness, and Performance Improvement Act of 2010] (H.R. 2142), which was referred to the House Committee on Oversight and Government Reform and then to the Subcommittee on Government Management, Organization, and Procurement. On June 14, 2010, the Committee reported H.R. 2142 as amended. [https://www.congress.gov/111/crpt/hrpt504/CRPT-111hrpt504.pdf H. Rep. No. 111-504] (2010). It was placed on the union calendar that same day. Two days later, on a motion to suspend the rules and pass the bill, the House agreed by voice vote. The next day, the Senate received the bill and referred it to the Committee on Homeland Security and Government Affairs. On December 7, 2010, Senator Lieberman reported the bill with an amendment. [https://www.congress.gov/111/crpt/srpt372/CRPT-111srpt372.pdf S. Rep. No. 111-372] (2010). On December 16, the Senate passed the bill by unanimous consent. The following day, the House’s attempt to suspend the rules and agree to the Senate amendment failed to secure the requisite two thirds majority (212-131). Following a series of parliamentary actions, the House finally agreed to the Senate amendment on December 21, 2010.<br />
<br />
By the time H.R. 2142 passed both houses, it had undergone a significant evolution. The original version was relatively skeletal in scope and content. In essence, as introduced, Representative Cuellar’s bill required each agency head to conduct performance reviews of each agency program in conjunction with the Director of OMB, required the Director to provide Congress annually with corresponding information and a performance improvement plan, and codified agency performance improvement officers and PIC. After it had been reported from committee and by the time it passed the House, the bill, among other things, mandated that each agency head develop near- and long-term “priority goals,” detailed the duties of the new performance improvement officers, and instructed OMB to construct a mechanism for interested persons to comment on agency goals. It was not until the Senate committee report that the bill resembled its current iteration, providing for a much more expanded supervisory role for OMB, designating the deputy head of each agency as the COO, and requiring the creation of a new website (that would become Performance.gov) and the development of a federal government performance plan and crosscutting priority goals. Senator Tom Coburn also added the amendment that assigned a punitive function to OMB (recommendations for budget reduction or elimination) vis-à-vis agencies that have failed to meet goals for three consecutive years. Finally, the Senate also reduced the legislation’s authorizing funds by half, from $150 million to $75 million.<br />
<br />
Despite the strong bipartisan support for GPRAMA, Representative Darrell Issa remained a forceful opponent of the bill. Representative Issa primarily objected to it on the grounds that it was duplicative and wasteful, arguing that it cost taxpayers $75 million to codify much of what the President already intended to do through executive order.<br />
<br />
President Obama did not share Representative Issa’s concerns and backed the bill because, in part, (1) it shifted away from a controversial metric system implemented by the Bush Administration (Performance Assessment Rating Tools) and (2) it meshed well with his Accountable Government Initiative, which aimed to reduce government waste, increase transparency, and create “open government plans.”<br />
<br />
On January 4, 2011, President Obama signed H.R. 2412, which became [https://www.congress.gov/111/plaws/publ352/PLAW-111publ352.pdf Pub. L. No. 111-352].<br />
<br />
===Source Note===<br />
Several executive and legislative agency documents lay out requirements for most federal agencies’ activities to fulfill the GPRA’s provisions. These include [https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf OMB Circular A-11], Preparation, Submission, and Execution of the Budget (2021), and Cong. Research Serv., R42379, ''Changes to the Government Performance and Results Act (GPRA): Overview of the New Framework of Product and Processes'' (2012).<br />
<br />
GAO has had a longstanding interest in improving government management through the use of strategic planning and performance measurement. Since 1973, GAO also has produced over 70 reports on performance measures and currently has nearly a dozen ongoing efforts to assess measurement in specific agencies. GAO has published an executive guide on implementing GPRA and GPRAMA, as well as numerous reports discussing various aspects of agency implementation.<br />
<br />
Optimizing government performance is also the defining mission of ACUS. Accordingly, ACUS has commissioned a [https://www.acus.gov/sites/default/files/documents/GPRAMA%20Project_Final%20Report_Fountain_12_3_13.pdf report] and issued [https://www.acus.gov/sites/default/files/documents/GPRAMA%20_%20Final%20Recommendation.pdf Recommendation 2013-7] on improving GPRAMA’s implementation.<br />
<br />
Several entities have regular commentary regarding GPRA, strategic planning, and performance evaluation, including the Center for Effective Government and the IBM Center for Improving Government Performance.<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*S. Rep. No. 102-429 (1992).<br />
*S. Rep. No. 103-58 (1993).<br />
*Government Efficiency, Effectiveness, and Performance Improvement Act of 2010, [https://www.congress.gov/111/crpt/hrpt504/CRPT-111hrpt504.pdf H. Rep. No. 111-504] (2010).<br />
*GPRA Modernization Act of 2010, [https://www.congress.gov/111/crpt/srpt372/CRPT-111srpt372.pdf S. Rep. No. 111-372] (2010).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112shrg67636/pdf/CHRG-112shrg67636.pdf Roadmap for a More Efficient and Accountable Federal Government: Implementing the GPRA Modernization Act], J. Hearing Before the Oversight of Gov’t Mgmt., the Fed. Workforce, and the D.C. Subcomm. and the Fed. Fin. Mgmt., Gov’t Info., Fed. Servs., and Int’l Sec. Subcomm. of the S. Comm. on Homeland Sec. and Gov'tal Affairs, 112th Cong. (2011).<br />
</div><br />
<br />
===Executive Orders and OMB/OIRA Documents===<br />
<br />
*[https://govinfo.library.unt.edu/npr/library/resource/gpraprmr.html Primer on Performance Management] (1995).<br />
*Executive Order 13807, [https://www.govinfo.gov/content/pkg/FR-2017-08-24/pdf/2017-18134.pdf Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects] (Aug. 15, 2017).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf Circular A-11, Preparation, Submission, and Execution of the Budget] (rev. 2022).<br />
<br />
===ACUS Recommendations===<br />
<br />
*2013-7 [https://www.acus.gov/sites/default/files/documents/GPRAMA%20_%20Final%20Recommendation.pdf GPRA Modernization Act of 2010: Examining Constraints To, and Providing Tools For, Cross-Agency Collaboration]<br />
<br />
==GAO Documents==<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO/T-GGD-95-193, [https://www.gao.gov/assets/110/106122.pdf Managing for Results: Status of the Government Performance and Results Act] (1995).<br />
*GAO/GGD-96-118, [https://www.gao.gov/assets/80/76262.pdf Executive Guide: Effectively Implementing the Government Performance and Results Act] (1996).<br />
*GAO/T-GGD-96-79, [https://www.gao.gov/assets/110/106370.pdf Managing for Results: Achieving GPRA’s Objectives Requires Strong Congressional Role] (1996).<br />
*GAO/GGD/AIMD-98-52, [https://www.gao.gov/assets/230/225188.pdf Managing for Results: The Statutory Framework for Performance-Based Management and Accountability] (1998).<br />
*GAO-04-38, [https://www.gao.gov/assets/160/157517.pdf Results-Oriented Government: GPRA Has Established a Solid Foundation for Achieving Greater Results] (2004).<br />
*GAO-11-617T, [https://www.gao.gov/assets/130/126150.pdf GPRA Modernization Act Implementation Provides Important Opportunities to Address Government Challenges] (2011).<br />
*GAO-14-268, [https://www.gao.gov/assets/670/662517.pdf Reexamining Regulations: Agencies Often Made Regulatory Changes; but Could Strengthen Linkages to Performance Goals] (2014).<br />
*GAO-13-356, [https://www.gao.gov/assets/660/653789.pdf Managing for Results: Agencies Have Elevated Performance Management Leadership Roles, but Additional Training is Needed] (2013).<br />
*GAO-13-518, [https://www.gao.gov/assets/660/655541.pdf Managing for Results: Executive Branch Should More fully Implement the GPRA Modernization Act to Address Pressing Government Challenges] (2013).<br />
*GAO-13-517, [https://www.gao.gov/assets/660/655059.pdf Managing for Results: Leading Practices Should Guide the Continued Development of Performance.gov] (2013).<br />
*GAO-17-740R, [https://www.gao.gov/assets/690/687009.pdf Managing for Results: Selected Agencies' Experiences in Implementing Strategic Review] (2017).<br />
*GAO-17-775, [https://www.gao.gov/assets/gao-17-775.pdf Managing for Results: Further Progress Made in Implementing the GPRA Modernization Act, but Additional Actions Needed to Address Pressing Governance Challenges] (2017).<br />
*GAO-18-609SP, [https://www.gao.gov/assets/700/694269.pdf Managing for Results: Government-wide Actions Needed to Improve Agencies' Use of Performance Information in Decision Making] (2018).<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Chief Fin. Officers Council, ''Streamlining Governmentwide Statutory Reports'' (1995).<br />
*Chief Fin. Officers Council, ''Implementation of the Government Performance and Results Act'' (1995).<br />
*Chief Fin. Officers Council, ''Guiding Principles for Implementing GPRA'' (1995).<br />
*''Congressional Consultations on the Implementation of the Government Performance and Results Act'' (1996).<br />
*Cong. Research Serv., ''Performance Measure Provisions in the 105th Congress: Analysis of a Selected Compilation'' (1998).<br />
*Clinton T. Brass, Cong. Research Serv., R42379, ''Changes to the Government Performance and Results Act (GPRA): Overview of the New Framework of Product and Processes'' (2012).<br />
*U.S. Dep’t of Energy, ''Guidelines for Strategic Planning'' (1996).<br />
*U.S. Dep’t of Energy, [https://www.directives.doe.gov/directives-documents/100-series/0120.1-EGuide-5/@@images/file Guidelines for Performance Measurement] (1996).<br />
*U.S. Dep’t of the Navy, Archester Houston & Steven L. Dockstader, ''Total Quality Leadership Office, Total Quality Leadership: A Primer'' (1997).<br />
*Internal Revenue Serv., Office of Econ. Analysis, ''Best Practices: The IRS Research Project on Integrating Strategic Planning, Budgeting, Investment and Review'' (1996).<br />
*Nat’l Aeronautics and Space Admin., ''Strategic Planning and Strategic Management within NASA: A Case Study'' (1996).<br />
*Nat’l Aeronautics and Space Admin., [https://www.hq.nasa.gov/office/codez/plans/2000Handbook.pdf NASA Strategic Management Handbook] (2000).<br />
*Nat’l Highway Traffic Safety Admin., ''The National Highway Traffic Safety Administration Case Study: Strategic Planning and Performance Measurement'' (1996).<br />
*Office of Pers. Mgmt., ''Government Performance & Results Act: A Multimedia Orientation & Toolkit'' (1997).<br />
</div><br />
<br />
===Books and Articles===<br />
<br />
*Jane Fountain, [https://www.acus.gov/sites/default/files/documents/Revised_Fountain%20Draft%20GPRMA%20Project%20Report_12_2_13.docx.pdf The GPRA Modernization Act Of 2010: Examining Constraints To, And Providing Tools For, Cross-Agency Collaboration] (Dec. 5, 2013) (report to ACUS).<br />
*Jody Freeman & Jim Rossi, [https://harvardlawreview.org/wp-content/uploads/pdfs/vol125_freeman_rossi.pdf Agency Coordination in Shared Regulatory Space], 125 Harv. L. Rev. 1331 (2012).<br />
*Seth D. Harris, Zealous Advocacy for Social Change: [https://wvlawreview.wvu.edu/files/d/8ca1c588-9940-4902-8c42-77fa07876e84/harris-print2.pdf Managing for Social Change: Improving Labor Department Performance in a Partisan Era], 117 W. Va. L. Rev. 987 (2015).<br />
*Mary L. Heen, ''Reinventing Tax Expenditure Reform: Improving Program Oversight Under the Government Performance and Results Act'', 35 Wake Forest L. Rev. 751 (2000).<br />
*John M. Kamensky, ''GPRA Modernization Act Explained'', IBM Ctr. for the Bus. of Gov’t.<br />
*Donald Moynihan, ''The New Federal Performance System: Implementing the GPRA Modernization Act'', IBM Ctr. for the Bus. of Gov’t (2013).<br />
*Nat’l Acads., Comm. on Sci., Eng’g, and Pub. Policy (COSEPUP), [https://www.ncbi.nlm.nih.gov/books/NBK44123/pdf/Bookshelf_NBK44123.pdf Implementing the Government Performance and Results Act for Research: A Status Report] (2001).<br />
*Sidney A. Shapiro & Rena Steinzor, Capture, ''Accountability, and Regulatory Metrics'', 86 Tex. L. Rev. 1741 (2008).<br />
*Paul R. Verkuil & Jane E. Fountain, ''The Administrative Conference of the United States: Recommendations to Advance Cross-Agency Collaboration under the GPRA Modernization Act'', 74 Pub. Admin. Rev. 10 (2014).<br />
<br />
==Statutory Provisions==<br />
Government Performance and Results Act, [https://www.govinfo.gov/content/pkg/STATUTE-107/pdf/STATUTE-107-Pg285.pdf Pub. L. No. 103-62]. <br />
<br />
U.S. Code<br />
<br />
*Title 5<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section306&num=0&edition=prelim § 306. Agency strategic plans]<br />
*Title 31<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1105&num=0&edition=prelim § 1105. Budget contents and submission to Congress]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1115&num=0&edition=prelim § 1115. Federal Government and agency performance plans]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1116&num=0&edition=prelim § 1116. Agency performance reporting]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1117&num=0&edition=prelim § 1117. Exemption]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1118&num=0&edition=prelim § 1118. Pilot projects for performance goals]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1119&num=0&edition=prelim § 1119. Pilot projects for performance budgeting]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1120&num=0&edition=prelim § 1120. Federal Government and agency priority goals]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1121&num=0&edition=prelim § 1121. Quarterly priority progress reviews and use of performance information]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1122&num=0&edition=prelim § 1122. Transparency of programs, priority goals, and results]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1123&num=0&edition=prelim § 1123. Chief Operating Officers]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1124&num=0&edition=prelim § 1124. Performance Improvement Officers and the Performance Improvement Council]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section1125&num=0&edition=prelim § 1125. Elimination of unnecessary agency reporting]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section3515&num=0&edition=prelim § 3515. Financial statements of agencies]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section9703&num=0&edition=prelim § 9703. Managerial accountability and flexibility]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section9704&num=0&edition=prelim § 9704. Pilot projects for managerial accountability and flexibility]<br />
*Title 39<br />
**[http://uscode.house.gov/view.xhtml?path=/prelim@title39/part3/chapter28&edition=prelim Chapter 28—Strategic Planning and Performance Management]<br />
***[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title39-section2801&num=0&edition=prelim § 2801. Definitions]<br />
***[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title39-section2802&num=0&edition=prelim § 2802. Strategic plans]<br />
***[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title39-section2803&num=0&edition=prelim § 2803. Performance Plans]<br />
***[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title39-section2804&num=0&edition=prelim § 2804. Program performance reports]<br />
***[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title39-section2805&num=0&edition=prelim § 2805. Inherently governmental functions]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Government_in_the_Sunshine_Act&diff=1652Government in the Sunshine Act2023-08-12T21:17:31Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim 552b] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg1241.pdf Pub. L. No. 94-409], 90 Stat. 1241, Sept. 13, 1976; amended by [https://www.govinfo.gov/content/pkg/PLAW-104publ66/pdf/PLAW-104publ66.pdf Pub. L. No. 104-66], Title III § 3002, 109 Stat. 707, 734, Dec. 21, 1995. <br />
<br />
==Overview==<br />
Section 3 of the Government in the Sunshine Act (Sunshine Act) added a new [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim § 552b], titled “Open Meetings,” to Title 5 of the U.S. Code. Section 3 requires, in general, that meetings of each federal agency headed by a collegial body, a majority of whose members are appointed by the President with the advice and consent of the Senate, shall be open to public observation. Approximately 50 federal agencies are subject to the Government in the Sunshine Act, including the major independent regulatory commissions, such as the Securities and Exchange Commission, Federal Trade Commission, Federal Communications Commission, Consumer Product Safety Commission, and National Labor Relations Board. The right of observation provided by the Sunshine Act does not include any right to participate in the agency’s deliberations. The Sunshine Act provides certain exemptions from the open meeting requirement and prescribes in detail the procedures that the agency must follow to invoke an exemption and close a meeting.<br />
<br />
===Summary=== <br />
The principal provisions of the Sunshine Act may be summarized briefly. Subsection (a) defines the words “agency,” “meeting,” and “member.” Subsection (b) declares a presumption in favor of open meetings. Subsection (c) allows an agency to close or withhold information about a meeting or portion of a meeting if the agency determines that the meeting or information, if released, would likely disclose information protected from disclosure under one of several exemptions. These exemptions are permissive, not mandatory, and subsection (c) also provides that agency meetings otherwise exempt shall be open “where the agency finds that the public interest [so] requires.”<br />
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===Exemptions=== <br />
The exemptions in [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim subsection (c)] generally parallel those in the [[Freedom of Information Act]] (FOIA) (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552]). There is, however, an important exception. There is no exemption in the Sunshine Act that parallels FOIA’s fifth exemption for interagency and intra-agency memoranda and letters. This is because, while FOIA recognizes the legitimate government interest in protecting the agency deliberative process as such, the Sunshine Act aims at maximum exposure of that process, at least at the collegial level. ''See'' Richard K. Berg, Stephen Klitzman & Gary Edles, ''An Interpretive Guide to the Government in the Sunshine Act'' 67 (ABA, 2d ed. 2005). This ''Guide'' is the authoritative source on the Sunshine Act.<br />
<br />
On the other hand, the Sunshine Act does have two important exemptions that lack counterparts in FOIA and that protect the deliberative process in certain defined circumstances. Exemption 9 permits those agencies that regulate currencies, securities, commodities, or financial institutions to close meetings to protect information that, if disclosed, would lead to significant speculation or significantly endanger the stability of financial institutions. More broadly, it permits any agency to close a meeting to prevent disclosure of information that would be likely to frustrate the implementation of a proposed agency action. Exemption 10 permits closure of meetings that concern agency participation in pending or anticipated litigation or the disposition by the agency of particular cases involving formal (but not “informal”) adjudication.<br />
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===Procedures for Closing Meetings=== <br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim Subsections (d), (e), and (f)] prescribe the procedures agencies must follow in closing meetings, announcing and changing meetings, and withholding or releasing substantive information regarding such meetings. Under subsection (d)(1), agencies may decide to close meetings or withhold information about meetings only by recorded majority vote of the entire membership of the agency. Subsection (d)(2) allows a “person whose interests may be directly affected by a portion of a meeting” to request closure based on exemptions (5), (6), or (7). The agency must vote on the request only “upon request of any one of its members.” Subsection (d)(3) requires that, within one day of any vote to close or to withhold information about a meeting taken under subsections (d)(1) or (d)(2), the agency must “make publicly available” a written copy of the vote of each member. If the vote is to close or to withhold information, the agency must also make available “a full written explanation” of the closing and a list of all expected attendees and their affiliations. Subsection (d)(4) allows an agency, a majority of whose meetings may be closed under exemptions (4), (8), (9)(A), or (10), to close its meetings by expedited procedures and to dispense with some of the procedural requirements of subsections (d)(1), (d)(3), and (e).<br />
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===Publicizing Meetings=== <br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim Subsection (e)(1)] requires that the agency publicly announce, at least one week prior to the meeting, its time, place, and subject matter; whether it is to be open or closed; and the name and telephone number of an agency contact person to provide additional information. The subsection also permits the agency to provide less than seven days’ notice of a meeting, provided a majority of the membership determines by recorded vote “that agency business requires” less notice, and the agency makes the requisite public announcement “at the earliest practicable time” and, in the case of a change in subject matter or open or closed status, a majority recorded vote is cast. Subsections (e)(1) and (e)(2) require that information about the time, place, and subject matter of meetings, as well as changes in the time or place of meetings, must be submitted for publication in the ''Federal Register''. Furthermore, agencies are urged to use other means to ensure that the public is fully informed of public announcements, including posting notices on agency websites or distributing them to a listserv or mailing list.<br />
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===Recordkeeping===<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim Subsection (f)(1)] requires that, for every meeting closed under one or more of the exemptions of subsection (c), the general counsel or chief legal officer of the agency must certify that the meeting may properly be closed. The agency must retain a copy of the certification and a statement from the presiding officer of the meeting stating the time and place of the meeting and listing the persons actually present. The agency must also maintain a complete verbatim transcript or electronic recording of all closed meetings, except that it may instead maintain detailed minutes of any meeting closed under exemptions (8), (9)(A), or (10). Subsection (f)(2) requires the agency to make “promptly available” for public inspection and copying a copy of the transcript, recording, or minutes, except for information exempted and withheld pursuant to subsection (c). The agency is also required under subsection (f)(2) to maintain for at least two years a complete verbatim copy of the transcript, recording, or minutes. Subsection (g) provides for the issuance of agency rules to implement the Sunshine Act. ACUS was originally given the responsibility for consulting with agencies prior to their issuance of regulations to implement the Sunshine Act.<br />
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===Judicial Review===<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim Subsection (h)] provides for judicial review of agency decisions to close meetings. Such decisions may be challenged either in a separate proceeding in district court (subsection (h)(l)) or as part of a proceeding for review of the agency action taken at the meeting (subsection (h)(2)). In proceedings under subsection (h)(1), courts are prohibited from reversing the agency action simply because it was taken at a meeting that was improperly closed. In proceedings under subsection (h)(2), there is no such prohibition, but the legislative history strongly suggests that courts should not reverse agency action merely because it violated the Sunshine Act, and in fact no court has ever reversed an agency action for such a violation. Thus, whether the proceeding is under subsection (h)(1) or subsection (h)(2), the relief available is likely to be limited to allowing access to the transcript of the meeting and providing injunctive relief against future violations. In addition, under subsection (i) a successful plaintiff may be entitled to an award of attorney fees.<br />
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===Reporting=== <br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim Subsection (j)] details the reporting requirements to Congress. Each agency under this subsection must report annually to Congress <br />
<br />
#the changes in policy and procedure that the agency has implemented the year prior;<br />
#the number of meetings held, the exemptions applied to closed meetings, and the days of public notice given concerning those closed meetings;<br />
#a description of litigation or complaints received concerning the implementation of section 552(b); and<br />
#an explanation of any changes in law that have affected the responsibilities of the agency under this section.<br />
<br />
==Legislative History==<br />
===Senate===<br />
The legislation that was to become the Government in the Sunshine Act was first introduced in the 92d Congress on August 4, 1972, by Senator Lawton Chiles of Florida as S. 3881. No action was taken on the bill, and Senator Chiles reintroduced the bill in the 93d Congress on January 9, 1973, as S. 260.<br />
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The bill was referred to the Subcommittee on Reorganization, Research and International Organizations of the Senate Committee on Government Operations, where it underwent several revisions. In 1974, the subcommittee held three days of hearings on Committee Print No. 3 (''Hearings on S.260'', Before the Subcomm. on Reorgs., Research and Int’l Orgs. of the S. Comm. on Gov’t Operations, 93d Cong. (1974)).<br />
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Subsequent to the October 1974 hearing, the Subcommittee prepared Committee Print No. 4 of S. 260, which was introduced by Senator Chiles on January 15, 1975, in the 94th Congress as S. 5.<br />
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On July 31, 1975, without further hearings, the Committee on Government Operations reported S. 5 with amendments. S. Rep. No. 94-354 (1975). As reported, the bill consisted of two titles, title I, meetings of congressional committees, and title II, agency meetings and ex parte communications.<br />
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Title I was referred to the Senate Committee on Rules and Administration, which on September 18, 1975 reported out S. 5 and recommended that title I be deleted from the bill. S. Rep. No. 94-381 (1975).<br />
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On November 5, 1975, title I was deleted on the floor of the Senate. On November 6, 1975, S. 5, as amended, was considered and passed without significant further amendment by a vote of 94-0.<br />
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===House=== <br />
A bill identical to title II of S. 5, as reported by the Senate Committee on Government Operations, was introduced in the House of Representatives by Representative Dante Fascell on September 26, 1975, as H.R. 9868. On October 22, 1975, Representative Bella Abzug introduced H.R. 10315, an amended version of title II of S. 5. The House versions were referred sequentially to the committees on Government Operations and the Judiciary. On November 6 and 12, 1975, the Subcommittee on Government Operations Committee held hearings on H.R. 10315 and H.R. 9868.<br />
<br />
On February 3, 1976, a clean bill was introduced in the House by Representatives Abzug, Fascell, and others as H.R. 11656, and it was reported out by the House Government Operations Committee on March 8, 1976. H.R. Rep. No. 94-880, pt. I (1976). On March 24 and 25, 1976, the Subcommittee on Administrative Law and Governmental Relations of the House Judiciary Committee held hearings on H.R. 11656, and on April 8, 1976, the House Judiciary Committee reported H.R. 11656 with amendments. H.R. Rep. No. 94-880, pt. II (1976). On July 28, 1976, the House considered and passed H.R. 11656, with floor amendments, and then took up S. 5 and amended it to substitute the text of the House bill. S. 5 was then passed by a vote of 390-5 and sent to a Senate-House Conference.<br />
<br />
===Conference Committee and Enactment=== <br />
On August 26 and 27, 1976, the report of the conference committee was filed, respectively, in the House and Senate. H.R. Rep. No. 94-1441 (1976); S. Rep. No. 94-1178 (1976). On August 31, 1976, the report was adopted by voice vote in the Senate and by a vote of 384-0 in the House. On September 13, 1976, President Ford signed the bill into law, to go into effect March 12, 1977. [https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg1241.pdf Pub. L. No. 94-409].<br />
<br />
On May 11, 1995, the Federal Reports Elimination and Sunset Act of 1995 ([https://www.govinfo.gov/content/pkg/PLAW-104publ66/pdf/PLAW-104publ66.pdf Pub. L. No. 104-66]) was introduced in the Senate by Senator John McCain (R-AZ). It provided for a modification or elimination of certain federal reporting requirements of specified federal departments and agencies. It also terminated certain periodic reporting requirements. It was signed into law on December 21, 1995, and amended subsection (j) of the Sunshine Act.<br />
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==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Government in the Sunshine Act—S.5 (Public Law 94-409—Source Book: Legislative History, Texts and Other Documents),'' 94th Cong. (1976), published jointly by the S. and H. Comm. on Gov’t Operations.<br />
*''Hearings on S.260'', Before the Subcomm. on Reorgs., Research and Int'l Orgs. of the S. Comm. on Gov't Operations, 93d Cong. (1974).<br />
*''Hearing on Government in the Sunshine Act Implementation'', Before the Subcomm. on Admin. Law and Gov’tal Relations of the H. Comm. on the Judiciary, 95th Cong. (1977).<br />
*''Hearings on Oversight of the Government in the Sunshine Act, Pub. L. No. 94-409'', Before the Subcomm. on Fed. Spending Practices and Open Gov’t of the S. Comm. on Gov’tal Affairs, 95th Cong. (1978).<br />
*''Hearing on Nuclear Regulatory Commission Sunshine Act Regulations'', Before the Subcomm. on Energy Conservation and Power of the H. Comm. on Energy and Commerce, 99th Cong. (1985).<br />
*''Hearings on Oversight of the Government in the Sunshine Act'', Before the Subcomm. on Fed. Spending, Budget, and Accounting, 100th Cong. (1988).<br />
*Government in the Sunshine Act: History and Recent Issues, S. Rep. No. 101-54 (1989).<br />
*''Hearing on Federal Information Policy Oversight'', Before the Subcomm. on Gov’t Management, Information, and Technology of the H. Comm. on Gov’t Reform and Oversight, 104th Cong. (1996).<br />
</div><br />
<br />
===ACUS Recommendations & Resources===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*84-3 [https://www.acus.gov/sites/default/files/documents/84-3.pdf Improvements in the Administration of the Government in the Sunshine Act]<br />
<br />
*2014-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202014-2%20%28Sunshine%20Act%29.pdf Government in the Sunshine Act]<br />
<br />
*2021-6 [https://www.acus.gov/sites/default/files/documents/2021-6_Public_Access_to_Agency_Adjudicative_Proceedings.pdf Public Access to Agency Adjudicative Proceedings]<br />
*IIB-017 [https://www.acus.gov/sites/default/files/documents/17 Government in the Sunshine Act Basics.pdf Government in the Sunshine Act Basics] (2021)<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*David A. Barrett, ''Facilitating Government Decision Making: Distinguishing Between Meetings and Nonmeetings Under the Federal Sunshine Act'', 66 Tex. L. Rev. 1195 (1988).<br />
*Jennifer A. Bensch, ''Government in the Sunshine Act: Seventeen Years Later: Has Government Let the Sun Shine In?'', 61 Geo. Wash. L. Rev. 1475 (1992).<br />
*Richard K. Berg, Stephen Klitzman & Gary Edles, ''An Interpretive Guide to the Government in the Sunshine Act'' (ABA, 2d ed. 2006).<br />
*Kathy Bradley, Note, [https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1129&context=fclj Do You Feel the Sunshine? Government in the Sunshine Act: Its Objectives, Goals, and Effect on the FCC and You], 49 Fed. Comm. L. J. 473 (1997).<br />
*Reeve T. Bull, [https://www.acus.gov/sites/default/files/documents/Government%20in%20the%20Sunshine%20Act%20Draft%20Report%20REVISED%205-7-14.pdf The Government in the Sunshine Act in the 21st Century] (Mar. 10, 2014) (report to ACUS).<br />
*Nathaniel E. Castellano, ''Where the Sunshine Meets the Shade: Using FOIA Exemption 4 to Protect Confidential Compliance Information After the 2016 FOIA Improvement Act'', 46 Pub. Cont. L.J. 589 (2017).<br />
*James H. Cawley, ''Sunshine Law Overexposure and the Demise of Independent Agency Collegiality'', 1 Widener J. Pub. L. 43 (1992).<br />
*Justin Hurwitz, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1224&context=mttlr Blacklining Editorial Privilege], 23 Mich. Telecomm. & Tech. L. Rev. 149 (2016).<br />
*Michael A. Lawrence, [https://scholarship.law.edu/cgi/viewcontent.cgi?article=1597&context=lawreview Finding Shade From the Government in the Sunshine Act: A Proposal to Permit Private Informal Background Discussions at the United States International Trade Commission], 45 Cath. U. L. Rev. 1 (1995).<br />
*David B. Marblestone, ''The Relationship Between the Government in the Sunshine Act and the Federal Advisory Committee Act'', 36 Fed. B. J. 65 (1977).<br />
*Randolph May, ''Reforming the Sunshine Act,'' 49 Admin. L. Rev. 415 (1997).<br />
*James T. O’Reilly & Gracia M. Berg, ''Stealth Caused by Sunshine: How Sunshine Act Interpretation Results in Less Information for the Public About the Decision-Making Process of the International Trade Commission'', 36 Harv. Int’l L.J. 425 (1995).<br />
*David E. Pozen, ''[https://www.yalelawjournal.org/pdf/Pozen_5xbpkxy6.pdf Transparency’s Ideological Drift]'', 128 Yale L.J. 100 (2018).<br />
*''Report and Recommendation by the Special Committee to Review the Government in the Sunshine Act'', 49 Admin. L. Rev. 421 (1997). <br />
*Ganesh Sitaraman & Ariel Dobkin, ''The Choice Between Single Director Agencies and Multimember Commissions'', 71 Admin. L. Rev. 719 (2019).<br />
*Robert W. Sloat, ''Government in the Sunshine Act: A Danger of Overexposure'', 14 Harv. J. on Legis. 620 (1977).<br />
*Stuart M. Statler, ''Let the Sunshine In?'', 67 Am. Bar Ass'n. J. 573 (1981).<br />
*Larry Thomas, ''The Courts and the Implementation of the Government in the Sunshine Act'', 37 Admin. L. Rev. 259 (1985).<br />
*Thomas H. Tucker, Commentary, ''“Sunshine”—The Dubious New God'', 32 Admin. L. Rev. 537 (1980).<br />
*David Welborn, William Lyons & Larry Thomas, [https://www.acus.gov/sites/default/files/documents/1984-03%20Implementation%20and%20Effects%20of%20the%20Federal%20Government%20in%20the%20Sunshine%20Act.pdf Implementation and Effects of the Federal Government in the Sunshine Act] (June 1984) (report to ACUS).<br />
*David Welborn, William Lyons, & Larry Thomas, ''The Federal Government in the Sunshine Act and Agency Decision Making'', 20 Admin. & Soc'y 465 (1989).<br />
</div><br />
<br />
===Significant Case Law===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://cdn.loc.gov/service/ll/usrep/usrep466/usrep466463/usrep466463.pdf FCC v. ITT World Commc’ns], 466 U.S. 463 (1984), held that the definition of “meeting” under the Sunshine Act did not include gatherings of agency members to receive information and that international consultative sessions were not covered by the Sunshine Act.<br />
*[https://casetext.com/case/mcchesney-v-fed-election-commn McChesney v. Fed. Election Comm’n], 900 F.3d 578 (8th Cir. 2018), held that a multimember agency head’s use of notational voting procedure in a routine matter did not violate the Sunshine Act.<br />
*[https://www.cadc.uscourts.gov/internet/opinions.nsf/ECF7A08A364479B185256F180065C519/$file/99-1383a.txt Nat. Res. Def. Council, Inc. v. NRC], 216 F.3d 1180 (D.C. Cir. 2000), held that the NRC’s definition of “meeting” adopted by regulation for purposes of the Government in the Sunshine Act, as deliberations of a quorum of commissioners where such deliberations “are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency,” being that of the Supreme Court in the ITT case, was not invalid as contrary to the Sunshine Act or as fatally undermining it. The court further opined that the Supreme Court’s definition was authoritative and not dictum, even though there was an independent basis for its decision.<br />
*''Nat. Res. Def. Council, Inc. v. Def. Nuclear Facilities Safety Bd.'', 969 F.2d 1248 (D.C. Cir. 1992), upheld agency regulation under the Sunshine Act that interpreted agency statute as permitting closure of meetings under exemption 3.<br />
*''Energy Research Found. v. Def. Nuclear Facilities Safety Bd.'', 917 F.2d 581 (D.C. Cir. 1990), held that the Board in question is an “agency” for purposes of the Government in the Sunshine Act (and the FOIA).<br />
*''Clark-Cowlitz Joint Operating Agency v. FERC'', 798 F.2d 499 (D.C. Cir. 1986), held that where a meeting is closed pursuant to exemption 10 of the Sunshine Act, the need for confidentiality may survive the termination of the proceedings that were the subject of agency discussion and that the agency’s determination that the public interest does not require the opening of a meeting eligible for closure is not subject to judicial review.<br />
*''Rushforth v. Council of Econ. Advisers'', 762 F.2d 1038, 1039 n.3, 1043 (D.C. Cir. 1985), held that although plaintiff has standing to allege Sunshine Act violation, Council of Economic Advisers is not an “agency” for purposes of the Sunshine Act, since it does not qualify as an agency under FOIA.<br />
*''Common Cause v. NRC'', 674 F.2d 921 (D.C. Cir. 1982), held that exemption 9(b) does not cover meetings to consider the agency’s budget proposals.<br />
*''Pacific Legal Found. v. Council on Envtl. Quality'', 636 F.2d 1259 (D.C. Cir. 1980), held that the CEQ is covered by the Sunshine Act.<br />
*''Commc’ns Sys., Inc. v. FCC'', 595 F.2d 797 (D.C. Cir. 1978), held that agencies are not precluded by the Sunshine Act from disposing of matters through notation voting rather than at meetings.<br />
*''Public Citizen v. Nat’l Econ. Comm’n'', 703 F. Supp. 113 (D.D.C. 1989), held that exemption 9(b) was not available as the basis for closing a meeting to facilitate candid discussion (the case involves comparable exemptions under the [[Federal Advisory Committee Act]], 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section10&num=0&edition=prelim app. II, § 10(d)] (1988)).<br />
</div><br />
<br />
===Other Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Resolution approved by the American Bar Association House of Delegates, Report No. 100 (Feb. 16–17, 1987) (proposing guidelines to federal agencies and courts with respect to the interpretation of the word “meeting”).<br />
*Eunice A. Eichelberger, ''Availability of Judicial Review of Agency Compliance with Sunshine Act (5 U.S.C.A. § 552b(g) and (h))'', 84 A.L.R. Fed. 251.<br />
*Eunice A. Eichelberger, ''Construction and Application of Exemptions Under 5 U.S.C.A. § 552b(c) to Open Meeting Requirements of Sunshine Act'', 82 A.L.R. Fed 465.<br />
*Kevin W. Brown, ''What Is an “Agency” Within the Meaning of Federal Sunshine Law (5 USC 552b)?'', 68 A.L.R. Fed. 842.<br />
</div><br />
<br />
===Agency Regulations===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*African Development Foundation ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt22.2.1500&rgn=div5 22 C.F.R. Part 1500])<br />
*Broadcasting Board of Governors ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt22.2.507&rgn=div5 22 C.F.R. Part 507])<br />
*Chemical Safety and Hazard Investigation Safety Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt40.37.1603&rgn=div5 40 C.F.R. Part 1603])<br />
*Commission of Fine Arts ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt45.4.2102&rgn=div5 45 C.F.R. Part 2102])<br />
*Commodity Futures Trading Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt17.2.147&rgn=div5 17 C.F.R. Part 147])<br />
*Consumer Product Safety Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt16.2.1013&rgn=div5 16 C.F.R. Part 1013])<br />
*Corporation for National and Community Service ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt45.4.2505&rgn=div5 45 C.F.R. Part 2505])<br />
*Council on Environmental Quality ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt40.37.1517&rgn=div5 40 C.F.R. Part 1517])<br />
*Defense Nuclear Facilities Safety Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt10.4.1704&rgn=div5 10 C.F.R. Part 1704])<br />
*Election Assistance Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt11.1.9407&rgn=div5 11 C.F.R. Part 9407])<br />
*Equal Employment Opportunity Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt29.4.1612&rgn=div5 29 C.F.R. Part 1612])<br />
*Export-Import Bank ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt12.5.407&rgn=div5 12 C.F.R. Part 407])<br />
*Farm Credit Administration ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt12.7.604&rgn=div5 12 C.F.R. Part 604])<br />
*Federal Communications Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=sp47.1.0.f&rgn=div6 47 C.F.R. Part 0, Subpt. F])<br />
*Federal Deposit Insurance Corporation ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt12.5.311&rgn=div5 12 C.F.R. Part 311])<br />
*Federal Election Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=74de6e0b14360a7709a641cd60c5a7cd&mc=true&node=pt11.1.2&rgn=div5 11 C.F.R. Part 2])<br />
*Federal Energy Regulatory Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=sp18.1.375.b&rgn=div6 18 C.F.R. Part 375, Subpt. B])<br />
*Federal Labor Relations Authority ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=pt5.3.2413&rgn=div5 5 C.F.R. Part 2413])<br />
*Federal Maritime Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=sp46.9.503.i&rgn=div6 46 C.F.R. Part 503, Subpt. I])<br />
*Federal Mine Safety and Health Review Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=pt29.9.2701&rgn=div5 29 C.F.R. Part 2701])<br />
*Federal Open Market Committee ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=se12.4.281_11&rgn=div8 12 C.F.R. § 281.1])<br />
*Federal Reserve System ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&tpl=/ecfrbrowse/Title12/12cfr261b_main_02.tpl 12 C.F.R. § 261b])<br />
*Federal Retirement Thrift Investment Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=pt5.3.1632&rgn=div5 5 C.F.R. Part 1632])<br />
*Federal Trade Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=pt16.1.4&rgn=div5 16 C.F.R. §§ 4.9-4.11, 4.14-4.15])<br />
*Foreign Claims Settlement Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=sp45.3.503.b&rgn=div6 45 C.F.R. Part 503, Subpt. B])<br />
*Foreign Service Labor Relations Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=pt22.2.1413&rgn=div5 22 C.F.R. Part 1413])<br />
*Harry S. Truman Scholarship Foundation ([https://www.ecfr.gov/cgi-bin/text-idx?SID=9ed574826249463e0210a2d72b5ed86c&mc=true&node=pt45.4.1802&rgn=div5 45 C.F.R. Part 1802])<br />
*Inter-American Foundation ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt22.2.1004&rgn=div5 22 C.F.R. Part 1004])<br />
*Legal Services Corporation ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt45.4.1622&rgn=div5 45 C.F.R. Part 1622])<br />
*Marine Mammal Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt50.11.560&rgn=div5 50 C.F.R. Part 560])<br />
*Merit Systems Protection Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt5.3.1206&rgn=div5 5 C.F.R. Part 1206])<br />
*Mississippi River Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=se33.3.209_150&rgn=div8 33 C.F.R. § 209.50])<br />
*National Commission on Libraries and Information Science ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt45.4.1703&rgn=div5 45 C.F.R. Part 1703])<br />
*National Credit Union Administration ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=sp12.7.791.c&rgn=div6 12 C.F.R. Part 791, Subpt. C])<br />
*National Labor Relations Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=sp29.2.102.s&rgn=div6 29 C.F.R. Part 102, Subpt. S])<br />
*National Mediation Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt29.4.1209&rgn=div5 29 C.F.R. Part 1209])<br />
*National Science Foundation ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt45.3.614&rgn=div5 45 C.F.R. Part 614])<br />
*National Transportation Safety Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt49.7.804&rgn=div5 49 C.F.R. Part 804])<br />
*Neighborhood Reinvestment Corporation ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=se24.5.4100_12&rgn=div8 24 C.F.R. § 4100.2])<br />
*Nuclear Regulatory Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=sp10.1.9.c&rgn=div6 10 C.F.R. Part 9, Subpt. C])<br />
*Occupational Safety and Health Review Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt29.9.2203&rgn=div5 29 C.F.R. Part 2203])<br />
*Postal Regulatory Commission ([https://www.ecfr.gov/current/title-39/chapter-III/subchapter-B/part-3007 39 C.F.R. § Part 3007])<br />
*Postal Service (Board of Governors) ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt39.1.7&rgn=div5 39 C.F.R. Part 7])<br />
*Railroad Retirement Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=se20.1.200_16&rgn=div8 20 C.F.R. § 200.6])<br />
*Securities and Exchange Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=sp17.3.200.i&rgn=div6 17 C.F.R. Part 200, Subpt. I])<br />
*Surface Transportation Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=pt49.8.1012&rgn=div5 49 C.F.R. Part 1012])<br />
*Tennessee Valley Authority ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=sp18.2.1301.c&rgn=div6 18 C.F.R. Part 1301, Subpt. C])<br />
*U.S. Commission on Civil Rights ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=sp45.3.702.b&rgn=div6 45 C.F.R. Part 702, Subpt. B])<br />
*U.S. International Trade Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=sp19.3.201.e&rgn=div6 19 C.F.R. Part 201, Subpt. E])<br />
*U.S. Parole Commission (Department of Justice) ([https://www.ecfr.gov/cgi-bin/text-idx?SID=568bd50fca7c9761445db6431c8ac691&mc=true&node=sp28.1.16.f&rgn=div6 28 C.F.R. Part 16, Subpt. F])<br />
</div><br />
<br />
==Statutory Provisions==<br />
Government in the Sunshine Act <br />
<br />
Title 5 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim § 552b. Open meetings]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Freedom_of_Information_Act&diff=1651Freedom of Information Act2023-08-12T21:12:55Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552] (2012); enacted by [https://www.govinfo.gov/content/pkg/STATUTE-80/pdf/STATUTE-80-Pg378.pdf Pub. L. No. 89-554], § 1, 80 Stat. 383, Sept. 6, 1966; amended by [https://www.govinfo.gov/content/pkg/STATUTE-81/pdf/STATUTE-81-Pg54.pdf Pub. L. No. 90-23], § 1, 81 Stat. 54, June 5, 1967; by [https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1561.pdf Pub. L. No. 93-502], §§ 1-3, 88 Stat. 1561–64, Nov. 21, 1974; by [https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg1241.pdf Pub. L. No. 94-409], § 5(b), 90 Stat. 1247, Sept. 13, 1976; by [https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg1111.pdf Pub. L. No. 95-454], Title IX, § 906(a)(10), 92 Stat. 1225, Oct. 13, 1978; by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg3335.pdf Pub. L. No. 98-620], Title IV, § 402(2) 98 Stat. 3357, Nov. 8, 1984; by [https://www.govinfo.gov/content/pkg/STATUTE-100/pdf/STATUTE-100-Pg3207.pdf Pub. L. No. 99-570], Title I, §§ 1802, 1803, 100 Stat. 3207-48, 3207-49, Oct. 27, 1986; by [https://www.govinfo.gov/content/pkg/PLAW-104publ231/pdf/PLAW-104publ231.pdf Pub. L. No. 104-231], §§ 3–11, 110 Stat. 3049, Oct. 2, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-107publ306/pdf/PLAW-107publ306.pdf Pub. L. No. 107-306], Title III, § 312, 116 Stat. 2390, Nov. 27, 2002; by [https://www.govinfo.gov/content/pkg/PLAW-110publ175/pdf/PLAW-110publ175.pdf Pub. L. No. 110-175], §§ 3, 4(a), 5, 6(a)(1), (b)(1), 7(a), 8–10(a), 12, 121 Stat. 2525, 2526, 2527, 2530, Dec. 31, 2007; by [https://www.govinfo.gov/content/pkg/PLAW-111publ83/pdf/PLAW-111publ83.pdf Pub. L. No. 111-83], Title V, § 564(b), 123 Stat. 2184, Oct. 28, 2009; by [https://www.govinfo.gov/content/pkg/PLAW-114publ185/pdf/PLAW-114publ185.pdf Pub. L. No. 114-185], 130 Stat. 538, June 30, 2016.<br />
<br />
'''Lead Agency:'''<br />
<br />
Department of Justice, [https://www.justice.gov/oip Office of Information and Privacy]; [https://www.justice.gov/oip/foia-resources Office of Information and Privacy FOIA Resources] <br />
<br />
==Overview==<br />
The Freedom of Information Act (FOIA) requires all agencies (1) to publish certain items of information in the ''Federal Register'', (2) to make available for public inspection in an electronic format certain other items of information, and (3) to make certain agency records available to any members of the public upon request for such records. As stated in the [https://www.imls.gov/sites/default/files/presidentmemorandum620.pdf Memorandum for the Heads of Executive Departments and Agencies], signed by President Barack Obama on January 21, 2009, the purposes of the FOIA are to promote “accountability through transparency.” The Memorandum called on agencies to “adopt a presumption in favor of disclosure.” <br />
<br />
===Federal Register Publication=== <br />
Each agency is required ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim 5 U.S.C. § 552(a)(1)]) to publish in the ''Federal Register'':<br />
<br />
*descriptions of its central and field organization and the established places at which, the employees (and, in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;<br />
*statements of the general course and method by which its functions are determined and assigned, including the nature and requirements of all formal and informal procedures available;<br />
*rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;<br />
*substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency;<br />
*each amendment, revision, or repeal of the foregoing.<br />
<br />
If any listed item is not so published, persons without actual and timely notice of the substance of the items may not be required to conform their behavior to, or be adversely affected by, the item. These publication requirements apparently cannot be judicially enforced except with respect to those who are adversely affected by the agency rule and do not have actual and timely notice of it. ''See'' ''United States v. Mowat'', 582 F.2d 1194, 1201 n.5 (9th Cir. 1978).<br />
<br />
With the approval of the Director of the Federal Register, matters reasonably available to the class of persons affected may be deemed published in the ''Federal Register'' if agencies incorporate them by reference.<br />
<br />
The 2016 amendments required publication in the ''Federal Register'' of procedures for engaging in dispute resolution through the agency’s FOIA Public Liaison and the Office of Information and Government Services.<br />
<br />
===Opinions, Orders, Interpretations, Manuals, Previously Requested Records===<br />
Adjudicative orders and opinions, statements of policy and interpretations not published in the ''Federal Register'', and staff manuals and instructions to staff must either be made available for inspection and copying or be promptly published and made available for sale ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim 5 U.S.C. § 552(a)(2)]). Agency records of this type created on or after November 1, 1996, must be made “available, including by computer telecommunications or . . . by other electronic means” (§ 552(a)(2)). This latter requirement is just one of many changes made to the FOIA in the Electronic Freedom of Information Act Amendments of 1996 ([https://www.govinfo.gov/content/pkg/PLAW-104publ231/pdf/PLAW-104publ231.pdf Pub. L. No. 104-231]) (hereafter 1996 FOIA Amendments) to take account of new information technology.<br />
<br />
The 1996 FOIA Amendments also require that the public have access to copies of agency records previously processed for disclosure under the FOIA that, “because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records,” as well as a general index of those records (§ 552(a)(2)(D)-(E)). An agency may, with a full written explanation, delete identifying items that would constitute a clear invasion of personal privacy.<br />
<br />
===Requests for Other Records===<br />
All other agency records must promptly be made available upon a request that reasonably describes the records and is made in accordance with published procedures (§ 552(a)(3)). Agencies must honor the requester’s choice of format and make reasonable efforts to produce records in that form if readily reproducible in that form (§ 552(a)(3)(B)). To constitute an “agency record,” a document must be either created or obtained by an agency and under agency control at the time of the request. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep492/usrep492136/usrep492136.pdf DOJ v. Tax Analysts], 492 U.S. 136, 144–45 (1989); ''see also'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/89DCC2C927CD3E7F85257FB2004E63BD/$file/15-5183-1613150.pdf ACLU v. CIA], 823 F.3d 655, 662 (D.C. Cir. 2016) (“[W]e look to four factors to determine whether an agency has sufficient control over a document to make it an ‘agency record’: [1] the intent of the document’s creator to retain or relinquish control over the records; [2] the ability of the agency to use and dispose of the record as it sees fit; [3] the extent to which agency personnel have read or relied upon the document; and [4] the degree to which the document was integrated into the agency’s record system or files.”) (citations omitted).<br />
<br />
A record is “reasonably describe[d]” if the description of the requested agency document is sufficient to enable a professional agency employee familiar with the subject area to locate the record with a reasonable amount of effort. H.R. Rep. No. 876 (1974). Requests must be made in accordance with the agency’s published rules regarding the time, place, filing fees, and required procedures ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim 5 U.S.C. § 552(a)(3)]).<br />
<br />
The agency must use reasonable efforts to search for the requested records using electronic methods, except in cases where it would significantly interfere with the operation of the agency’s automated information system (5 U.S.C. § 552(a)(3)(C)). “Search” is now defined explicitly to include both manual and electronic methods (§ 552(a)(3)(D)). In litigation, the “burden is on the agency to demonstrate that it made a “good faith effort to conduct a search . . . using methods which can be reasonably expected to produce the information requested.” [https://www.cadc.uscourts.gov/internet/opinions.nsf/55C72C3B0395CCFC85257E93004F74E6/$file/13-5353-1565589.pdf DiBacco v. U.S. Army], 795 F.3d 178, 188 (D.C. Cir. 2015) (citation omitted).<br />
<br />
===Fees and Fee Waivers=== <br />
As amended by the FOIA Reform Act of 1986 ([https://www.govinfo.gov/content/pkg/STATUTE-100/pdf/STATUTE-100-Pg3207.pdf Pub. L. No. 99-570]), FOIA sets forth three levels of fees that may be assessed for FOIA requests, depending on the category of the requester:<br />
<br />
*An agency may charge a requester for document search time, duplication, and review costs if the request is made for a “commercial use” ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552(a)(4)(A)(ii)(I)]). A search includes both manual and electronic means (§ 552(a)(3)(D)).<br />
*An agency may only charge a requester for document duplication (a “reasonable standard charge”) if the request is not for a commercial use and is made by an educational or noncommercial scientific institution whose purpose is scholarly or scientific research, or by a representative of the news media. (§ 552(a)(4)(A)(ii)(II).) The OPEN Government Act of 2007 defined “a representative of the news media” to mean any person who gathers information of potential current interest to a segment of the public, uses editorial skills to turn the raw material into a distinct work, and distributes that work to an audience. The definition makes clear that this covers not only traditional broadcast and print media but also evolving forms of electronic media. It also makes clear that freelance journalists qualify if they can show a “solid basis for expecting publication” by a news entity.<br />
*An agency may charge requesters not covered by categories (1) and (2) above for the costs of document search and duplication (§ 552(a)(4)(A)(ii)(III)).<br />
<br />
These three categories of fees were further modified by several general limitations that were added to FOIA by the 1986 amendments. These limitations are: (1) no fee may be charged if the costs of collecting and processing the fee are likely to equal or exceed the amount of the fee; (2) a noncommercial requester may not be charged for the first two hours of search time or the first 100 pages of document duplication; (3) no agency may require advance payment of fees unless the requester has previously failed to pay a fee in a timely fashion or the agency has determined that the fee will exceed $250; and (4) review costs may not be charged for review related to appeals or the resolution of issues of law or policy raised by the request (§ 552(a)(4)(A)(iv), (v)).<br />
<br />
The 1986 amendments also directed the Office of Management and Budget (OMB) to develop guidelines, following notice-and-comment procedures, to provide a “uniform schedule of fees for all agencies,” and each federal agency was directed to promulgate regulations conforming to those guidelines (§ 552(a)(4)(A)(i)). ''See'' [https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/foia_fee_schedule_1987.pdf The Freedom of Information Reform Act of 1986; Uniform Freedom of Information Act Fee Schedule and Guidelines], 52 Fed. Reg. 10012 (Mar. 27, 1987).<br />
<br />
Notwithstanding the fee schedules, FOIA provides for waivers of fees in particular cases. As amended by the FOIA Reform Act in 1986, the fee waiver provision states that “[d]ocuments shall be furnished without any charge or at a [reduced] charge . . . if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester” (§ 552(a)(4)(A)(iii)).<br />
<br />
The Department of Justice issued a fee waiver policy statement in April 1987 to reflect the change in the waiver provision made by the FOIA Reform Act ([https://www.justice.gov/oip/blog/foia-update-new-fee-waiver-policy-guidance Memorandum, Stephen J. Markman, Assistant Attorney General, Office of Legal Policy, to Agency Heads], Apr. 2, 1987). The guidance was intended for use by agencies adopting new fee waiver regulations. The memorandum includes a six-factor test for deciding to grant or deny a request for waiver or reduction of FOIA fees (see discussion in the [https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/fees-feewaivers.pdf#p22 Justice Department’s Guide to the FOIA], including discussion of court cases applying the factors).<br />
<br />
Another change made by the OPEN Government Act in 2007 ([https://www.govinfo.gov/content/pkg/PLAW-110publ175/pdf/PLAW-110publ175.pdf Pub. L. No. 110-175]) was to prohibit the imposition of fees for searches (or duplication for the media and educational or scientific institutions) if the agency violated the time limits in the FOIA, at least absent unusual or exceptional circumstances (§ 552(a)(4)(A)(viii)). The 2016 amendments extend the search fee prohibition to cases where a time limit has been properly extended and the agency fails to meet the new extended deadline.<br />
<br />
===Time Limits=== <br />
An agency must inform a FOIA requester within 20 working days of receiving a request as to the agency’s intent to fulfill or deny the request ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552(a)(6)(A)(i)]). If the request is not sent to the appropriate component of the agency to answer the request, the agency is allowed an additional 10 days to respond to the request. In addition, the agency may make one request to the requester for information and toll the time period for 20 days while awaiting the requester’s response. If necessary to clarify issues regarding fee assessment, the agency may also toll the time period during the period awaiting the requester’s response.<br />
<br />
The requester may appeal a denial to the agency head. The agency head must decide appeals within 20 working days (§ 552(a)(6)(A)(ii)). The time limits for both responding to the request and deciding an appeal may be extended for 10 working days in unusual circumstances upon written notice to the requester (§ 552(a)(6)(B)). Section 552(a)(6)(B) specifies the circumstances permitting the extension of the time limits. If an agency anticipates that the request may take more than the extended time period, it must provide the requester an opportunity to either (i) limit the scope of the request or (ii) arrange with the agency a new or alternative time limit or a modified request (§ 552(a)(6)(B)(ii)).<br />
<br />
Agencies may promulgate regulations providing for multitrack processing of requests for records. (§ 552(a)(6)(D)(i).) This allows for processing of requests on a “first-in, first-out” basis within each track, but also permits agencies to bypass agency backlogs by responding to relatively simple requests before requests for complex and/or voluminous records.<br />
<br />
Agencies also must provide for expedited processing of requests for records (§ 552(a)(6)(E)). If a FOIA requester can show “compelling need” (defined in § 552(a)(6)(E)(v)), the agency may expedite the request and process it out of sequence. Compelling need is explicitly defined as either an imminent threat to life or public safety or an urgency to inform the public concerning actual or alleged Federal Government activity (§ 552(a)(6)(E)(v)(I), (II)). Within 10 days after an expedited request, the agency must notify the requester if it will expedite the process, and the requester must be given an opportunity to appeal the agency’s determination (§ 552(a)(6)(E)(ii)(I)).<br />
<br />
===Exemptions===<br />
Nine categories of records (or portions of records) are exempt under § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim 552(b)] from mandatory disclosure under FOIA. However, any reasonably segregable, non-exempt portions of requested records must be released to the requester, even if the material falls under one of the nine categories below. The record must also indicate the amount of information deleted and the exemption claimed (unless that indication is itself protected from disclosure by an exemption) and, if technically feasible, this information should be placed in the record where the deletion is made (§ 552(b), concluding paragraphs). While not considered “exempt” records, the 2002 amendments provided that intelligence agencies are not to make any record available to foreign governments (§ 552(a)(3)(E)). In addition, there are a number of other statutes that specifically exclude records described therein from FOIA. For example, the Critical Infrastructure Information Act exempts critical infrastructure information voluntarily submitted to an agency from FOIA. ''See'' 6 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title6-section673&num=0&edition=prelim § 673(a)(1)(A)]. In addition, in 1984 Congress amended the National Security Act of 1947 to exempt from FOIA’s search and review requirements certain operational files of the Central Intelligence Agency. The CIA Information Act ([https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477]) did not broaden the CIA’s authority to withhold information, but it relieves the CIA of the administrative burden of searching and reviewing files that almost always are classified or otherwise not releasable under FOIA.<br />
<br />
Because FOIA is a disclosure statute only, it does not prohibit agencies from disclosing records merely because they are exempt from mandatory disclosure (although in some cases other statutes may prohibit disclosure). Under President Jimmy Carter, the Justice Department informed heads of agencies that it would not defend an agency in a suit seeking disclosure under FOIA unless the agency found not only that a particular exemption was applicable but also that disclosure would be contrary to the public interest. This memorandum was revoked by the Attorney General appointed by President Ronald Reagan, who informed heads of agencies that the Department would defend any withholding of a record that was subject to a FOIA exemption. This policy was continued by President Bush, but President Clinton’s Attorney General reinstituted the Carter-era policy. President Bush’s Attorney General subsequently rescinded the Clinton-era policy and assured heads of agencies that their withholdings would be defended by the Department unless they lacked a sound basis in the law. President Obama’s Attorney General in turn revoked the Bush policy and returned to the Carter/Clinton policy of defending withholding from disclosure only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.<br />
<br />
The following are the nine exemptions provided in the FOIA.<br />
====Exemption 1====<br />
'''Records that are specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy, and are in fact properly classified pursuant to such executive order.'''<br />
<br />
The applicable executive order is Executive Order 13526, [https://www.govinfo.gov/content/pkg/CFR-2010-title3-vol1/pdf/CFR-2010-title3-vol1-eo13526.pdf Classified National Security Information], which became effective on October 17, 1995, 3 C.F.R. 333 (1996), 60 Fed. Reg. 19825. See [https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/exemption1.pdf Justice Department’s Guide to the FOIA] for discussion of litigation under this exemption, including issues of deference to agency classification, court review, the Executive Order’s provisions, and other issues.<br />
<br />
However, disclosure “may be compelled . . . over an otherwise valid exemption claim” when the records have been “officially acknowledged.” ''Fitzgibbon v. CIA'', 911 F.2d 755, 765 (D.C. Cir. 1990). The D.C. Circuit has articulated a three-part test to determine when a record has been “officially acknowledged”: “(1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure.” [https://www.cadc.uscourts.gov/internet/opinions.nsf/0BB43C9F640B98C685257EFC00544828/$file/13-5286-1583392.pdf Mobley v. CIA], 806 F.3d 568 (D.C. Cir 2015), ''citing'' ''Fitzgibbon'' (internal quotations omitted).<br />
<br />
====Exemption 2====<br />
'''Records that are related solely to the internal personnel rules and practices of an agency.'''<br />
<br />
The case law on this exemption initially was divided, reflecting the manner in which the House and Senate reports addressed Exemption 2 when the FOIA was enacted. ''Compare'' [https://www.justice.gov/sites/default/files/jmd/legacy/2013/11/07/senaterept-813-1965.pdf S. Rep. No. 813] (1965) (exemption relates only to internal personnel rules and practices within an agency) ''with'' [https://www.justice.gov/sites/default/files/jmd/legacy/2013/09/15/houserept-1497-1966.pdf H.R. Rep. No. 1497] (1966) (exemption does not cover all matters of internal management). The Supreme Court, however, in [https://cdn.loc.gov/service/ll/usrep/usrep425/usrep425352/usrep425352.pdf U.S. Department of the Air Force v. Rose], 425 U.S. 352 (1976), accepted the Senate report as authoritative for routine personnel matters.<br />
<br />
The exemption, as interpreted by the courts for a number of years, encompassed two distinct categories of information: (i) that related to internal agency matters of a relatively trivial nature, and (ii) that related to more substantial internal agency matters, the disclosure of which would enable persons to circumvent a legal requirement. A request for the former type of information was sometimes referred to as a “low 2” matter, while a request for the latter type of information was referred to as “high 2.” In ''Milner v. U.S. Dep’t of the Navy'', 562 U.S. 562 (2011), however, the Supreme Court overturned this body of law, holding that “Low 2 is all of 2 (and that High 2 is not 2 at all).” ''Id.'' at 571. Consequently, this exemption only applies to internal agency matters relating to employment.<br />
<br />
====Exemption 3====<br />
'''Records specifically exempted from disclosure by statute (other than section 552b of this title), if that statute—(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.'''<br />
<br />
Exemption 3 is triggered only by federal statutes, and not, for instance, by executive orders or regulations (''Washington Post Co. v. HHS'', 690 F.2d 252, 273 (D.C. Cir. 1982)) or by rules of the Supreme Court (''Founding Church of Scientology v. Bell'', 603 F.2d 945, 952 (D.C. Cir. 1979)). In ''Reporters Committee for Freedom of the Press v. DOJ'', 816 F.2d 730, 735 (D.C. Cir. 1987), ''rev’d on other grounds'', [https://cdn.loc.gov/service/ll/usrep/usrep489/usrep489749/usrep489749.pdf 489 U.S. 749] (1989), the Court of Appeals for the D.C. Circuit held that congressional intent to exempt matters from disclosure must be found “in the actual words of the statute . . . or at least in the legislative history of FOIA” and not in the legislative history of a claimed withholding statute. The [[Privacy Act]] does not qualify as an Exemption 3 statute (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552a&num=0&edition=prelim § 552a(t)(2)], as added by [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477], § 2(c)). The Trade Secrets Act, 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1905&num=0&edition=prelim § 1905], also does not qualify as an Exemption 3 statute, ''see'' ''CNA Financial Corp. v. Donovan'', 830 F.2d 1132, 1137–43 (D.C. Cir. 1987), ''cert. denied'', 485 U.S. 977 (1988), but information covered by the Trade Secrets Act is protected from disclosure under Exemption 4, ''see id.'' <br />
<br />
Exemption 3 statutes enacted while a FOIA request is pending or being litigated may apply retroactively to exempt the requested records from disclosure. ''See'' [http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2005/D09-12/C:01-2167:J:_:aut:T:op:N:0:S:0 City of Chicago v. U.S. Dep’t of Treasury, BATF], 423 F.3d 777 (7th Cir. 2005); [https://www.cadc.uscourts.gov/internet/opinions.nsf/7209D5BA146BD79585256F82005F4888/$file/01-5356a.txt Project on Nuclear Arms Control v. U.S. Dep’t of Commerce], 317 F.3d 275 (D.C. Cir. 2003); ''Southwest Center for Biological Diversity v. USDA'', 314 F.3d 1060 (9th Cir. 2002).<br />
<br />
The OPEN FOIA Act of 2009 ([https://www.govinfo.gov/content/pkg/PLAW-111publ83/pdf/PLAW-111publ83.pdf Pub. L. No. 111-83]) added subparagraph (B), further restricting the scope of Exemption 3 by providing that, in addition to the requirements under subparagraph (A), in order for any future statute to preclude disclosure under this exemption, it would have to cite specifically to this exemption. <br />
<br />
====Exemption 4====<br />
'''Trade secrets and commercial or financial information obtained from a person and privileged or confidential.'''<br />
<br />
This category relates only to records that have been supplied to the government by a “person” (i.e., someone other than the government itself).<br />
<br />
“Trade secrets” has been defined narrowly by the D.C. Circuit instead of applying the broad common-law meaning, ''see'' ''Public Citizen Health Research Group v. FDA'', 704 F.2d 1280, 1288 (D.C. Cir. 1983). “Trade secrets” are limited to information regarding the “productive process itself.” [https://www.cadc.uscourts.gov/internet/opinions.nsf/BA5A0C3F262F237585256F7A0063D909/$file/00-5128a.txt Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin.], 244 F.3d 144, 150–51 (D.C. Cir. 2001). However, if information relates to business or trade, most courts have little difficulty in finding it “commercial or financial.” Most litigation of Exemption 4 issues has turned on the meaning of “confidential.”<br />
<br />
The D.C. Circuit, in ''Critical Mass Energy Project v. NRC'', 975 F.2d 871 (D.C. Cir. 1992) (''en banc''), established two standards for determining confidentiality. If the information is “required” by the government, and if disclosure is likely to either (i) impair the government’s ability to obtain information in the future or (ii) cause substantial harm to the competitive position of the submitter of the information, then the information is confidential. ''Nat’l Parks and Conservation Ass’n v. Morton'', 498 F.2d 765 (D.C. Cir. 1974). However, if a person “voluntarily” submits the information to the government, then that information is categorically protected, provided that it is not customarily released by the submitter to the public. ''Critical Mass'', 975 F.2d at 879. See ''Center for Auto Safety'', 244 F.3d at 149, for an extensive analysis of ''Critical Mass''. ''Critical Mass'' has not been recognized in most other circuits. ''See'' ''San Juan Citizens All. v. U.S. Dep’t of the Interior'', 70 F. Supp. 3d 1214 (D. Colo. 2014). Some courts have held that harm to governmental programs unrelated to the government’s ability to obtain information might be grounds for protecting such information. ''See, e.g.'', ''9 to 5 Organization for Women Office Workers v. Bd. of Governors of the Fed. Reserve Sys.'', 721 F.2d 1, 10 (1st Cir. 1983). For a discussion of these tests, the distinction between “required” and “voluntary,” and what constitutes “customarily,” see the Justice Department’s [https://www.justice.gov/oip/foia-guide-2004-edition-exemption-4 FOIA Guide].<br />
<br />
The Trade Secrets Act, 18 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section1905&num=0&edition=prelim § 1905], imposes criminal penalties on agency employees who wrongfully disclose trade secrets. In [https://cdn.loc.gov/service/ll/usrep/usrep441/usrep441281/usrep441281.pdf Chrysler Corp. v. Brown], 441 U.S. 281, 319, n.49 (1979), the Supreme Court held that Exemption 4 and the Trade Secrets Act are essentially congruent, limiting an agency’s ability to make a discretionary release of material exempt under Exemption 4, because to do so in violation of the Trade Secrets Act would constitute an action inconsistent with law. ''See also'' ''CNA Financial Corp. v. Donovan'', 830 F.2d 1132, 144–52 (D.C. Cir. 1987), ''cert. denied'', 485 U.S. 978 (1988).<br />
<br />
A “reverse FOIA” case is one in which the submitter of information seeks to enjoin the agency from releasing that information in response to a third party’s FOIA request. In ''Chrysler Corp. v. Brown'', above, the Supreme Court held that submitters could not sue under the FOIA or the Trade Secrets Act, but only under the [[Administrative Procedure Act]] (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section701&num=0&edition=prelim § 701], et seq.), claiming illegal agency action. A leading case on the scope of review in reverse FOIA cases is ''NOW, Washington, D.C. Chapter v. Soc. Sec. Admin.'', 736 F.2d 727, 745–47 (D.C. Cir. 1984). In 1987, the President issued an executive order that requires agencies to establish and follow procedures with respect to requests for records potentially subject to this exemption. Executive Order 12600, [https://www.archives.gov/federal-register/codification/executive-order/12600.html Predisclosure Notification Procedures for Confidential Commercial Information], 52 Fed. Reg. 23781 (June 23, 1987). <br />
<br />
====Exemption 5====<br />
'''Inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.'''<br />
<br />
Exemption 5 applies to documents normally privileged in the civil discovery context and is not limited to those privileges mentioned in the legislative history. [https://cdn.loc.gov/service/ll/usrep/usrep465/usrep465792/usrep465792.pdf United States v. Weber Aircraft Co.], 465 U.S. 792, 800 (1984); ''see also'' [https://cdn.loc.gov/service/ll/usrep/usrep462/usrep462019/usrep462019.pdf FTC v. Grolier Inc.], 462 U.S. 19, 26 (1983); ''Martin v. Office of Special Counsel'', 819 F.2d 1181, 1184 (D.C. Cir. 1987); ''but see'' ''Burka v. HHS'', 87 F.3d 508, 517 (D.C. Cir. 1996) (before certain material may be found privileged, the agency must show that it is protected in discovery for reasons similar to those used in FOIA context). The most frequently invoked privileges under Exemption 5 are the deliberative process privilege (executive privilege), the attorney work-product privilege, and the attorney-client privilege. [https://cdn.loc.gov/service/ll/usrep/usrep421/usrep421132/usrep421132.pdf NLRB v. Sears, Roebuck & Co.], 421 U.S. 132, 149 (1975). Initially, however, the record must be “interagency or intraagency memorandums or letters.” This language has been construed to extend the exemption to recommendations and advice made by a number of persons outside agencies, such as members of Congress and agency consultants. ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep532/usrep532001/usrep532001.pdf U.S. Dep’t of the Interior v. Klamath Water Users Protective Ass’n], 532 U.S. 1 (2001). It does not extend to outside consultants who have a direct interest in the matter that is adverse to others. ''Id.'' For a discussion of the cases, see the Justice Department’s [https://www.justice.gov/oip/foia-guide-2004-edition-exemption-5 FOIA Guide].<br />
<br />
====Exemption 6====<br />
'''Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.'''<br />
<br />
In 1982, the Supreme Court defined “similar files” broadly, holding that any information that “applies to a particular individual” may qualify for consideration under Exemption 6. [https://cdn.loc.gov/service/ll/usrep/usrep456/usrep456595/usrep456595.pdf U.S. Dep’t of State v. Washington Post Co.], 456 U.S. 595, 599–603 (1982). The exemption may only be invoked to protect individuals; neither corporations nor associations possess protectable “personal privacy” interests. ''See, e.g.'', ''Sims v. CIA'', 642 F.2d 562, 572 n.47 (D.C. Cir. 1980); ''Nat’l Parks and Conservation Ass’n v. Kleppe'', 547 F.2d 673, 685, n.44 (D.C. Cir. 1976). “The government bears the burden of showing that a substantial invasion of privacy will occur if the documents are released.” ''Prison Legal News v. Samuels'', 787 F.3d 1142, 1147(D.C. Cir. 2015).<br />
<br />
In deciding to grant or deny a request for information under Exemption 6, the decision maker must balance the severity of the threat to an individual’s privacy interest by disclosure against the public interest, if any, in disclosure. [https://cdn.loc.gov/service/ll/usrep/usrep425/usrep425352/usrep425352.pdf U.S. Dep’t of the Air Force v. Rose], 425 U.S. 352, 372 (1976). The FOIA’s words “clearly unwarranted,” modifying the phrase “invasion of personal privacy,” tilts the balance in favor of disclosure. ''Id.'' at 378 n.16. However, where no public interest in disclosure exists, the information should be protected. ''Nat’l Ass’n of Retired Federal Employees v. Horner'', 879 F.2d 873, 879 (D.C. Cir. 1989). The Supreme Court’s decision in [https://cdn.loc.gov/service/ll/usrep/usrep489/usrep489749/usrep489749.pdf DOJ v. Reporters Committee for Freedom of the Press], 489 U.S. 749 (1989), enunciates principles that guide privacy/public interest balancing under both Exemptions 6 and 7(C). In [https://cdn.loc.gov/service/ll/usrep/usrep541/usrep541157/usrep541157.pdf National Archives and Records Administration v. Favish], 541 U.S. 157 (2004), the Court held that the privacy interests protected by this exemption include the privacy interests of surviving family members in information concerning a decedent. For a discussion of the cases and the balancing test, see the Justice Department’s [https://www.justice.gov/oip/foia-guide-2004-edition-exemption-6 FOIA Guide]. For a Supreme Court decision on the effect of redaction on release of files containing personal information about individuals, see [https://cdn.loc.gov/service/ll/usrep/usrep502/usrep502164/usrep502164.pdf U.S. Dep’t of State v. Ray], 502 U.S. 164 (1991).<br />
<br />
====Exemption 7====<br />
'''Records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and in the case of a record or information compiled by a criminal law enforcement authority in the course of criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose investigative techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.'''<br />
<br />
When the FOIA was amended in 1974, Exemption 7 was narrowed to allow withholding of investigatory records compiled for law enforcement purposes, but only to the extent that disclosure of the records would cause one of six enumerated harms. Government agencies subsequently complained that the 1974 language provided inadequate protection for confidential sources, ongoing investigations, and law enforcement manuals and other materials. The FOIA Reform Act of 1986 ([https://www.govinfo.gov/content/pkg/STATUTE-100/pdf/STATUTE-100-Pg3207.pdf Pub. L. No. 99-570]) amended the exemption again to significantly broaden the protection given to law enforcement records.<br />
<br />
The FOIA Reform Act removed the requirement that records or information be “investigatory” in character. Thus, the protections listed in Exemption 7’s six subparts now apply to all records or information compiled for law enforcement purposes regardless of the format in which it is maintained. In ''Milner v. U.S. Dep’t of the Navy'', 562 U.S. 562, 582 (2011), Justice Alito authored a concurrence explaining that “law enforcement purposes” “reasonably encompasses information used to fulfill official security and crime prevention duties.” Thus, “proactive steps designed to prevent criminal activity and to maintain security” would qualify as law enforcement activity. This theory has been used to exempt plans and information formerly withheld under the now defunct “high 2” theory of Exemption 2. ''See, e.g.'', [https://www.cadc.uscourts.gov/internet/opinions.nsf/481CF3F0828393A885257C6800698D79/$file/12-5158-1476059.pdf Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary and Water Comm’n, U.S.-Mex.], 740 F.3d 195 (D.C. Cir. 2014).<br />
<br />
The FOIA Reform Act also substituted “could reasonably be expected to” for “would” as the standard for the risk of harm with respect to subparagraphs (A) interference with enforcement proceedings, (C) unwarranted invasion of personal privacy, (D) disclosure of the identity of a confidential source, and (F) endangering the life or physical safety of any individual. This change eases a federal law enforcement agency’s burden in invoking the exemption. [https://cdn.loc.gov/service/ll/usrep/usrep489/usrep489749/usrep489749.pdf DOJ v. Reporters Comm. for Freedom of the Press], 489 U.S. 749, 756 n.9 (1989). The FOIA Reform Act also provided that the term “confidential source” includes state, local, and foreign agencies and private institutions. The Supreme Court in ''FCC v. AT&T, Inc.'', 562 U.S. 397 (2011) established that corporations do not have any “personal privacy” that would be protected by the exemption for records whose release could reasonably be expected to constitute an unwarranted invasion of privacy. For a further discussion of this exemption, see the Justice Department’s [https://www.justice.gov/oip/foia-guide-2004-edition-exemption-7 FOIA Guide]. <br />
<br />
====Exemption 8====<br />
'''Records that are contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.'''<br />
<br />
Although the legislative history of this broad exemption is not extensive, it was included to (i) protect the security of financial institutions by withholding reports from the public that contain frank evaluation of an institution’s stability and (ii) promote cooperation and communication between financial institution employees and regulatory institution examiners. ''Consumers Union of the U.S. v. Heimann'', 589 F.2d 531 (D.C. Cir. 1978).<br />
<br />
====Exemption 9====<br />
'''Geological or geophysical information and data, including maps, concerning wells.'''<br />
<br />
Exemption 9 is infrequently invoked. According to the House Report on the 1966 Act, the provision was added after witnesses contended that disclosure of seismic reports and other exploratory findings of oil companies would give speculators an unfair advantage over the companies that had invested heavily in exploration. [https://www.justice.gov/sites/default/files/jmd/legacy/2013/09/15/houserept-1497-1966.pdf H.R. Rep. No. 1497] (1966). <br />
<br />
===Judicial Review===<br />
A requester may bring suit in district court to compel the production of records wrongfully withheld by an agency ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552(a)(4)(B)– (G)]). In addition, an agency’s failure to comply with the time limits for either the initial request or the administrative appeal may be treated as a constructive exhaustion of administrative remedies, and a requester may immediately seek judicial review (§ 552(a)(6)(C)(i)). A court, however, may withhold action if exceptional circumstances exist (defined in § 552(a)(6)(C)(ii) and (iii)).<br />
<br />
The 1996 FOIA Amendments have substantially limited when agencies may claim exceptional circumstances in responding to the backlog of FOIA requests. Instead of “due diligence,” the FOIA now states that agencies must demonstrate “reasonable progress” in reducing its backlog of pending requests before this delay may qualify as an exceptional circumstance (§ 552(a)(6)(C)(ii)).<br />
<br />
This effect may be moderated by § 552(a)(6)(C)(iii), which states that a requester’s refusal to modify a request (under § 552(a)(6)(B)(ii)) may be considered in determining whether exceptional circumstances exist.<br />
<br />
A reviewing court will decide the case de novo and can examine agency records as necessary. The defending agency bears the burden of sustaining its action of withholding records. The agency may be required to prepare a ''Vaughn'' index (from ''Vaughn v. Rosen'', 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974)), an itemized index that correlates each withheld document (or portion) with a specific FOIA exemption and the relevant part of the agency’s nondisclosure justification.<br />
<br />
A plaintiff who has “substantially prevailed” may recover attorney fees from the government (§ 552(a)(4)(E)). The plaintiff must show that prosecution of the suit was reasonably necessary to obtain the information and that a causal connection exists between the suit and the agency’s production of the documents (''see, e.g.'', ''Weisberg v. DOJ'', 745 F.2d 1476 (D.C. Cir. 1984); ''Vt. Low Income Advocacy Council, Inc. v. Usery'', 546 F.2d 509, 513 (2d Cir. 1976)). To overcome the effect of the Supreme Court’s decision in [https://www.justice.gov/osg/brief/buckhannon-v-west-va-dept-health-and-human-servs-amicus-merits Buckhannon Board. and Care Home, Inc. v. West Virginia Department of Health and Human Resources], 532 U.S. 598 (2001), which precluded awarding attorney fees to prevailing parties where the plaintiff’s success did not result from a court decision, the OPEN Government Act of 2007 specified that a plaintiff should be deemed to have substantially prevailed if it obtained relief either from a court decision or a voluntary or unilateral change in agency position. A fee award is discretionary with the court and is based on four criteria: (1) the public benefit derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant’s interest in the records sought; and (4) whether the government’s withholding had a reasonable basis in law. ''Fenster v. Brown'', 617 F.2d 740, 742 (D.C. Cir. 1979).<br />
<br />
Whenever the court (i) orders production of records improperly withheld, (ii) awards attorney fees and litigation costs against the government, and (iii) issues specific “written findings” of suspected arbitrary or capricious conduct, the U.S. Office of Special Counsel must initiate a proceeding to determine whether disciplinary action is warranted. The Special Counsel reports its recommendations and findings to the agency involved, and that agency is directed to take the corrective action recommended (§ 552(a)(4)(F)(i)). Annual reports of such actions are required (§ 552(a)(4)(F)(iii)).<br />
<br />
===Reports===<br />
Agencies have extensive reporting obligations under FOIA, including an annual report to Congress containing summaries, details, and raw data of matters related to FOIA (§ 552(e)(1)) as well as quarterly reports and an annual Chief FOIA Officer Report, which are required by OIP. <br />
<br />
The attorney general must submit an annual report on judicial activity related to FOIA (§ 552(e)(6)).<br />
<br />
===Oversight and Monitoring=== <br />
The [https://www.govinfo.gov/content/pkg/PLAW-110publ175/pdf/PLAW-110publ175.pdf OPEN Government Act of 2007] created a new agency, the [https://www.archives.gov/ogis Office of Government Information Services (OGIS)] within the National Archives and Records Administration (NARA). Its function is to review the various agencies’ policies, procedures, and compliance regarding FOIA and to recommend policy changes to the President and Congress. In addition, that office is to offer mediation between requesters and agencies and may issue advisory opinions if mediation is not successful. FOIA also requires the Government Accountability Office (GAO) to conduct audits of agencies’ implementation of FOIA. In addition, it required agencies to designate a senior official at each agency to be the Chief FOIA Officer responsible for monitoring the agency’s implementation of FOIA. <br />
<br />
==Legislative History==<br />
Federal laws bearing on public access to government information date to 1789 (''see'' 1 Stat. 28, 49, 65, 68 (1789)). Under the Housekeeping Statute (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section301&num=0&edition=prelim § 301]), agency heads have long had the authority to control the dissemination of information from the files of their departments. Section 3 of the Administrative Procedure Act of 1946 (the “public disclosure” section, 5 U.S.C. § 1002 (1964 ed.)) provided that the public could obtain agency information if (1) the matter was of official public record, (2) no other statute barred release of the information, (3) persons seeking access followed published agency rules, (4) persons seeking access could show a “proper” and “direct” concern, and (5) the agency did not otherwise find good cause to deem the information confidential.<br />
<br />
FOIA evolved after a decade of debate among agency officials, legislators, and public interest group representatives (most notably, members of the press). FOIA, which was shaped largely by the efforts of Representative John Moss, revised the public disclosure section of the [[Administrative Procedure Act]] (APA), which had come to be looked upon as falling far short of its disclosure goals. ''See'' [https://www.justice.gov/sites/default/files/jmd/legacy/2013/11/07/senaterept-813-1965.pdf S. Rep. No. 813] (1965).<br />
<br />
FOIA was enacted in 1966 as new section 552 of title 5, U.S. Code ([https://www.govinfo.gov/content/pkg/STATUTE-80/pdf/STATUTE-80-Pg378.pdf Pub. L. No. 89-554]). It provided access to “any person” without requiring a showing of need, ensured the right to go to court to enforce its provisions, and left the agencies no discretion to sidestep its mandatory disclosure requirements. Despite these changes to the APA, FOIA contained, in the views of many, both procedural and substantive weaknesses. Courts responded to some of the FOIA’s weaknesses by fashioning procedural aids or interpretations, such as the requirement for an agency to provide a detailed index of withheld documents (established in ''Vaughn v. Rosen'', above) and the requirement that agencies release segregable, nonexempt portions of a partially exempt record (established in [https://cdn.loc.gov/service/ll/usrep/usrep410/usrep410073/usrep410073.pdf EPA v. Mink], 410 U.S. 73 (1973)).<br />
<br />
Representative Carlos Moorhead’s House hearings in 1972–73, ''see, e.g.,'' H.R. Rep. No. 1419 (1972), identified four problems with the 1966 Act:<br />
<br />
#Agency refusal to supply information by use of an exemption in the FOIA was commonplace;<br />
#Long delays in responding to requests often made the information useless once provided;<br />
#Delaying tactics during litigation unreasonably extended both the time and the costs to the requester; and<br />
#Lack of technical compliance with the requirements of the FOIA, as interpreted by the agency, often led to a refusal to supply requested information.<br />
<br />
FOIA was substantially amended in 1974 to address these problems and also in reaction to the abuses of the Watergate era. The 1974 amendments ([https://www.govinfo.gov/content/pkg/STATUTE-88/pdf/STATUTE-88-Pg1561.pdf Pub. L. No. 93-502]) substantially narrowed the scope of FOIA’s law enforcement and national security exemptions, and broadened the procedural provisions relating to fees, time limits, segregability, and in camera inspection of withheld information by the courts. In 1976 Congress, by means of a rider to the [[Government in the Sunshine Act]] ([https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg1241.pdf Pub. L. No. 94-409]), again limited the agencies’ ability to withhold information, this time by narrowing Exemption 3 relating to the incorporation of the nondisclosure provisions of other statutes. <br />
<br />
In 1984, Congress eliminated the requirement that FOIA proceedings have precedence over all cases on federal court dockets ([https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg3335.pdf Pub. L. No. 98-620]). In 1984 Congress also passed the CIA Information Act ([https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2209.pdf Pub. L. No. 98-477]), which amended the National Security Act of 1947 to exempt certain operational files of the Central Intelligence Agency (CIA) from FOIA’s search and review requirements. The CIA Information Act was intended to relieve the CIA of the administrative burden of searching and reviewing files that are almost always classified or otherwise not releasable under FOIA. ''See'' H.R. Rep. No. 726, pt. 1 (1984).<br />
<br />
In 1986, Congress included FOIA amendments in the Anti-Drug Abuse Act of 1986 ([https://www.govinfo.gov/content/pkg/STATUTE-100/pdf/STATUTE-100-Pg3207.pdf Pub. L. No. 99-570]). The FOIA amendments are in subtitle N, Freedom of Information Reform Act of 1986. These amendments broadened Exemption 7’s applicability to records compiled for law enforcement purposes, established new FOIA fee standards, and required each agency to adopt a schedule of fees that conforms to guidelines promulgated by the Director of OMB.<br />
<br />
In 1996, Congress passed the Electronic Freedom of Information Act Amendments ([https://www.govinfo.gov/content/pkg/PLAW-104publ231/pdf/PLAW-104publ231.pdf Pub. L. No. 104-231]). These amendments were the fruit of several years’ consideration on how to apply FOIA to electronic records. The legislation required that certain types of agency records be accessible and maintained via electronic formats. It also included several procedural requirements that sought to address agency backlog of FOIA requests and provided for the expedited processing of FOIA requests in certain situations.<br />
<br />
In 2002, Congress included a FOIA amendment in the Intelligence Authorization Act ([https://www.govinfo.gov/content/pkg/PLAW-107publ306/pdf/PLAW-107publ306.pdf Pub. L. No. 107-306]). This amendment precludes intelligence agencies from disclosing any records to foreign governments or their representatives.<br />
<br />
In 2007, Congress enacted the Openness Promotes Effectiveness in our National Government Act of 2007, or the OPEN Government Act of 2007 ([https://www.govinfo.gov/content/pkg/PLAW-110publ175/pdf/PLAW-110publ175.pdf Pub. L. 110-175], which extensively amended FOIA. It made important changes to<br />
<br />
*the fee provisions, especially concerning requests from news media and in situations where the agency misses applicable deadlines;<br />
*the attorney-fee provisions;<br />
*the disciplinary proceedings by the Office of Special Counsel;<br />
*the 20-day time limit for processing and tracking requests; and<br />
*the annual agency reports to the Attorney General.<br />
<br />
It extended coverage to records “maintained for an agency by an entity under Government contract, for the purposes of records management.” It established OGIS within NARA to review agency FOIA policies and procedures and compliance with FOIA, to recommend policy changes to Congress and the President to improve the administration of FOIA, and to offer mediation services to resolve disputes between requestors and agencies as a “non-exclusive alternative to litigation.”<br />
<br />
In 2009, Congress included the OPEN FOIA Act of 2009 in the Department of Homeland Security Appropriations Act, 2010 ([https://www.govinfo.gov/content/pkg/PLAW-111publ83/pdf/PLAW-111publ83.pdf Pub. L. No. 111-83]). This legislation amended exemption (b)(3) to further restrict what qualifies as a record exempted from disclosure by statute.<br />
<br />
In 2016, Congress enacted the FOIA Improvement Act of 2016 ([https://www.govinfo.gov/content/pkg/PLAW-114publ185/pdf/PLAW-114publ185.pdf Public L. No. 114-185]), which makes a number of significant changes to improve transparency and facilitate more efficient functioning of the FOIA system. For example, it codifies the “Rule of 3” by requiring agencies to make a record available for public inspection in an electronic format (i.e., on the Internet) if it has been requested three or more times. It requires OMB to create a single website from which persons may make a FOIA request to any agency, although agencies may retain their own websites for requests. The deliberative process exemption ((b)(5)) is restricted to records created within 25 years of the request. It codifies the Department of Justice’s foreseeable harm requirement by allowing withholding “only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” It creates various incentives for agencies to meet deadlines, such as forbidding the imposition of a fee for searching (or for copying for those who are exempt from search fees) if the agency exceeds the extended time for unusual circumstances. It increases the reporting requirements of agencies to the Attorney General and Director of OGIS, of the Attorney General to Congress, and of the Director of OGIS to Congress. It increases the duties of the Chief FOIA Officer in each agency and creates a Chief FOIA Officers Council which is directed to develop initiatives to increase transparency and compliance with the FOIA, to make recommendations for increased efficiencies, and to share best practices. It requires agencies to review their FOIA regulations and issue new regulations that implement aspects of FOIA and establishment of [https://www.foia.gov/ an online FOIA request portal] that allows the public to submit requests to any agency from a single website. <br />
<br />
===Source Note===<br />
The [https://www.justice.gov/oip Office of Information Policy in the Justice Department] has a website that has links to various FOIA resources. Among these is the Department’s [https://www.justice.gov/oip/doj-guide-freedom-information-act-0 Guide to the FOIA], which contains a detailed discussion of FOIA’s exemptions and procedural requirements and is updated on a rolling basis. The Office’s website includes [https://www.justice.gov/oip/court-decisions-overview summaries of recent FOIA court decisions]. Decisions between 2009 and 2012 can be found in [https://www.justice.gov/archive/oip/court-decisions-archive.html the Office’s archives]. A redline version of the FOIA, showing the changes made by the amendment, is also [https://www.justice.gov/oip/freedom-information-act-5-usc-552 available].<br />
<br />
OGIS created by the OPEN Government Act of 2007 has a [https://www.archives.gov/ogis website] that contains extensive information about the cases it has handled in mediation, as well as other FOIA information.<br />
<br />
The House Committee on Oversight and Government Reform periodically issues [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf A Citizen’s Guide on Using the Freedom of Information and Privacy Act of 1974 to Request Government Records] (2012).<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Clarifying and Protecting the Right of the Public to Information, [https://www.justice.gov/sites/default/files/jmd/legacy/2013/09/15/houserept-1497-1966.pdf H.R. Rep. No. 1497] (1966).<br />
*Freedom of Information Act Requests for Business Data and Reverse FOIA Lawsuits, H.R. Rep. No. 95-1382 (1978).<br />
*Electronic Freedom of Information Act Amendments of 1996, [https://www.congress.gov/104/crpt/hrpt795/CRPT-104hrpt795.pdf H.R. Rep. No. 104-795] (1996).<br />
*Freedom of Information Act Amendments of 2007, [https://www.congress.gov/110/crpt/hrpt45/CRPT-110hrpt45.pdf H.R. Rep. No. 110-45] (2007).<br />
*Clarifying and Protecting the Right of the Public to Information, and for Other Purposes, [https://www.justice.gov/sites/default/files/jmd/legacy/2013/11/07/senaterept-813-1965.pdf S. Rep. No. 813] (1965).<br />
*Freedom of Information Act Source Book: Legislative Materials, Cases, Articles, [https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/Sourcebk1974Final.pdf S. Doc. No. 82] (1974).<br />
*Freedom of Information Reform Act, S. Rep. No. 221 (1983).<br />
*Electronic Freedom of Information Improvement Act of 1995, [https://www.congress.gov/104/crpt/srpt272/CRPT-104srpt272.pdf S. Rep. No. 104-272] (1996).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-105hhrg98649/pdf/CHRG-105hhrg98649.pdf Implementation of the Electronic Freedom of Information Amendments of 1996: Is Access to Government Information Improving?], Hearing Before the H. Comm. on Oversight and Gov’t Reform, 105th Cong. (1998).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-106hhrg63673/pdf/CHRG-106hhrg63673.pdf H.R. 88, Regarding Data Available Under the Freedom of Information Act], Hearing Before the Subcomm. on Gov’t Mgmt., Info., & Tech. of the H. Comm. on Gov’t Reform, 106th Cong. (1999).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-106hhrg72077/pdf/CHRG-106hhrg72077.pdf Agency Response to the Electronic Freedom of Information Act], Hearing Before the H. Comm. on Oversight & Gov’t Reform, 106th Cong. (2000).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-109hhrg44767/pdf/CHRG-109hhrg44767.pdf Implementing FOIA], Hearing Before the H. Comm. on Oversight & Gov’t Reform, 109th Cong. (2006).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-110hhrg43029/pdf/CHRG-110hhrg43029.pdf The State of FOIA: Assessing Agency Efforts to Meet FOIA Requirements], Hearing Before the Subcomm. on Info. Policy, Census, & Nat’l Archives of the H. Comm. on Oversight & Gov’t Reform, 110th Cong. (2007).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-111hhrg61936/pdf/CHRG-111hhrg61936.pdf Administration of the Freedom of Information Act: Current Trends], Hearing Before the Subcomm. on Info. Policy, Census, and Nat’l Archives of the H. Comm. on Oversight and Gov’t Reform, 111th Cong. (2010).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67618/pdf/CHRG-112hhrg67618.pdf The Freedom of Information Act: Crowdsourcing Government Oversight], Hearing Before the H. Comm. on Oversight and Gov’t Reform, 112th Cong. (2011) ([https://oversight.house.gov/hearing/the-freedom-of-information-act-crowd-sourcing-government-oversight/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67930/pdf/CHRG-112hhrg67930.pdf Federal Reserve Lending Disclosure: FOIA, Dodd-Frank, and the Data Dump], Hearing Before the Subcomm. on Domestic Monetary Policy and Tech. of the H. Comm. on Fin. Servs., 112th Cong. (2011).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112shrg73178/pdf/CHRG-112shrg73178.pdf The Freedom of Information Act: Ensuring Transparency and Accountability in the Digital Age], Hearing Before S. Comm. on the Judiciary, 112th Cong. (2011) ([https://www.judiciary.senate.gov/meetings/the-freedom-of-information-act-ensuring-transparency-and-accountability-in-the-digital-age video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg67719/pdf/CHRG-112hhrg67719.pdf Why Isn’t the Department of Homeland Security Meeting the President’s Standard on FOIA?], Hearing Before the H. Comm. on Oversight and Gov’t Reform, 112th Cong. (2011).<br />
*A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, [https://www.govinfo.gov/content/pkg/CRPT-112hrpt689/pdf/CRPT-112hrpt689.pdf H.R. Rep. No. 112-689] (2012).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112hhrg74376/pdf/CHRG-112hhrg74376.pdf FOIA in the 21st Century: Using Technology to Improve Transparency in Government], Hearing Before the H. Comm. on Oversight & Gov’t Reform, 112th Cong. (2012) ([https://oversight.house.gov/hearing/foia-in-the-21st-century-using-technology-to-improve-transparency-in-government/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-112shrg76357/pdf/CHRG-112shrg76357.pdf The Freedom of Information Act: Safeguarding Critical Infrastructure Information and the Public’s Right to Know], Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2012) ([https://www.judiciary.senate.gov/meetings/the-freedom-of-information-act-safeguarding-critical-infrastructure-information-and-the-publics-right-to-know video]).<br />
*FOIA Oversight and Implementation Act of 2013, [https://www.govinfo.gov/content/pkg/CRPT-113hrpt155/pdf/CRPT-113hrpt155.pdf S. Rep. No. 113-155](2013).<br />
*FOIA Improvement Act of 2014, [https://www.govinfo.gov/content/pkg/CRPT-113srpt287/pdf/CRPT-113srpt287.pdf S. Rep. No. 113-287] (2014).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg22472/pdf/CHRG-114hhrg22472.pdf Ensuring Agency Compliance with the Freedom of Information Act (FOIA)], Hearing Before the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015) ([https://oversight.house.gov/hearing/ensuring-agency-compliance-with-the-freedom-of-information-act-foia/ video]).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg94348/pdf/CHRG-114hhrg94348.pdf Ensuring Government Transparency Through FOIA Reform], Hearing Before the Subcomm. on Gov’t Operations of the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2015).<br />
*FOIA Improvement Act of 2015, [https://www.congress.gov/114/crpt/srpt4/CRPT-114srpt4.pdf S. Rep. No. 114-4] (2015).<br />
*DHS FOIA Efficiency Act of 2015, [https://www.govinfo.gov/content/pkg/CRPT-114hrpt148/pdf/CRPT-114hrpt148.pdf H.R. Rep. No. 114–148] (2015).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-114hhrg26121/pdf/CHRG-114hhrg26121.pdf Examining FOIA Compliance at the Department of State], Hearing Before the H. Comm. on Oversight and Gov’t Reform, 114th Cong. (2016) ([https://oversight.house.gov/hearing/examining-foia-compliance-department-state/ video]).<br />
*FOIA Oversight and Implementation Act of 2015, [https://www.congress.gov/114/crpt/hrpt391/CRPT-114hrpt391.pdf H.R. Rep. No. 114-391] (2016).<br />
</div><br />
<br />
===Executive Orders and White House Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Executive Order 12600, [https://www.archives.gov/federal-register/codification/executive-order/12600.html Predisclosure Notification Procedures for Confidential Commercial Information], 52 Fed. Reg. 23781 (June 23, 1987).<br />
*Executive Order 13392, [https://www.govinfo.gov/content/pkg/FR-2005-12-19/pdf/05-24255.pdf Improving Agency Disclosure of Information], 70 Fed. Reg. 75373 (Dec. 14, 2005).<br />
*[https://www.imls.gov/sites/default/files/presidentmemorandum620.pdf Presidential Memorandum for Heads of Executive Departments and Agencies, Freedom of Information Act], 74 Fed. Reg. 4683 (Jan. 21, 2009).<br />
</div><br />
<br />
===Department of Justice Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.justice.gov/oip/doj-guide-freedom-information-act-0 Guide to the Freedom of Information Act] (formerly known as the ''Freedom of Information Act Guide and Privacy Act Overview'').<br />
*[https://www.webharvest.gov/peth04/20041108030842/www.usdoj.gov/04foia/cl-tofc.html Freedom of Information Case List], an alphabetical compilation of judicial decisions addressing access issues under the Freedom of Information Act and Privacy Act, was published biennially until 2002 by the Office of Information and Privacy.<br />
*A chronological list of cases between May 2009 and Dec. 2012 is available [https://www.justice.gov/archive/oip/court-decisions-archive.html online at the Justice Department’s Archives]. Cases from January 2013 to the present are [https://www.justice.gov/oip/court-decisions-overview also available online].<br />
*[https://www.justice.gov/oip/attorney-generals-memorandum-public-information-section-administrative-procedure-act Attorney General’s Memorandum on the Public Information Section of the Administrative Procedure Act (FOIA)] (1967).<br />
*[https://www.justice.gov/oip/attorney-generals-memorandum-1974-amendments-foia Attorney General’s Memorandum on the 1974 Amendments to the Freedom of Information Act] (1975).<br />
*[https://www.justice.gov/archive/oip/86agmemo.htm Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act] (1987).<br />
*[https://www.justice.gov/oip/foia-update FOIA Update], a newsletter of information and guidance for federal agencies that was published quarterly by the Office of Information and Privacy during the period 1979–2000.<br />
*[https://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memo-march2009.pdf Attorney General’s Memorandum for Heads of All Federal Departments and Agencies Regarding the FOIA] (2009).<br />
*Gen. Servs. Admin. & U.S. Dep’t of Justice, [https://www.gsa.gov/cdnstatic/Your_Right_to_Federal_Records.pdf Your Right to Federal Records] (2011).<br />
*[https://www.justice.gov/oip/page/file/623931/download Statutes Found to Qualify under Exemption 3 of the FOIA] (2016).<br />
*[https://www.justice.gov/oip/reports-1 Annual FOIA Reports] (2016).<br />
*[https://www.justice.gov/oip/reports/2016_foia_litigation_compliance_report/download Freedom of Information Act 2016 Litigation and Compliance Report] (2016).<br />
*[https://www.justice.gov/oip/oip-guidance/defining_a_record_under_the_foia Defining a Record under the FOIA] (2017).<br />
*[https://www.justice.gov/oip/foia-resources/foia-self-assessment-toolkit/download FOIA Self-Assessment Toolkit] (2017).<br />
*[https://www.justice.gov/oip/page/file/1040431/download Freedom of Information Act 2017 Litigation and Compliance Report] (2017).<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*71-2 [https://www.acus.gov/sites/default/files/documents/71-2.pdf Principles and Guidelines for Implementation of the Freedom of Information Act]<br />
*79-1 [https://www.acus.gov/sites/default/files/documents/79-1-with-table.pdf Hybrid Rulemaking Procedures of the Federal Trade Commission]<br />
*81-1 [https://www.acus.gov/sites/default/files/documents/81-1.pdf Procedures for Assessing and Collecting Freedom of Information Act Fees]<br />
*82-1 [https://www.acus.gov/sites/default/files/documents/82-1.pdf Exemption (b)(4) of the Freedom of Information Act]<br />
*83-4 [https://www.acus.gov/sites/default/files/documents/83-4.pdf Use of the FOIA for Discovery Purposes]<br />
*88-10 [https://www.acus.gov/recommendation/federal-agency-use-computers-acquiring-and-releasing-information Federal Agency Use of Computers in Acquiring and Releasing Information]<br />
*88-11 [https://www.acus.gov/sites/default/files/documents/88-11.pdf Encouraging Settlements by Protecting Mediator Confidentiality]<br />
*89-8 [https://www.acus.gov/sites/default/files/documents/89-8.pdf Agency Practices and Procedures for the Indexing and Public Availability of Adjudicatory Decisions]<br />
*95-1 [https://www.acus.gov/sites/default/files/documents/95-1.pdf Application and Modification of Exemption 8 of the Freedom of Information Act]<br />
*95-6 [https://www.acus.gov/sites/default/files/documents/95-6.pdf ADR Confidentiality and the Freedom of Information Act]<br />
*2014-1 [https://www.acus.gov/sites/default/files/documents/Recommendation%202014-1%20%28Resolving%20FOIA%20Disputes%29.pdf Resolving FOIA Disputes Through Targeted ADR Strategies]<br />
*2016-5 [https://www.acus.gov/sites/default/files/documents/Recommendation%202016-5.pdf The Use of Ombuds in Federal Agencies]<br />
*2017-1 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-1%20%28Adjudication%20Materials%29.pdf Adjudication Materials on Agency Websites]<br />
*2019-3 [https://www.acus.gov/recommendation/public-availability-agency-guidance-documents Public Availability of Agency Guidance Documents]<br />
*2020-2, [https://www.acus.gov/recommendation/protected-materials-public-rulemaking-dockets Protected Materials in Public Rulemaking Dockets]<br />
*2020-5, [https://www.acus.gov/recommendation/publication-policies-governing-agency-adjudicators Publication of Policies Governing Agency Adjudicators]<br />
*2020-6, [https://www.acus.gov/recommendation/agency-litigation-webpages Agency Litigation Webpages]<br />
*2021-6, [https://www.acus.gov/recommendation/public-access-agency-adjudicative-proceedings Public Access to Agency Adjudicative Proceedings]<br />
*2021-7, [https://www.acus.gov/recommendation/public-availability-inoperative-agency-guidance-documents Public Availability of Inoperative Agency Guidance Documents]<br />
*2022-5, [https://www.acus.gov/sites/default/files/documents/Regulatory Enforcement Manuals_0.pdf Regulatory Enforcement Materials<br />
*2022-6, [https://www.acus.gov/sites/default/files/documents/Public Availability of Settlement Agreements in Agency Enforcement Proceedings.pdf Public Availability of Settlement Agreements in Agency Enforcement Proceedings]<br />
</div><br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO-21-148, [https://www.gao.gov/products/gao-21-148 Freedom of Information Act: Update on Federal Agencies' Use of Exemption Statutes] (2021).<br />
*GAO-21-254, [https://www.gao.gov/products/gao-21-254 Freedom of Information Act: Actions Needed to Improve Agency Compliance with Proactive Disclosure Requirements] (2021).<br />
*GAO-22-105040, [https://www.gao.gov/products/gao-22-105040 Freedom of Information Act: Selected Agencies Adapted to the COVID-19 Pandemic but Face Ongoing Challenges and Backlogs] (2022). <br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Stephanie Alvarez-Jones, Note, [http://cardozolawreview.com/wp-content/uploads/2018/08/ALVAREZ-JONES.39.3.pdf “Too Big to FOIA”: How Agencies Avoid Compliance with the Freedom of Information Act,] 39 Cardozo L. Rev. 1055 (2018).<br />
*Michael D. Becker, Comment, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Piercing-Glomar-Using-the-Freedom-of-Information-Act-and-the-Official-Acknowledgement-Doctrine-to-Keep-Government-Secrecy-in-Check.pdf Piercing Glomar: Using the Freedom of Information Act and the Official Acknowledgement Doctrine to Keep Government Secrecy in Check], 64 Admin. L. Rev. 673 (2012).<br />
*John E. Bonine, [https://www.acus.gov/sites/default/files/documents/D1%201981-01A%20BONINE%20Fee%20Waivers%20Under%20FOIA%201981%20ACUS%2019.pdf Public-Interest Fee Waivers under the Freedom of Information Act] (1981) (report to ACUS).<br />
*Erin C. Carroll, [https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1014&context=ulr Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press], 2016 Utah L. Rev. 193 (2016).<br />
*Nathaniel E. Castellano, ''Where the Sunshine Meets the Shade: Using FOIA Exemption 4 to Protect Confidential Compliance Information after the 2016 FOIA Improvement Act'', 46 Pub. Cont. L.J. 589 (2017).<br />
*Cary Coglianese, [https://www.acus.gov/sites/default/files/documents/Coglianese%20Guidance%20Report%20to%20ACUS%2005.15.19%20-%20FINAL.pdf Public Availability of Agency Guidance Documents] (May 15, 2019) (report to ACUS).<br />
*''The U.S. Freedom of Information Act at 50'', 21 Comm. L. & Pol’y (special ed.) (2016).<br />
*Julia P. Eckart, [https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1118&context=shlj The Freedom of Information Act—The Historical and Current Status of Walking the Tight Rope Between Public Access to Government Records and Protecting National Security Interests], 41 Seton Hall Legis. J. 241 (2017).<br />
*Robert Frey, [https://www.virginialawreview.org/articles/reclaiming-the-right-to-know-the-case-for-considering-derivative-benefits-in-foias-personal-privacy-exemptions/ Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions], 107 Va. L. Rev. 1499 (2021). <br />
*Donald A. Giannella, [https://www.acus.gov/sites/default/files/documents/D1%201971-02%20GIANNELLA%20Impl%20FOIA%20Proposal%20for%20Uniform%20Regs%202%20ACUS%20119.pdf Agency Procedures Implementing the Freedom of Information Act: A Proposal for Uniform Regulations] (May 1971) (report to ACUS).<br />
*Margaret Gilhooley, [https://www.acus.gov/sites/default/files/documents/D3%201989-08%20GILHOOLEY%20FOIA%20%2B%20Adj%201989%20ACUS%20545.pdf The Availability of Decisions and Precedents in Agency Adjudications: The Impact of the Freedom of Information Act Publication Requirements] (1989 (report to ACUS).<br />
*Mark H. Grunewald, [https://www.acus.gov/sites/default/files/documents/D1%201995-06%20GRUNEWALD%20FOIA%20%2B%20ADR%201994-95%20ACUS%20557.pdf The Freedom of Information Act and Confidentiality under the Administrative Dispute Resolution Act] (1995) (report to ACUS).<br />
*Mark H. Grunewald, [https://www.acus.gov/sites/default/files/documents/FINAL%20ACUS%20Final%20FOIA%20Report%20-%20Grunewald%20-%204-28-14.pdf Reducing FOIA Litigation Through Targeted ADR Strategies] (Apr. 28, 2014) (report to ACUS).<br />
*Phillip J. Harter, Jr., [https://www.acus.gov/sites/default/files/documents/I5%201988-11%20HARTER%20Neither%20Cop%20nor%20Collection%20Agent%20-%20Mediator%20Conf%201988%20ACUS%20839.pdf Neither Cop Nor Collection Agent: Encouraging Administrative Settlements by Ensuring Mediator Confidentiality] (Nov. 15, 1988) (report to ACUS).<br />
*Michael Herz, ''Law Lags Behind: FOIA and Affirmative Disclosure of Information'', 7 Cardozo Pub. L. Pol’y & Ethics J. 577 (2009).<br />
*Carole S. Houk et al., [https://www.acus.gov/sites/default/files/documents/Ombudsman%20Project%20%282016%29--Complete%20Final%20Report.pdf A Reappraisal—The Nature and Value of Ombudsmen in Federal Agencies] (Nov. 14, 2016) (report to ACUS).<br />
*Jameel Jaffer & Brett Max Kaufman, [https://www.yalelawjournal.org/pdf/JafferKaufmanforPosting_f5dj1p2t.pdf A Resurgence of Secret Law], 126 Yale L.J. F. 242 (2016).<br />
*Seth F. Kreimer, [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1221&context=jcl The Freedom of Information Act and the Ecology of Transparency], 10 U. Pa. J. Const. L. 1011 (2008).<br />
*Margaret B. Kwoka, [https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1644&context=aulr The Freedom of Information Act Trial], 61 Am. U. L. Rev. 217 (2011).<br />
*Margaret B. Kwoka, [https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3641&context=mlr Deference, Chenery, and FOIA], 73 Md. L. Rev. 1060 (2014).<br />
*Margaret B. Kwoka, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3846&context=dlj FOIA, Inc.], 65 Duke L.J. 1361 (2016).<br />
*Margaret B. Kwoka, [https://www.yalelawjournal.org/pdf/KwokaFinal_nm7qr8ib.pdf Inside FOIA, Inc.], 126 Yale L.J. F. 265 (2016).<br />
*Margaret B. Kwoka, [https://www.yalelawjournal.org/pdf/Kwoka_2s1ppe51.pdf First-Person FOIA], 127 Yale L.J. 2204 (2018).<br />
*Margaret B. Kwoka, Saving the Freedom of Information Act (Ohio State University 2021).<br />
*Margaret B. Kwoka, [https://georgetownlawtechreview.org/due-process-data-access-and-information-commissions/GLTR-06-2022/ Due Process, Data Access, and Information Commissions], 6 Geo. L. Tech. Rev. 446 (2022)*Sarah Shik Lamdan, ''Protecting the Freedom of Information Act Requestor: Privacy for Information Seekers'', 21 Kan. J.L. & Pub. Pol’y 221 (2012).<br />
*David E. McCray, [https://www.yalelawjournal.org/pdf/McCrawMacroed_bdpwrc38.pdf The “Freedom from Information” Act: A Look Back at Nader, FOIA, and What Went Wrong], 126 Yale L.J. F. 232 (2016).<br />
*Alan B. Morrison, [https://www.gwlr.org/wp-content/uploads/2015/11/83-Geo-Wash-L-Rev-1540.pdf The Administrative Conference of the United States and Its Work on the Freedom of Information Act: A Look Back and a Look Forward], 83 Geo. Wash. L. Rev. 1540 (2015).<br />
*Beth Simone Noveck, [https://www.yalelawjournal.org/pdf/NoveckFinal_xjaur4gj.pdf Is Open Data the Death of FOIA?], 126 Yale L.J. F. 273 (2016).<br />
*James T. O’Reilly, [https://www.acus.gov/sites/default/files/documents/D1%201982-01A%20OREILLY%20Regaining%20Confidence%20Protecting%20Bus%20Conf%20Info%201982%20ACUS%2030.pdf Regaining a Confidence: Protection of Business Confidential Data Through Reform of the Freedom of Information Act] (1982) (report to ACUS).<br />
*Henry H. Perritt, Jr., [https://www.acus.gov/sites/default/files/documents/D4%201988-10%20PERRITT%20Elec%20Acqu%20%2B%20Release%20of%20Info%201988%20ACUS%20601.pdf Electronic Acquisition and Release of Federal Agency Information] (Oct. 1, 1988) (report to ACUS).<br />
*David E. Pozen, [https://www.pennlawreview.com/2020/04/28/freedom-of-information-beyond-the-freedom-of-information-act/ Freedom of Information Beyond the Freedom of Information Act], 165 U. Pa. L. Rev. 1097 (2017).<br />
*Melanie A. Pustay, [https://www.yalelawjournal.org/pdf/PustayFinalDraft_aa9s71wy.pdf Memorandums to Messages: The Evolution of FOIA in the Age of the Internet], 126 Yale L.J. F. 252 (2016).<br />
*Robert Ratish, Note & Comment, ''Democracy’s Backlog: The Electronic Freedom of Information Act Ten Years Later'', 34 Rutgers Computer & Tech. L.J. 211 (2007).<br />
*Devin S. Schindler, [https://static1.squarespace.com/static/591ccf16db29d6afe8606726/t/59801ae83e00be8e7b429d2f/1501567720521/38-1+Schindler+finalTEST.pdf Between Safety and Transparency: Prior Restraints, FOIA, and the Power of the Executive], 38 Hastings Const. L.Q. 1 (2010).<br />
*Roy A. Schotland, [https://www.acus.gov/sites/default/files/documents/D1%201995-01%20SCHOTLAND%20FOIA%20Exemption%208%20xr%20U4%201994-95%20ACUS%20211.pdf Reexamining the Freedom of Information Act’s Exemption 8] (1995) (report to ACUS).<br />
*Daniel J. Sheffner, [https://www.acus.gov/sites/default/files/documents/Adjudication%20Materials%20on%20Agency%20Websites_8.pdf Adjudication Materials on Agency Websites] (Apr. 10, 2017) (report to ACUS).<br />
*Russell B. Stevenson, Jr., [https://www.acus.gov/sites/default/files/documents/D1%201982-01B%20STEVENSON%20Protecting%20Bus%20Secrets%20under%20FOIA%20Exc%204%201982%20ACUS%2081.pdf Protecting Business Secrets under the Freedom of Information Act: Managing Exemption 4] (1982) (report to ACUS).<br />
*Barry Sullivan, [https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3544&context=mlr FOIA and the First Amendment: Representative Democracy and the People’s Elusive “Right to Know”], 72 Md. L. Rev. 1 (2012).<br />
*Laurence Tai, ''Fast Fixes for FOIA'', 52 Harv. J. on Legis. 455 (2015).<br />
*Edward Tomlinson, [https://www.acus.gov/sites/default/files/documents/D1%201983-04%20TOMLINSON%20FOIA%20for%20Discovery%20Purposes%201983%20ACUS%20277.pdf Use of the Freedom of Information Act for Discovery Purposes] (1984) (report to ACUS).<br />
*Deepa Varadarajan, [https://www.uclalawreview.org/business-secrecy-expansion-and-foia/ Business Secrecy Expansion and FOIA], 68 UCLA L. Rev. 462 (2021).<br />
*[https://www.yalelawjournal.org/collection/foia-50-years-later FOIA 50 Years Later], 126 Yale L.J. F. (2016).<br />
*Christopher S. Yoo and Kellen McCoy, [https://www.repository.law.indiana.edu/ilj/vol96/iss4/7/ Privacy vs. Transparency: Handling Protected Materials in Agency Rulemaking], 96 Indiana Law Journal 1261 (2021).<br />
</div><br />
<br />
===Other Sources===<br />
<br />
*[http://www.accessreports.com/ Access Reports], a biweekly newsletter published by Access Reports, Inc., Lynchburg, Va.<br />
*''Litigation under the Federal Open Government Laws: 2010'' (Elec. Privacy Info. Ctr., 2010).<br />
*James R. O’Reilly, ''Federal Information Disclosure'' ''2014-1 ed.'' (Thomson Reuters 2014).<br />
<br />
==Statutory Provisions==<br />
Freedom of Information Act<br />
<br />
Title 5 U.S. Code<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552. Public information; agency rules, opinions, orders, records, and proceedings]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Federal_Register_Act&diff=1650Federal Register Act2023-08-12T20:59:08Z<p>MGluth: </p>
<hr />
<div>44 U.S.C. [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter15&edition=prelim §§ 1501–1511] (2012), enacted by Pub. L. No. 74-220, 49 Stat. 500, July 25, 1935; significantly amended by Pub. L. No. 75-158, 56 Stat. 304, June 19, 1937; by Pub. L. No. 81-821, 61 Stat. 636, Sept. 23, 1950; by Pub. L. No. 90-620, 82 Stat. 1273, Oct. 22, 1968; by [https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg1063.pdf Pub. L. No. 95-440], 92 Stat. 1063, Oct. 10, 1978; by title I, [https://www.govinfo.gov/content/pkg/STATUTE-98/pdf/STATUTE-98-Pg2280.pdf Pub. L. No. 98-497], 98 Stat. 2280, 2286, Oct. 19, 1984; by [https://www.govinfo.gov/content/pkg/PLAW-113publ235/pdf/PLAW-113publ235.pdf Pub. L. No. 113-235], 128 Stat. 2537, Dec. 16, 2014; by [https://www.congress.gov/115/plaws/publ120/PLAW-115publ120.pdf Pub. L. No. 115-120], 132 Stat. 28, Jan. 22, 2018.<br />
<br />
'''Lead Agency:''' <br />
<br />
[https://www.archives.gov/federal-register Office of the Federal Register], [https://www.archives.gov/ National Archives and Records Administration] <br />
<br />
==Overview==<br />
<br />
===Background===<br />
Recognizing the need for a uniform system for publication of federal regulations and other important documents, Congress approved the Federal Register Act (FRA) in 1935. Prior to establishment of the ''[https://www.federalregister.gov/ Federal Register]'', there were no facilities for filing and publication of rules, executive orders, and similar documents having general applicability and legal effect. This made it extremely difficult, and sometimes impossible, for interested persons to learn about rules and orders that had the force of law. Indeed, passage of this legislation ended what many sponsors of the bill described as “the twilight zone of government regulations.”<br />
<br />
The FRA requires the filing of certain documents with the [https://www.archives.gov/federal-register Office of the Federal Register] (OFR), availability of these documents for public inspection, publication of documents in the ''Federal Register'', and the permanent codification of rules in the [https://www.ecfr.gov/cgi-bin/ECFR?page=browse Code of Federal Regulations] (C.F.R.). Agencies must file executive orders, presidential proclamations, and documents, selected by the President, with general applicability and legal effect. In addition, the [[Administrative Procedure Act]] (APA) requires publication in the ''Federal Register'' of agency statements of organization, procedural rules, and the public notices required for agency rulemaking. Outside the adjudication of specific cases, where due process might require additional notice, publication of documents in the Federal Register is ordinarily considered to provide “constructive notice” that is legally sufficient to give affected persons legal notice of the document’s existence and contents.<br />
<br />
===Office of the Federal Register===<br />
The [https://www.archives.gov/about/archivist/archivist-biography-ferriero.html Archivist of the United States], acting through the OFR, is charged with the custody and, together with the Director of the [https://www.gpo.gov/ Government Publishing Office] (GPO), the prompt and uniform printing and distribution of the documents required or authorized to be published in the ''Federal Register''. The GPO is responsible for actual publication of the ''Federal Register''.<br />
<br />
Through the OFR, the [https://www.archives.gov/ National Archives and Records Administration] (NARA) provides ready access to regulations by filing them for public inspection, publishing them in the daily ''Federal Register'', preparing indexes and tables of contents, and codifying them in the C.F.R. It provides access to federal public laws by publishing slip laws and compiling them as the [https://www.govinfo.gov/app/collection/statute U.S. Statutes at Large]. Presidential documents appear in the daily ''Federal Register'', the [https://www.govinfo.gov/help/cpd Weekly Compilation of Presidential Documents], the semiannual volumes of [https://www.archives.gov/federal-register/publications/presidential-papers.html Public Papers of the President], in [https://www.ecfr.gov/cgi-bin/text-idx?SID=05b95fff7f85f41a91fff02d2a079e42&mc=true&tpl=/ecfrbrowse/Title03/3cfrv1_02.tpl#0 Title 3] of the C.F.R., and in the [https://www.archives.gov/federal-register/codification Codification of Proclamations and Executive Orders].<br />
<br />
===The ''Federal Register''===<br />
The ''[https://www.federalregister.gov/ Federal Register]'' is the U.S. Government’s official gazette published every business day. It contains federal agency regulations; proposed rules and notices; and executive orders, proclamations, and other Presidential documents. The ''Federal Register'' informs citizens of their rights and obligations and provides access to a wide range of federal benefits and opportunities for funding. NARA’s OFR prepares the ''Federal Register'' for publication in partnership with the GPO, which distributes it in paper, on microfiche, and on the Internet.<br />
<br />
The ''Federal Register'' is intended to provide potentially useful information about government activities to people who need to know about the day-to-day operations of the federal government; those whose business is regulated by a federal agency; attorneys practicing before a regulatory agency; organizations wishing to attend public hearings or meetings or apply for grants; and others concerned with government actions that affect the environment, health care, financial services, exports, education, or other major public policy issues.<br />
<br />
===Organization of the Register===<br />
<br />
Each issue of the ''Federal Register'' is organized into four categories:<br />
<br />
*Presidential Documents, including executive orders and proclamations;<br />
*Rules and Regulations, including policy statements and interpretations of rules;<br />
*Proposed Rules, including petitions for rulemaking and other advance proposals; and<br />
*Notices, including scheduled hearings and meetings open to the public, grant applications, and administrative orders.<br />
<br />
===The Code of Federal Regulations===<br />
<br />
Documents published in the ''Federal Register'' as rules and proposed rules include citations to the C.F.R. parts affected. The C.F.R. contains the complete and official text of agency regulations organized into 50 titles covering broad subject areas. The C.F.R. is updated and published once a year in print, but is updated daily [http://www.ecfr.gov on-line].<br />
<br />
===Obtaining Federal Register Information===<br />
Free access to the unofficial online [https://www.federalregister.gov/ ''Federal Register''] and [https://www.ecfr.gov/cgi-bin/ECFR?page=browse C.F.R.] is available. <br />
<br />
The daily ''Federal Registe''r has a table of contents organized alphabetically by agency, which lists each document. Two monthly publications provide information on documents that appeared in past issues of the ''Federal Register'': the [https://www.govinfo.gov/help/lsa LSA] (List of C.F.R. Sections Affected) is a numerical listing that helps readers track changes to the C.F.R.; and the [https://www.archives.gov/federal-register/the-federal-register/indexes.html Federal Register Index] is a cumulative subject index of documents published in the ''Federal Register''. The online edition has the same table of contents as the paper edition, with hypertext links to take users directly to each document in the current issue. Tables of contents with these hypertext links provide access to ''Federal Register'' documents published since January 1, 1998. Online users also can search by category, subject matter, and date to retrieve documents in current or past issues from 1994 through the present day.<br />
<br />
===Incorporation by Reference (IBR)===<br />
Not all information is readily accessible in print or online. A growing point of contention concerns the practice of codifying—through reference—technical standards in the ''Federal Register'' that are developed by private organizations. To access the standards in full, one generally has to visit the OFR or NARA in person, or pay a sizable fee to a private party. Commonly known as [https://www.archives.gov/federal-register/cfr/ibr-locations.html “incorporation by reference” (IBR)], its authority is derived from [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552(a)(1)(E)] of the APA, which allows standards published in the ''Federal Register'' to be incorporated by reference if those standards are “reasonably available” (an undefined requirement) and are approved by the Director of the Federal Register pursuant to applicable OFR regulations. Today, it is conservatively estimated that there are 9,500 IBR standards in the C.F.R. Some have challenged the continuance of this ever-expanding phenomenon, arguing (1) that it is inconsistent with the principles of open government and (2) that the established presence of freely accessible sites to view agency rules, such as federalregister.gov and ecfr.gov, has obviated IBR’s original purpose to compress the size and improve the readability of the C.F.R.<br />
<br />
In October of 2013, the Office of Federal Register partially granted, through a notice of proposed rulemaking, a petition making these very assertions. In essence, the petitioners requested that all material “IBR’d” into the C.F.R. be available for free online. While agreeing with the petitioners that the IBR process should be updated, the OFR disclaimed the authority to promulgate what the petitioners sought. The OFR also noted, among other things, that the daily ''Federal Register'' is not universally free and that the FRA still requires print publication of both the ''Federal Register'' and the C.F.R. Despite rejecting the petitioner’s central request, the OFR nevertheless proposed that “if agencies seek the Director’s approval of an IBR request, they must set out the following information in the preambles of their rulemaking documents: discussions of the actions the agency took to make the materials reasonably available to interested parties, or summaries of the content of the materials the agencies wish to IBR.” [https://www.govinfo.gov/content/pkg/FR-2013-10-02/pdf/2013-24217.pdf Incorporation by Reference], 78 Fed. Reg. 60784 (proposed Oct. 2, 2013).<br />
<br />
===Role of the Administrative Committee===<br />
The [https://www.archives.gov/federal-register/acfr Administrative Committee of the Federal Register] consists of the Archivist of the United States or Acting Archivist, an officer of the Department of Justice designated by the Attorney General, and the Public Printer or Acting Public Printer. This Committee is responsible for prescribing, with the approval of the President, regulations for carrying out the FRA. These regulations appear in [https://www.ecfr.gov/cgi-bin/text-idx?SID=ac0549244d65e89defdc4e076e443907&mc=true&tpl=/ecfrbrowse/Title01/1cfrv1_02.tpl#0 1 C.F.R. Parts 1–22] and deal with format and distribution of the ''Federal Register'' and preparation and transmittal of documents.<br />
<br />
==Legislative History and Congressional Documents==<br />
<br />
For years prior to passage of the FRA, many people had advocated legislation that would establish a means for systematic publication and availability of important government documents. Until the FRA’s passage, though, the United States was one of very few large nations without an official gazette. In 1934, the American Bar Association formally recommended that rules and “other exercises of legislative power by executive or administrative officials” be made readily available at some central office and be subject to requirements that they be published “as prerequisite to their going into force and effect.” Later that year, the need for such a system was evidenced when, in the “Hot Oil” case ([https://cdn.loc.gov/service/ll/usrep/usrep293/usrep293388/usrep293388.pdf Panama Refining Co. v. Ryan], 293 U.S. 388 (1935)), the Attorney General, arguing in the Supreme Court, admitted that the trial below had proceeded in ignorance of a technical, though inadvertent, revocation of the regulation on which prosecution had rested. This last-minute discovery—of an executive order that accomplished the unintended amendment and had been overlooked for over a year, to the detriment of the defendant—highlighted the need for systematic publication. An interagency committee examined the problem of making administrative law readily available and recommended a legislative solution that would centralize custody and publication of agency rules and orders.<br />
<br />
Several bills establishing a central office to collect and publish agency rules and orders were introduced during the first session of the 74th Congress in early 1935. These included H.R. 1403, H.R. 2884, H.R. 4015, H.R. 5154, and H.R. 6323. Most of these were referred to the Committee on the Judiciary, which held hearings on February 6, 1935, concerning H.R. 5154 and H.R. 2884 introduced by Representative Emanuel Celler. ''Hearing on H.R. 5154 and H.R. 2884'', Before the Subcomm. of the H. Comm. on the Judiciary, 74th Cong. (1935). On March 4, 1935, Representative Celler submitted a report to accompany H.R. 6323, on Publication of Governmental Rules and Regulations, that synopsized the bill and recommended its passage by the full House. H.R. Rep. No. 280 (1935). The Committee on the Library also reported H.R. 4015, a bill for filing and indexing government publications, on May 13, 1935. H.R. Rep. No. 885 (1935). The full House approved H.R. 6323 on April 1, 1935.<br />
<br />
A bill similar to H.R. 6323 was introduced in the Senate by Senator Henry Ashurst on March 13, 1935. Both this bill, S. 2236, and H.R. 6323 were initially referred to the Senate Judiciary Committee; H.R. 6323 was subsequently referred to the Committee on the Library. The full Senate approved H.R. 6323 with several amendments on June 10, 1935.<br />
<br />
On July 11, 1935, a conference report was submitted by the Committee of Conference. H.R. Rep. No. 1502 (1935). The Senate agreed to the report that day, and the House did the same on July 22. The bill was signed into law on July 25, 1935.<br />
<br />
===Source Note===<br />
<br />
NARA’s OFR has prepared a useful guide, [https://www.archives.gov/federal-register/tutorial/online-pdf.html The Federal Register: What It Is and How to Use It]. This office also publishes a [https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf Document Drafting Handbook] that explains in detail how to prepare documents for the ''Federal Register''. The regulations for carrying out the FRA are located at [https://www.ecfr.gov/cgi-bin/text-idx?SID=b279388451419529763baa76092437f8&mc=true&tpl=/ecfrbrowse/Title01/1cfrv1_02.tpl#0 1 C.F.R. Parts 1–22]. NARA has a list of [https://www.archives.gov/federal-register Federal Register Research Tools] that can provide page numbers or citations.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<br />
*''Hearing on H.R. 5154 and H.R. 2884'', Before the Subcomm. of the H. Comm. on the Judiciary, 74th Cong. (1935).<br />
*Report to accompany H.R. 6323, on Publication of Governmental Rules and Regulations, Report No. 280 (1935)<br />
*Filing and Indexing Service for Useful Government Publications, Report No. 885 (1935).<br />
*H.R. Report No. 1502 (1935).<br />
*Federal Register Modernization Act, [https://www.govinfo.gov/content/pkg/CRPT-113hrpt515/pdf/CRPT-113hrpt515.pdf H.R. Rep. No. 113-515] (2014).<br />
*Federal Register Printing Savings Act of 2016, [https://www.govinfo.gov/content/pkg/CRPT-114hrpt841/pdf/CRPT-114hrpt841-pt1.pdf H.R. Rep. No. 114-841] (2016).<br />
*Federal Register Printing Savings Act of 2017, [https://www.govinfo.gov/content/pkg/CRPT-115srpt184/pdf/CRPT-115srpt184.pdf S. Rep. No. 115-184] (2017).<br />
*Federal Register Printing Savings Act of 2017, [https://www.govinfo.gov/content/pkg/CRPT-115hrpt128/pdf/CRPT-115hrpt128-pt1.pdf H.R. Rep. No. 115-128] (2017).<br />
<br />
===ACUS Recommendations===<br />
<br />
*2011-5 [https://www.acus.gov/sites/default/files/Recommendation-2011-5-Incorporation-by-Reference_0.pdf Incorporation by Reference].<br />
*2019-3 [https://www.acus.gov/sites/default/files/documents/2019-3%2C%20Public%20Availability%20of%20Agency%20Guidance%20Documents.pdf Public Availability of Agency Guidance Documents].<br />
*2020-1 [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-1%2C%20Rules%20on%20Rulemakings.pdf Rules on Rulemakings].<br />
*2021-3 [https://www.acus.gov/sites/default/files/documents/Early%20Input%20on%20Regulatory%20Alternatives%20FINAL.pdf Early Input on Regulatory Alternatives].<br />
*2021-7 [https://www.acus.gov/sites/default/files/documents/Recommendation%202021-7%20%28Inoperative%20Guidance%29.pdf Public Availability of Inoperative Guidance Documents].<br />
*2022-2 [https://www.acus.gov/sites/default/files/documents/Final%20Recommendation%20Improving%20Notice%20of%20Regulatory%20Changes.pdf Improving Notice of Regulatory Changes].<br />
<br />
===National Archives of the United States===<br />
<br />
*[https://www.archives.gov/files/federal-register/write/handbook/ddh.pdf Document Drafting Handbook] (Revision 1.2, Oct. 16, 2020).<br />
*[https://www.archives.gov/federal-register/tutorial/online-pdf.html The Federal Register: What It Is and How to Use It (GPO)].<br />
*[https://www.archives.gov/files/federal-register/write/handbook/ibr.pdf IBR Handbook] (2018).<br />
<br />
===Other Documents===<br />
<br />
*Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, and Orly Nobel, [https://www.acus.gov/sites/default/files/documents/Disclosure-of-Agency-Legal-Materials-Final-Report-5.30.23.pdf Disclosure of Agency Legal Materials] (Jun. 2, 2023) (report to the Admin. Conf. of the U.S.). <br />
*Emily S. Bremer, [https://www.acus.gov/sites/default/files/documents/Bremer%20Final%20IBR%20Article%20[January%202013].pdf Incorporation by Reference in an Open-Government Age] (Oct. 19, 2011) (report to ACUS).<br />
*Erwin Griswold, ''Government in Ignorance of the Law: A Plea for Better Publication of Executive Legislation'', 48 Harv. L. Rev. 198 (1934).<br />
*Richard J. McKinney, [https://www.llsdc.org/fr-cfr-research-guide A Research Guide to the Federal Register and the Code of Federal Regulations] (Law Librarians Soc’y of Wash., D.C., 2002).<br />
*Jonathan Manes, [https://georgetownlawjournal.org/articles/260/secret-law/pdf Secret Law], 106 Geo. L.J. 803 (2018).<br />
*Nina A. Mendelson, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1886&context=articles Private Control Over Access to Public Law: The Perplexing Federal Regulatory Use of Private Standards], 112 Mich. L. Rev. 737 (2014).<br />
*Note, ''The Federal Register and the Code of Federal Regulations—A Reappraisal'', 80 Harv. L. Rev. 439 (1966).<br />
*Peter L. Strauss, [https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1681&context=wmborj Private Standards Organizations and Public Law], 22 Wm. & Mary Bill Rts. J. 497 (2013).<br />
*John H. Wigmore, ''Federal Administrative Agencies: How to Locate Their Rules of Practice and Their Rulings with Special Reference to their Rules of Evidence'', 25 A.B.A. J. 25 (1939).<br />
<br />
==Statutory Provisions==<br />
<br />
Federal Register Act<br />
<br />
Title 44 U.S. Code <br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter15&edition=prelim Chapter 15—Federal Register and Code of Federal Regulations]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1501&num=0&edition=prelim § 1501. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1502&num=0&edition=prelim § 1502. Custody and printing of Federal documents; appointment of Director]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1503&num=0&edition=prelim § 1503. Filing documents with Office; notation of time; public inspection; transmission for printing]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1504&num=0&edition=prelim § 1504. “Federal Register”; printing; contents; distribution; price]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1505&num=0&edition=prelim § 1505. Documents to be published in Federal Register]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1506&num=0&edition=prelim § 1506. Administrative Committee of the Federal Register; establishment and composition; powers and duties]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1507&num=0&edition=prelim § 1507. Filing document as constructive notice; publication in Federal Register as presumption of validity; judicial notice; citation]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1508&num=0&edition=prelim § 1508. Publication in Federal Register as notice of hearing]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1509&num=0&edition=prelim § 1509. Costs of publication, etc.]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1510&num=0&edition=prelim § 1510. Code of Federal Regulations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section1511&num=0&edition=prelim § 1511. International agreements excluded from provisions of chapter]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Federal_Advisory_Committee_Act&diff=1649Federal Advisory Committee Act2023-08-12T20:55:23Z<p>MGluth: </p>
<hr />
<div>5 U.S.C. [http://uscode.house.gov/view.xhtml?path=/prelim@title5/title5a/node2&edition=prelim app.], enacted by [https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg770.pdf Pub. L. No. 92-463], 86 Stat. 770, Oct. 6, 1972. Amended by [https://www.congress.gov/105/plaws/publ153/PLAW-105publ153.pdf Pub. L. No. 105-153], § 1, 111 Stat. 2689, Dec. 17, 1997; [https://www.congress.gov/111/plaws/publ259/PLAW-111publ259.pdf Pub. L. No. 111-259], Title IV, § 410(a), 124 Stat. 2724, Oct. 7, 2010. <br />
<br />
'''Lead Agency:''' <br />
<br />
[https://www.gsa.gov/about-us/organization/office-of-governmentwide-policy/office-of-asset-and-transportation-management/committee-management-secretariat General Services Administration, Office of Asset and Transportation Management, Committee Management Secretariat]<br />
<br />
==Overview==<br />
The Federal Advisory Committee Act (FACA) regulates the formation and operation of advisory committees by federal agencies in the executive branch. “Advisory committee” is defined in [http://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title5a-node2-section3&num=0&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU1YS1ub2RlMi1zZWN0aW9uOQ%3D%3D%7C%7C%7C0%7Cfalse%7Cprelim section 3] to include any committee or similar group that is established by statute or organization plan, established or utilized by the President, or established or utilized by any agency in the interest of obtaining advice or recommendations for the President or one or more federal agencies or officers. Excepted from this definition are groups not wholly composed of full-time or permanent part-time federal officers or employees. In addition, the FACA also exempts advisory committees of the National Academy of Sciences, the National Academy of Public Administration, the Central Intelligence Agency, and the Federal Reserve System, any local civic group whose primary function is to render a public service with respect to a federal program, and any state or local committee established to advise state or local officials or agencies. Finally, some other statutes specifically exempt certain activities from the FACA. <br />
<br />
FACA requires in part that new advisory committees be established only after public notice and upon a determination that establishment is in the public interest ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section9&num=0&edition=prelim § 9(a)]); that each advisory committee has a clearly defined purpose and that its membership be fairly balanced in terms of the points of view represented and the functions to be performed ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section5&num=0&edition=prelim § 5]); that the status of and need for each committee be subject to periodic review (§§ [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section7&num=0&edition=prelim 7], [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section14&num=0&edition=prelim 14]); and that meetings of advisory committees be open to public observation, subject to the same exemptions as those provided in the [[Government in the Sunshine Act]] ([http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section10&num=0&edition=prelim § 10]).<br />
<br />
Section 7 places oversight and policy responsibility in the Administrator of the General Services Administration (GSA) and directs the creation of a [https://www.gsa.gov/policy-regulations/policy/federal-advisory-committee-act-faca-management-overview Committee Management Secretariat in GSA] to fulfill those duties. <br />
<br />
In any given year there are about 1,000 federal advisory committees. Of these, in 2011, 469 were not mandated by statute, a 41 percent decrease since 1993, when Executive Order 12838, [https://www.transportation.gov/bts/bts/sites/dot.gov/files/docs/Executive%20Order%2012838.pdf Termination and Limitation of Federal Advisory Committees], (Feb. 11, 1993) directed the elimination of at least one-third of all discretionary advisory committees. The Office of Management and Budget (OMB) issued [https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-A-135.pdf OMB Circular A-135] to implement this Executive Order.<br />
<br />
The breadth of the definition of “advisory committee” has provoked uncertainty and litigation. GSA regulations attempt to provide guidance in this regard. ''See'' 41 C.F.R. §§ [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6771c877f4d6434ee95a19ae222f9a6&mc=true&node=se41.3.102_63_125&rgn=div8 102-3.25], [https://www.ecfr.gov/cgi-bin/text-idx?SID=b6771c877f4d6434ee95a19ae222f9a6&mc=true&node=se41.3.102_63_140&rgn=div8 102-3.40]. The requirement for committees to be balanced in terms of their composition and the procedures applicable to “meetings” has also been the subject of litigation. Most of the litigation under FACA has arisen pursuant to the judicial review provisions of the [[Administrative Procedure Act|Administrative Procedure Act]]; it is an open question whether FACA itself creates a private cause of action for a violation of its terms. <br />
<br />
The statute itself prescribes no conflict-of-interest requirements for advisory committee members. However, [http://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter11&edition=prelim chapter 11 of title 18] of the U.S. Code, particularly [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section208&num=0&edition=prelim section 208], applies to federal employees generally, including the category of “special government employees.” Unless an advisory committee member is appointed as a representative of a particular interest, and is thus not considered a government employee, he or she is likely to be a special government employee, whether compensated. Section 208(b)(3) authorizes an official who appoints an advisory committee member to exempt a special government employee where the need for the individual’s services outweighs the potential for a conflict of interest. ''See generally'' [https://www.justice.gov/file/21621/download Advisory Committees—Food and Drug Administration—Conflicts of Interest], 2 Op. O.L.C. 151 (1978).<br />
<br />
Special government employees are subject to disclosure requirements. ''See'' [https://www.govinfo.gov/content/pkg/FR-1992-04-07/pdf/FR-1992-04-07.pdf Financial Disclosure, Qualified Trusts, and Certificates of Divestiture for Executive Branch Employees], 57 Fed. Reg. 11800 (Apr. 7, 1992).<br />
<br />
[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section219&num=0&edition=prelim Section 219(a)] of title 18 of the U.S. Code makes it a criminal offense for a public official to be or to act as an agent of a foreign principal required to register under the Foreign Agents Registration Act of 1938. The Department of Justice has concluded that members of federal advisory committees governed by the FACA come within the definition of “public official.” [https://www.justice.gov/file/23306/download Applicability of 18 U.S.C. § 219 to Members of Federal Advisory Committees], 15 Op. O.L.C. 65 (1991). Section 219(b) allows the head of an agency to exempt from section 219(a) those individuals who serve on advisory committees as “special government employees” but not those who serve as representatives. In addition, the Department took the position that the Emoluments Clause of the U.S. Constitution, [https://www.archives.gov/founding-docs/constitution-transcript#toc-section-9- Article 1, § 9, cl. 8], prohibits an individual who is an agent of a foreign government from serving on an advisory committee absent specific congressional consent. The Department concluded that Congress has not consented to such service by enacting FACA.<br />
<br />
==Legislative History==<br />
Congress considered legislation to establish minimum standards for the organization and operation of federal advisory committees intermittently since the mid-1950s. After oversight hearings in the 91st Congress, legislation was introduced in both houses in the 92nd Congress, and both the Senate Committee on Governmental Affairs and the House Committee on Government Operations held hearings. In April 1972, the House Committee on Government Operations reported out , the Federal Advisory Committee Standards Act (H.R. 4383). H.R. Rep. No. 92-1017 (1972). The House passed the legislation on May 9, 1972. After previously considering three separate bills, the Senate Committee on Governmental Affairs reported a clean bill, FACA (S. 3529), on September 7, 1972. S. Rep. No. 92-1098 (1972). The Senate approved this bill on September 12, 1972 and substituted its text for that in the House-passed bill. The relatively minor differences between the two bills were resolved in a Conference Report (H.R. Rep. No. 92-1403 (1972)), which the Senate adopted on September 20, 1972. FACA became effective on January 4, 1973.<br />
<br />
In 1976, the Congress applied to advisory committees the grounds for closure of meetings found in the [[Government in the Sunshine Act]] (5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552b&num=0&edition=prelim § 552b], [https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg1241.pdf Pub. L. No. 94-409]).<br />
<br />
On November 9, 1997, Representative Steve Horn, Chair of the House Subcommittee on Government Management, Information, and Technology, introducedthe Federal Advisory Committee Act Amendments of 1997 [https://www.congress.gov/105/bills/hr2977/BILLS-105hr2977ih.pdf H.R. 2977]). The proposed legislation sought to clarify public disclosure requirements applicable to the National Academy of Sciences and the National Academy of Public Administration and to overrule legislatively the decision of ''Animal Legal Defense Fund v. Shalala'', 104 F.3d 424 (D.C. Cir. 1997). The bill was marked with few revisions and passed the same day. Cong. Rec. H 10578. On November 13, 1997, the Senate introduced and passed H.R. 2977 with no revisions. Cong. Rec. S 12515. The Federal Advisory Committee Act Amendments of 1997 became [https://www.congress.gov/105/plaws/publ153/PLAW-105publ153.pdf Pub. L. No. 105-153] on December 17, 1997.<br />
<br />
Section 410 of the Intelligence Authorization Act for Fiscal Year 2010 ([https://www.congress.gov/111/plaws/publ259/PLAW-111publ259.pdf Pub. L. No. 111-259]) added the Director of National Intelligence to the list of agencies exempted from compliance with the FACA.<br />
<br />
===Source Note===<br />
The relevant legislative history materials of the original Act are collected in ''Federal Advisory Committee Act (Public Law 92-463), Source Book—Legislative History, Texts, and Other Documents'' (1978), prepared for the Senate Committee on Governmental Affairs.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Cong. Research Serv., ''Federal Advisory Committee Act (Pub. L. No. 92-463), Source Book – Legislative History, Texts and Other Documents'' (1978).<br />
*''Hearings on Bills to Amend the Federal Advisory Committee Act, Pub. L. No. 92-463, 86 Stat. 770 (1972),'' Before Subcomm. on Reports, Accounting, and Mgmt. of the S. Comm. on Gov’tal Affairs, 94th Cong. (1976).<br />
*''Oversight of the Federal Advisory Committee Act'', Hearing Before S. Comm. on Gov’tal Affairs, , 98th Cong. (1984).<br />
*''Federal Advisory Committee Act and the President’s AIDS Commission'', Hearing Before the S. Comm. on Gov’tal Affairs, 100th Cong. (1987).<br />
*''Department of Defense Strategic Defense Initiative Organization Compliance with the Federal Advisory Committee Act'', Hearing before S. Comm. on Gov’tal Affairs, 100th Cong. (1988).<br />
*''Federal Advisory Committee Amendments of 1988'', Hearing Before S. Comm. on Gov’tal Affairs, 100th Cong. (1988).<br />
*''Federal Advisory Committee Act Amendments of 1989'', Hearing Before S. Comm. on Gov’tal Affairs, 101st Cong. (1989).<br />
*Federal Advisory Committee Act Amendments of 1992, S. Rep. No. 102-281 (1992).<br />
*[https://www.govinfo.gov/content/pkg/CHRG-105hhrg95565/pdf/CHRG-105hhrg95565.pdf The Federal Advisory Committee Act], Hearing Before the Subcomm. on Gov’t Mgmt., Info., and Techn. of H. Comm. on Gov’t Reform and Oversight Committee, 105th Cong. (1997).<br />
*Federal Advisory Committee Act Amendments of 2015, [https://www.govinfo.gov/content/pkg/CRPT-114hrpt386/pdf/CRPT-114hrpt386-pt1.pdf H.R. Rep. No. 114–386] (2016).<br />
*Federal Advisory Committee Act Amendments of 2017, [https://www.govinfo.gov/content/pkg/CRPT-115srpt217/pdf/CRPT-115srpt217.pdf S. Rep. No. 115-217] (2018).<br />
</div><br />
<br />
===Executive Orders and OMB Documents===<br />
<br />
*Executive Order 12838, [https://www.transportation.gov/bts/bts/sites/dot.gov/files/docs/Executive%20Order%2012838.pdf Termination and Limitation of Federal Advisory Committees], 58 Fed. Reg. 8207 (Feb. 10, 1993).<br />
*[https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-A-135.pdf Circular A-135], Management of Federal Advisory Committees, 59 Fed. Reg. 53856 (Oct. 26, 1994).<br />
*[https://www.govinfo.gov/content/pkg/FR-2010-06-23/pdf/2010-15414.pdf Lobbyists on Agency Boards and Commissions - Memorandum for the Heads of Executive Departments and Agencies], 75 Fed. Reg. 35955 (June 23, 2010)<br />
*OMB Memorandum M-19-22, [https://www.whitehouse.gov/wp-content/uploads/2019/07/M-19-22.pdf Evaluating and Improving the Utility of Federal Advisory Committees] (July 5, 2019).<br />
*Executive Order 13875, [https://www.govinfo.gov/content/pkg/FR-2019-06-19/pdf/2019-13175.pdf Evaluating and Improving the Utility of Federal Advisory Committees], 84 Fed. Reg. 28711 (June 14, 2019).<br />
*Executive Order 14049, [https://www.govinfo.gov/content/pkg/FR-2021-10-05/pdf/2021-21908.pdf Continuance or Reestablishment of Certain Federal Advisory Committees and Amendments to Other Executive Orders], 86 Fed. Reg. 55,465 (Oct. 4, 2021).<br />
<br />
===ACUS Recommendations & Resources===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*80-3 [https://www.acus.gov/sites/default/files/documents/80-3-ss.pdf Interpretation and Implementation of the Federal Advisory Committee Act]<br />
*82-4 [https://www.acus.gov/sites/default/files/documents/82-4.pdf Procedures for Negotiating Proposed Regulations]<br />
*85-5 [https://www.acus.gov/sites/default/files/documents/85-5.pdf Procedures for Negotiating Proposed Regulations]<br />
*89-3 [https://www.acus.gov/sites/default/files/documents/89-3.pdf Conflict-of-Interest Requirements for Federal Advisory Committees]<br />
*2011-7 [https://www.acus.gov/sites/default/files/documents/Recommendation-2011-7-Federal-Advisory-Committee-Act.pdf The Federal Advisory Committee Act—Issues and Proposed Reforms]<br />
*2017-2 [https://www.acus.gov/sites/default/files/documents/Recommendation%202017-2_Negotiated%20Rulemaking.pdf Negotiated Rulemaking and Other Options for Public Engagement]<br />
*IIB-019 [https://www.acus.gov/sites/default/files/documents/19 FACA Basics.pdf Federal Advisory Committee Act Basics] (2022)<br />
</div><br />
<br />
===Other Government Documents===<br />
<br />
*[https://www.facadatabase.gov/rpt/printedannualreports.asp Annual Report of the President on Federal Advisory Committees] (1972-1998). The annual report was discontinued in favor of providing the information [https://www.facadatabase.gov/rpt/printedannualreports.asp online] for the period 1997-2012.<br />
*Gen. Accounting Office, T-GGD-98-163, [https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-98-163/pdf/GAOREPORTS-T-GGD-98-163.pdf Federal Advisory Committee Act: Advisory Committee Process Appears to Be Working, but Some Concerns Exist] (1998).<br />
*Gen. Accounting Office, GAO-04-328, [https://www.gao.gov/new.items/d04328.pdf Federal Advisory Committees: Additional Guidance Could Help Agencies Better Ensure Independence and Balance] (2004).<br />
*Gov’t Accountability Office, GAO-08-611T, [https://www.gao.gov/new.items/d08611t.pdf Federal Advisory Committee Act: Issues Related to the Independence and Balance of Advisory Committees] (2008).<br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Litigation Under the Federal Open Government Laws: The Privacy Act, The Freedom of Information Act, The Federal Advisory Committee Act, The Government in the Sunshine Act'' (Elec. Privacy Info. Ctr., various eds. most recent 2010).<br />
*Jay S. Bybee, ''Advising the President: Separation of Powers and the Federal Advisory Committee Act'', 104 Yale L.J. 51 (1994).<br />
*Reeve T. Bull, [https://www.acus.gov/sites/default/files/documents/COCG-Reeve-Bull-Draft-FACA-Report-9-12-11.pdf The Federal Advisory Committee Act: Issues and Proposed Reforms] (Sept. 12, 2011) (report to ACUS).<br />
*Michael H. Cardozo, ''The Federal Advisory Committee Act in Operation'', 33 Admin. L. Rev. 1 (1981).<br />
*Jennifer E. Chung, ''Federal Advisory Committee Act'', 65 Geo. Wash. L. Rev. 786 (1997).<br />
*Steven P. Croley, ''Practical Guidance on the Applicability of the Federal Advisory Committee Act'', 10 Admin. L.J. 111 (1996).<br />
*Steven P. Croley & William F. Funk, [https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1453&context=yjreg The Federal Advisory Committee Act and Good Government], 14 Yale J. on Reg. 451 (1997).<br />
*Brian D. Feinstein & Daniel J. Hemel, ''[https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/05/Feinstein-Hemel_Outside-Advisers-Inside-Agencies.pdf Outside Advisers Inside Agencies]'', 108 Geo. L.J. 1139 (2020).<br />
*David Marblestone, ''The Coverage of the Federal Advisory Committee Act'', 35 Fed. B.J. 119 (1976).<br />
*Megan Colleen McHugh, ''The Affordable Care Act’s Federal Advisory Committees'', 8 Wm. & Mary Pol’y Rev. 1 (2016).<br />
*Brian C. Murphy, ''Implementation of the Federal Advisory Committee Act: An Overview'', 9 Gov’t Publications Rev. 3 (1982).<br />
*Mary Kathryn Palladino, ''Ensuring Coverage, Balance, Openness, and Ethical Conduct for Advisory Committee Members Under the Federal Advisory Committee Act'', 5 Admin. L.J. 231 (1991).<br />
*Keith W. Rizzardi, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2670742 Why Don't FACA Committees Like Facebook? Social Media, Public Input, and the Federal Advisory Committee Act], 9 Charleston L. Rev. 75 (2014).<br />
*Amanda K. Rudat, [https://www.ecologylawquarterly.org/wp-content/uploads/2022/03/48.2-Rudat_Internet.pdf Amending the Federal Advisory Committee Act to Protect Independent Scientific Expertise], 48 Ecology L.Q. 597 (2021).<br />
*Michael Sant’Ambrogio & Glen Staszewski, [https://www.acus.gov/sites/default/files/documents/Public%20Engagement%20in%20Rulemaking%20Final%20Report.pdf Public Engagement with Agency Rulemaking] (Nov. 19, 2018) (report to ACUS).<br />
Daniel E. Waters, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1124&context=mlr The Justiciability of Fair Balance Under the Federal Advisory Committee Act: Toward a Deliberative Process Approach], 110 Mich. L. Rev. 677 (2012).<br />
*Richard A. Wegman, ''The Utilization and Management of Federal Advisory Committees'' (Kettering Found. 1983).<br />
</div><br />
<br />
===Agency Regulations===<br />
General Services Administration, Federal Advisory Committee Management Regulations ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c85b851166585d434478066daac14676&mc=true&node=pt41.3.102_63&rgn=div5 41 C.F.R. Part 102-3])<br />
<br />
==Statutory Provisions and Regulations==<br />
Federal Advisory Committee Act<br />
<br />
Title 5 U.S.C. app.<br />
<br />
[http://uscode.house.gov/view.xhtml?path=/prelim@title5/title5a/node2&edition=prelim Appendix—Federal Advisory Committee Act]<br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section1&num=0&edition=prelim § 1. Short title]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section2&num=0&edition=prelim § 2. Findings and purpose]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section3&num=0&edition=prelim § 3. Definitions]<br />
*[http://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title5a-node2-section4&num=0&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU1YS1ub2RlMi1zZWN0aW9uMw%3D%3D%7C%7C%7C0%7Cfalse%7Cprelim § 4. Applicability; restrictions]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section5&num=0&edition=prelim § 5. Responsibilities of Congressional committees; review; guidelines]<br />
*[http://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title5a-node2-section6&num=0&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU1YS1ub2RlMi1zZWN0aW9uNQ%3D%3D%7C%7C%7C0%7Cfalse%7Cprelim § 6. Responsibilities of the President; report to Congress; annual report to Congress; exclusion]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section7&num=0&edition=prelim § 7. Responsibilities of the Administrator of General Services; Committee Management Secretariat, establishment; review; recommendations to President and Congress; agency cooperation; performance guidelines; uniform pay guidelines; travel expenses; expense recommendations]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section8&num=0&edition=prelim § 8. Responsibilities of agency heads; Advisory Committee Management Officer, designation]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section9&num=0&edition=prelim § 9. Establishment and purpose of advisory committees; publication in Federal Register; charter: filing, contents, copy]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section10&num=0&edition=prelim § 10. Advisory committee procedures; meetings; notice, publication in Federal Register; regulations; minutes; certification; annual report; Federal officer or employee, attendance]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section11&num=0&edition=prelim § 11. Availability of transcripts; "agency proceeding"]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section12&num=0&edition=prelim § 12. Fiscal and administrative provisions; record-keeping; audit; agency support services]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section13&num=0&edition=prelim § 13. Responsibilities of Library of Congress; reports and background papers; depository]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section14&num=0&edition=prelim § 14. Termination of advisory committees; renewal; continuation]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node2-section15&num=0&edition=prelim § 15. Requirements relating to the National Academy of Sciences and the National Academy of Public Administration]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=Equal_Access_to_Justice_Act&diff=1648Equal Access to Justice Act2023-08-12T20:49:20Z<p>MGluth: </p>
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<div>5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section504&num=0&edition=prelim 504, 504 note] (2012) and 28 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2412&num=0&edition=prelim 2412, 2412 note] (2012); enacted as title II of the Small Business Export Expansion Act of 1980, [https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg2321.pdf Pub. L. No. 96-481], 94 Stat. 2325, Oct. 21, 1980; amended by [https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg324.pdf Pub. L. No. 97-248], title II, § 292, 96 Stat. 574, Sept. 3, 1982; by [https://www.govinfo.gov/content/pkg/STATUTE-99/pdf/STATUTE-99-Pg183.pdf Pub. L. No. 99-80], 99 Stat. 183, Aug. 5, 1985; by [https://www.govinfo.gov/content/pkg/STATUTE-100/pdf/STATUTE-100-Pg1874.pdf Pub. L. No. 99-509], title VI, § 6103(c), 100 Stat. 1948, Oct. 21, 1986; by [https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg3342.pdf Pub. L. No. 100-647], title VI, § 6239(b), 102 Stat. 3746, Nov. 10, 1988; by [https://www.govinfo.gov/content/pkg/STATUTE-106/pdf/STATUTE-106-Pg4506.pdf Pub. L. No. 102-572], § 506, 106 Stat. 4506, 4513, Oct. 29, 1992; by [https://www.govinfo.gov/content/pkg/STATUTE-107/pdf/STATUTE-107-Pg1488.pdf Pub. L. No. 103-141], 107 Stat. 1489, Nov. 16, 1993; by [https://www.govinfo.gov/content/pkg/PLAW-104publ66/pdf/PLAW-104publ66.pdf Pub. L. 104-66], title I, Sec. 1091(b), 109 Stat. 722, Dec. 21, 1995; by [https://www.govinfo.gov/content/pkg/PLAW-104publ121/pdf/PLAW-104publ121.pdf Pub. L. No. 104-121], 110 Stat. 862, Mar. 29, 1996; by [https://www.govinfo.gov/content/pkg/PLAW-111publ350/pdf/PLAW-111publ350.pdf Pub. L. No. 111-350], § 5(a)(1), 124 Stat. 3841, Jan. 4, 2011; by [https://www.congress.gov/116/plaws/publ9/PLAW-116publ9.pdf Pub. L. No. 116-9], § 4201, 133 Stat. 580, Mar. 12, 2019.<br />
<br />
'''Lead Agencies:''' <br />
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*[https://www.acus.gov/ ACUS] was given reporting responsibility for Equal Access to Justice Act administrative proceedings. Although ACUS was not funded from 1996-2010, since its reopening it has begun reporting again. See the most recent ACUS report from the Office of the Chairman here: [https://www.acus.gov/eaja/reports Equal Access to Justice Act Awards Report to Congress].<br />
*[https://advocacy.sba.gov/ Office of the Chief Counsel for Advocacy], Small Business Administration.<br />
*The [http://www.uscourts.gov/topics/administrative-office-us-courts Administrative Office of the United States Courts] was originally given reporting responsibility for judicial proceedings. The Attorney General was substituted in 1992, but this provision (28 U.S.C. § 2412(d)(5)) was deleted in 1995. The ACUS report to Congress contains data on court decisions.<br />
<br />
==Overview==<br />
===Eligibility and Coverage=== <br />
The Equal Access to Justice Act (EAJA) provides that certain parties who prevail over the federal government in covered litigation are entitled to an award of attorney's fees and other expenses unless the government can demonstrate that its position was substantially justified or that special circumstances would make an award unjust. The parties eligible to receive such awards include individuals whose net worth (at the time the adjudication was initiated) is not more than $2 million; businesses, organizations, associations, or units of local government with a net worth of no more than $7 million and with no more than 500 employees; and tax-exempt organizations and agricultural cooperatives with no more than 500 employees, regardless of net worth. This must be shown by adequate affidavits. ''See'' [https://www.uscfc.uscourts.gov/sites/default/files/opinions/CMILLER.AlGhanim.pdf Al Ghanim Combined Grp. Co. v. United States], 67 Fed. Cl. 494 (Fed. Cl. 2005); ''see also'' ''Tri-State Steel Constr. Co. v. Herman'', 164 F.3d 973 (6th Cir. 1999) (corporate subsidiary may qualify for recovery under the EAJA, even if it is owned by a parent far too substantial to fit below the net worth limitations). The 1996 Amendments also allow “a small entity” (as defined in the [[Regulatory Flexibility Act]], 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section601&num=0&edition=prelim 601(6))] to utilize the new “excessive demand” avenue of relief (see discussion below in “showing required”).<br />
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EAJA covers two groups of proceedings: (1) adversary administrative adjudications, which are defined to include formal hearing proceedings under 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section554&num=0&edition=prelim 554] (other than licensing and ratemaking proceedings, but including license suspension or revocation proceedings) in which the agency takes a position as a party at the proceeding, government contract appeals adjudicated under the [[Contract Disputes Act]] of 1978 (41 U.S.C. [http://uscode.house.gov/view.xhtml?path=/prelim@title41/subtitle3/chapter71&edition=prelim §§ 7101– 7109]), administrative civil penalty proceedings under the Program Fraud Civil Remedies Act (31 U.S.C. [http://uscode.house.gov/view.xhtml?path=/prelim@title31/subtitle3/chapter38&edition=prelim Chapter 38]), and hearings under the Religious Freedom Restoration Act of 1993 ([http://uscode.house.gov/statutes/pl/103/141.pdf Pub. L. No. 103-141]); and (2) civil court actions other than tort cases (not including tax cases, which are covered by a separate attorney's fee provision). EAJA also authorizes the award of attorney's fees against the United States in those limited situations in which fees could be awarded against any other party under existing common law and statutory provisions, unless a statute expressly prohibits such an award.<br />
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Determining what constitutes an administrative proceeding “under” § 554 has created some controversy, particularly with respect to deportation and other administrative immigration proceedings, which are conducted with procedures equivalent to those required by § 554, even though they are expressly exempted from the [[Administrative Procedure Act]]’s requirements. The Supreme Court resolved this issue, ruling that proceedings must be “subject to” § 554 to fall within EAJA’s coverage (and thus that administrative deportation proceedings are not covered). [https://cdn.loc.gov/service/ll/usrep/usrep502/usrep502129/usrep502129.pdf Ardestani v. INS], 502 U.S. 129 (1991). In other contexts, many courts had already reached a similar conclusion. ''See, e.g.'', ''Friends of the Earth v. Reilly'', 966 F.2d 690 (D.C. Cir 1992) (EPA proceeding leading to withdrawal of authorization for state hazardous waste program authorization not an adversary adjudication where formal hearing was provided voluntarily under agency regulations rather than required by statute); ''Dart v. United States'', 961 F.2d 284 (D.C. Cir. 1992) (Export Administration Act proceedings not covered by EAJA because exempt from § 554 of APA); ''St. Louis Fuel & Supply Co. v. FERC'', 890 F.2d 446 (D.C. Cir. 1989) (Department of Energy proceedings not covered by EAJA where formal hearing was provided voluntarily); ''Haire v. United States'', 869 F.2d 531 (9th Cir. 1989) (Department of Commerce enforcement proceedings under the Export Administration Act not covered by EAJA because specifically exempted from § 554 by statute); ''Owens v. Brock'', 860 F.2d 1363 (6th Cir. 1988) (Department of Labor proceedings under the Federal Employees Compensation Act not covered by EAJA); ''Olsen v. U.S. Dep’t of Commerce, Census Bureau'', 735 F.2d 558 (Fed. Cir. 1984) (Merit Systems Protection Board proceeding concerning employee tenure not covered by EAJA); ''Smedberg Machine & Tool, Inc. v. Donovan'', 730 F.2d 1089 (7th Cir. 1984) (labor certification review at Department of Labor not covered by EAJA). Other courts have found particular adjudications to meet the ''Ardestani'' test. [http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2008/D09-08/C:07-3406:J:Ripple:aut:T:op:N:0:S:0 Five Points Rd. Joint Venture v. Johanns], 542 F.3d 1121 (7th Cir. 2008) (adjudications conducted by hearing officers in the USDA’s National Appeals Division are (1) adjudications required by statute, (2) on the record, (3) with an opportunity for an agency hearing, and are thus covered by the EAJA under the ''Ardestani'' test); [http://media.ca8.uscourts.gov/opndir/97/07/963285P.pdf Lane v. USDA], 120 F.3d 106 (8th Cir. 1997) (same), and ''Collard v. U.S. Dep’t of Interior'', 154 F.3d 933 (9th Cir. 1998) (although statute governing extinguishing of mining patent did not expressly call for formal APA adjudication, an APA hearing was constitutionally required; thus under [https://cdn.loc.gov/service/ll/usrep/usrep339/usrep339033/usrep339033.pdf Wong Yang Sung v. McGrath], 339 U.S. 33 (1950), the hearing was governed by § 554 for the APA, making plaintiffs eligible for EAJA reimbursement).<br />
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The Supreme Court has significantly narrowed the definition of “prevailing party” in federal fee-shifting statutes. In [https://cdn.loc.gov/service/ll/usrep/usrep532/usrep532598/usrep532598.pdf Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources], 532 U.S. 598, 600 (2001), the Court held that a “party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct” is not a “prevailing party” under federal statutes allowing courts to award attorney's fees and costs to the “prevailing party.” Rather, in rejecting the “catalyst theory,” the Court held that “prevailing party” status requires a “material alteration of the parties’ legal relationship” and a “judicial imprimatur” on the change. ''Id''. at 604–05. Ten circuit courts have found that ''Buckhannon'' applies to the EAJA. ''See'' [https://www.ca10.uscourts.gov/sites/ca10/files/opinions/01018900467.pdf Iqbal v. Holder], 693 F.3d 1189, 1193–94 (10th Cir. 2012); [http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2012/D10-11/C:11-3687:J:Posner:aut:T:fnOp:N:1011772:S:0 Jeroski v. Fed. Mine Safety & Review Comm’n], 697 F.3d 651, 654–55 (7th Cir. 2012); [http://media.ca1.uscourts.gov/pdf.opinions/07-1588P1-01A.pdf Aronov v. Napolitano], 562 F.3d 84, 89-93 (1st Cir. 2009); [http://www.ca5.uscourts.gov/opinions/unpub/08/08-20034.1.wpd.pdf Othman v. Chertoff], 309 Fed. Appx. 792, 794 (5th Cir. 2008); [http://media.ca11.uscourts.gov/opinions/pub/files/200514047.pdf Morillo-Cedron v. Dist. Dir. for the U.S. Citizenship & Immigration Servs.], 452 F.3d 1254, 1258 (11th Cir. 2006); Goldstein v. Moatz, 445 F.3d 747, 751 (4th Cir. 2006); [http://www.opn.ca6.uscourts.gov/opinions.pdf/06a0139p-06.pdf Marshall v. Comm’r of Soc. Sec.], 444 F.3d 837, 840 (6th Cir. 2006); ''Vacchio v. Ashcroft'', 404 F.3d 663, 673 (2d Cir. 2005); [https://www.cadc.uscourts.gov/internet/opinions.nsf/099747A5241AD08A85256F82005F6CBA/$file/02-5169a.pdf Thomas v. Nat’l Sci. Found.], 330 F.3d 486, 492–93 (D.C. Cir. 2003); ''Brickwood Contractors, Inc. v. United States'', 288 F.3d 1371, 1379–83 (Fed. Cir. 2002); ''Perez-Arellano v. Smith'', 279 F.3d 791, 795 (9th Cir. 2002). <br />
<br />
===Applicability=== <br />
EAJA, as amended in 1985, applies to all covered cases and proceedings pending on, or commenced on or after, August 5, 1985. The original Act, which expired under a sunset provision on September 30, 1984, applied to cases and proceedings commenced between October 1, 1981, and September 30, 1984, as well as those pending on October 1, 1981. The 1996 Amendments are applicable to civil actions and adversary adjudications commenced on or after March 29, 1996.<br />
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In 2002, the Supreme Court resolved the question of the possible overlap of the EAJA and the Social Security Act’s attorney's fee provisions. [https://cdn.loc.gov/service/ll/usrep/usrep535/usrep535789/usrep535789.pdf Gisbrecht v. Barnhart], 535 U.S. 789 (2002), held that EAJA fees for claimants prevailing in court supplement the fees payable to attorneys out of the claimants’ past-due benefits under § 406(b) of the Social Security Act.<br />
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===Showing Required=== <br />
A party seeking an award of fees must submit an application to the court or agency adjudicative officer within 30 days of the final judgment (for civil actions) or final disposition (for administrative adjudications) of the underlying proceeding. The application must demonstrate the party’s eligibility and include itemized statements from attorneys and expert witnesses for whose services an award is sought. The party must also allege that the position of the United States was not substantially justified but need not provide supporting evidence; based on EAJA’s legislative history, the courts have concluded that the federal government bears the burden of showing that its position was substantially justified.<br />
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The “position” that must be substantially justified under EAJA includes both the government’s litigation position and the underlying government action or failure to act leading up to the litigation. The determination of whether the government’s position was substantially justified is to be made on the record of the proceeding; discovery on that issue is not permitted. To show that its position was substantially justified, the government must demonstrate that it had a reasonable basis in law and fact. [https://cdn.loc.gov/service/ll/usrep/usrep487/usrep487552/usrep487552.pdf Pierce v. Underwood], 487 U.S. 552 (1988); ''see also Meinhold v. U.S. Dep’t of Def.'', 123 F.3d 1275, 1277 (9th Cir. 1997), modified by 131 F.3d 842 (1997) (providing that the government bears the burden to show that its position was substantially justified). The 1996 amendments also allow a party to collect even if it does not prevail in litigation if the government’s demand is found to be excessive or is unreasonable when compared with the ultimate decision (unless the party has acted willfully or in bad faith or special circumstances make an award unjust). The D.C. Circuit granted a partial fee award under this provision in [https://www.cadc.uscourts.gov/internet/opinions.nsf/5ED8C52E2A094FE685256F82006D2363/$file/02-1379b.pdf American Wrecking Corp. v. Secretary of Labor], 364 F.3d 321 (D.C. Cir. 2004), in a case in which the agency had sought $126,000 in penalties but was allowed to assess only $7,000.<br />
<br />
[http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2000/D01-11/C:99-1948:J:_:aut:T:op:N:0:S:0 United States v. Hallmark Construction Co.], 200 F.3d 1076, 1080 (7th Cir. 2000) outlined a three-part test for determining whether an agency’s position was substantially justified. The agency’s decision is substantially justified if “its position was grounded in (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced” (internal quotation omitted). The test was applied in the EPA’s favor in [http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2005/D10-21/C:05-1125:J:_:aut:T:op:N:0:S:0 Bricks, Inc. v. EPA], 426 F.3d 918 (7th Cir. 2005). <br />
<br />
However, even if the government quickly improved its policies in response to the initiation of litigation, its pre-litigation conduct can be sufficiently “unreasonable” to render “the entire Government position not ‘substantially justified.’” ''Healey v. Leavitt'', 485 F.3d 63, 68 (2d Cir. 2007).<br />
<br />
===Amount of Awards=== <br />
Before 1996, EAJA allowed the prevailing party to be awarded attorney's fees and expenses, including expert witness fees and the cost of studies or tests necessary for case preparation. Under the 1996 EAJA, attorney fee's awards were increased from $75 an hour to $125 an hour. This is the awarded rate unless special factors, such as cost-of-living increases or a shortage of qualified attorneys, justify a higher rate. For administrative proceedings, agencies must make any determination that special factors justify a higher rate by regulation. Some agencies have done so. Higher rates may be authorized on a case-by-case basis in court proceedings, and many courts have used the provision to award higher rates based on cost-of-living increases. ''See Kerin v. U.S.P.S.'', 218 F.3d 185 (2d Cir. 2000); ''Dewalt v. Sullivan'', 963 F.2d 27 (3d Cir. 1992); ''Russell v. Sullivan'', 930 F.2d 1443 (9th Cir. 1991); ''Phillips v. GSA'', 924 F.2d 1577 (Fed. Cir. 1991); ''Johnson v. Sullivan'', 919 F.2d 503 (8th Cir. 1990); ''Trichilo v. Sec’y of HHS'', 823 F.2d 702 (2d Cir. 1987); ''Allen v. Bowen'', 821 F.2d 963 (3d Cir. 1987); ''Sierra Club v. Sec’y of the Army'', 820 F.2d 513 (1st Cir. 1987); ''Hirschey v. FERC'', 777 F.2d 1 (D.C. Cir. 1985); ''Greenidge v. Barnhart'', 2005 WL 357318 (N.D.N.Y. 2005); ''Former Emps. of Tyco Elecs. Fiber Optics Div. v. U.S. Dep’t of Labor'', 350 F. Supp. 2d 1075, 1093 (Ct. Int’l Trade 2004); ''United States v. Eleven Vehicles'', 937 F. Supp. 1143 (E.D. Pa. 1996); ''Kimball v. Shalala'', 826 F. Supp. 573 (D. Me. 1993). ''But see Sorenson v. Milk'', 239 F.3d 1140 (9th Cir. 2001) (cost-of-living increases must be determined based on the rate when the fee is earned, not when judgment is entered); ''Masonry Masters, Inc. v. Nelson'', 105 F.3d 708 (D.C. Cir. 1997) (cost-of-living adjustments must be calculated separately for each year services are performed); ''May v. Sullivan'', 936 F.2d 176 (4th Cir. 1991) (affirming denial of upward adjustment); ''Spencer v. Apfel'', 1998 WL 264843 (E.D. La. 1998) (cost-of-living adjustment not automatic).<br />
<br />
Rate increases based on other special factors have been less frequent. The Supreme Court has ruled that traditional attorney's fee calculation principles, such as lodestar rates or risk multipliers, cannot be used to award rates above the statutory maximum, and that the exception for “limited availability of qualified attorneys” refers to attorneys with specialized knowledge or skills. ''Pierce v. Underwood'', 487 U.S. 552 (1988). Lower courts have allowed rates above the pre-1996 rate of $75 per hour for specialists in areas such as environmental law, ''Nat’l Wildlife Fed’n v. FERC'', 870 F.2d 542 (9th Cir. 1989), ''Portland Audubon Soc’y v. Lujan'', 865 F. Supp. 1464 (D. Or 1994); social security law, ''Pirus v. Bowen'', 869 F.2d 536 (9th Cir. 1989) (''but see Raines v. Shalala'', 44 F.3d 1355 (7th Cir. 1995) (holding that “the area of social security law cannot in itself be considered such a specialized area of law practice as to warrant , as a general rule, payment in excess of the $ 75.00 rate.” and citing the Eighth and Tenth Circuits for support, ''Stockton v. Shalala'', 36 F.3d 49, 50 (8th Cir. 1994), ''Chynoweth v. Sullivan'', 920 F.2d 648, 650 (10th Cir. 1990)); tax law, ''Howards’ Yellow Cabs, Inc. v. United States'', 1998 WL 682485 (W.D.N.C. 1998), and immigration law. Judge Posner has opined that “immigration lawyers who bring relevant expertise to a case, such as knowledge of foreign cultures or of particular, esoteric nooks and crannies of immigration law, in which such expertise is needed to give the alien a fair shot at prevailing” may “pierce” the statutory cap, but immigration lawyers are not “ipso facto entitled to fees above the statutory ceiling.” ''Muhur v. Ashcroft'', 382 F.3d 653, 656 (7th Cir. 2004); ''see also'' [http://cdn.ca9.uscourts.gov/datastore/opinions/2009/06/09/05-56759o.pdf Nadarajah v. Holder], 569 F.3d 906, 914 (9th Cir. 2009) (awarding enhanced rate to counsel because the case “raised unique issues of statutory and constitutional immigration law in the detention context, . . . required knowledge of a large body of historical material concerning immigration detention, detailed treatment of new and relatively obscure statutory provisions governing the detention of people alleged to be threats to national security, and familiarity with the growing body of modern case law concerning prolonged detention in the immigration context.”); ''Nadler v. INS'', 737 F. Supp. 658 (D.D.C. 1989). ''But see Perales v. Casillas'', 950 F.2d 1066, 1078 (5th Cir. 1992) (rejecting expertise in immigration law as a “special factor” under EAJA); ''Singh v. INS'', 1998 WL 101742 (N.D. Cal. 1998) (immigration law not recognized as a specialty warranting adjustment). The Second Circuit also recently narrowly construed the concept of “specialized expertise,” refusing to grant it to lawyers specializing in the practice of Medicare law. ''Healey v. Leavitt'', 485 F.3d 63 (2d Cir. 2007). The court stated: “[A] case requires ‘specialized expertise’ within the meaning of the EAJA only when it requires some knowledge or skill that cannot be obtained by a competent practicing attorney through routine research or legal experience.” ''Id.'' at 70. Indeed, the ''Healey'' court also affirmed the district court’s decision to reduce the fee award “given the considerable amount of time plaintiffs devoted to [an] unsuccessful [related] claim.” ''Id.'' at 72. In adopting a similar if not more cramped construction of “specialized expertise,” the Fifth Circuit has held that “nonlegal or technical abilities” are necessary conditions of “special factor” enhancement. ''Estate of Cervin v. Comm’r of Internal Revenue'', 200 F.3d 351, 355 (5th Cir. 2000). For a rather comprehensive synopsis of the foregoing inter-circuit discordance concerning specialized expertise, ''see generally Former Emps. of BMC Software, Inc. v. Sec’y of Labor'', 519 F. Supp. 2d 1291, 1347–52 (Ct. Int’l Trade 2007).<br />
<br />
The Supreme Court has also ruled that attorney's fee awards should ordinarily include fees for the portion of the litigation concerning the fee award itself. In [https://cdn.loc.gov/service/ll/usrep/usrep496/usrep496154/usrep496154.pdf Commissioner, Immigration and Naturalization Service v. Jean], 496 U.S. 154 (1990), the Court rejected the argument that a separate determination must be made as to whether the government’s position on the fee issues was substantially justified before fees could be awarded for fee litigation.<br />
<br />
Finally, the Supreme Court has held that paralegal fees may be recoverable under EAJA. In so doing, the Court overruled the Federal Circuit’s characterization of those expenditures as “expenses” (allowable only at cost) and not fees. ''See'' ''Richlin Sec. Serv. Co. v. Chertoff'', 553 U.S. 571 (2008); ''see also'' [https://www.cadc.uscourts.gov/internet/opinions.nsf/BE709C1A83828A4585256F82006D0A35/$file/02-5037b.pdf Role Models Am., Inc. v. Brownlee], 353 F.3d 962, 974 (D.C. Cir. 2004); ''Hyatt v. Barnhart'', 315 F.3d 239, 255 (4th Cir. 2002) (holding that EAJA authorizes reimbursement for work “performed not only by attorneys but also by persons doing ‘tasks traditionally performed by an attorney and for which the attorney would customarily charge the client,’ regardless of whether a licensed attorney, paralegal, or law clerk performed them”); ''Jean v. Nelson'', 863 F.2d 759, 778 (11th Cir. 1988).<br />
<br />
===Authority of Agencies and Courts=== <br />
Ordinarily, awards for administrative proceedings are to be made by the presiding agency (which is usually, but not always, the agency that will have to pay any award) and awards for court cases by the court. EAJA provides, however, that when a court reviews the decision on the merits in an adversary adjudication, the court shall make any award for the administrative and the judicial review stages of the proceeding. In some cases, moreover, the courts may make fee awards for administrative proceedings that are not independently covered by EAJA. In [https://cdn.loc.gov/service/ll/usrep/usrep490/usrep490877/usrep490877.pdf Sullivan v. Hudson], 490 U.S. 877 (1989), the Supreme Court ruled that a court could award EAJA fees for the portion of a Social Security disability proceeding occurring after a court remand, even though the proceeding was not “adversarial” within the meaning of the EAJA. In this case, the party seeking fees did not become a prevailing party under the EAJA until completion of the agency proceeding on remand. The remand proceedings were “intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees,” 490 U.S. at 888, and so should be considered an integral part of the “civil action.” In two subsequent cases, however, the Court significantly narrowed the seemingly broad reasoning underlying ''Hudson'', limiting its application to those instances where (1) the district court orders the remand and (2) “the district court action remains pending until completion of the administrative proceedings.” ''See'' [https://cdn.loc.gov/service/ll/usrep/usrep501/usrep501089/usrep501089.pdf Melkonyan v. Sullivan], 501 U.S. 89, 96–97 (1991) (reasoning that ''Hudson'' “stands for the proposition that in those cases where the district court retains jurisdiction of the civil action and contemplates entering a final judgment following the completion of administrative proceedings, a claimant may collect EAJA fees for work done at the administrative level”); [https://cdn.loc.gov/service/ll/usrep/usrep509/usrep509292/usrep509292.pdf Shalala v. Schaefer], 509 U.S. 292, 299–300 n.4 (1993) (holding that sentence-four social security remands do not fall within the scope of ''Hudson'' because the district court does not retain jurisdiction and noting that the Court had limited ''Hudson'' “to a narrow class of qualifying administrative proceedings where the district court retains jurisdiction of the civil action pending the completion of the administrative proceedings”); ''see also W. Watersheds Project v. U.S. Dep’t of the Interior'', 677 F.3d 922, 927 (9th Cir. 2012). Circuit courts have largely followed ''Melkonyan'' and ''Schaefer''’s limiting construction of ''Hudson'' in administrative pre- and post-district court litigation contexts. ''See W. Watersheds Project'', 677 F.3d at 929 (holding that pre-litigation administrative grazing-permit proceedings are ineligible for collection of EAJA fees because the proceedings are not adversarial adjudications under 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section504&num=0&edition=prelim 504(b)(1)(C)]); ''Mar. Mgmt., Inc. v. United States'', 242 F.3d 1326, 1336 (11th Cir. 2001) (denying pre-litigation fees incurred during administrative proceedings before the General Accounting Office because Maritime did not seek judicial relief on remand from the district court); ''Friends of the Boundary Waters Wilderness v. Thomas'', 53 F.3d 881, 887 (8th Cir. 1995) (citing ''Pollgreen v. Morris'', 911 F.2d 527, 535–36 (11th Cir. 1990), and ''Full Gospel'', 927 F.2d 628 (D.C. Cir. 1991), in support of the proposition that prelitigation administrative proceedings do not have the “requisite ancillary relationship with the judicial action to permit a reward of fees under ''Hudson'',” forming the basis for its denial of fees for pre-litigation expenses incurred during the Forest Service’s administrative appeals process); ''Full Gospel Portland Church v. Thornburgh'', 927 F.2d 628, 629, 631–33 (D.C. Cir. 1991) (denying fees for post-litigation administrative proceedings before the Immigration and Naturalization Service because the “[p]roceedings under the [Immigration and Nationality Act] lack[ed] the specific features of the SSA proceedings that, in ''Hudson'', demonstrated the ‘intimate tie’ between administrative and judicial proceedings”).<br />
<br />
===Agency Procedures=== <br />
EAJA requires agencies to adopt procedures for processing applications for awards in administrative proceedings. More than 30 agencies have issued final procedures for handling applications for attorney's fee awards in their administrative proceedings. Most of these agencies have generally followed model rules prepared by ACUS in furtherance of its statutory responsibility to consult with agencies in the development of these procedures. [https://www.acus.gov/sites/default/files/documents/ACUS%20Model%20EAJA%20Rules.pdf Model Rules for the Implementation of the Equal Access to Justice Act], 51 Fed. Reg. 16659 (May 6, 1986). <br />
<br />
==Legislative History==<br />
Viewed by Congress both as a small business relief measure and as a regulatory reform bill, EAJA was originally passed in 1980 as part of a small business assistance act, to which it was added by amendment on the floor of the Senate. The conference committee accepted the Senate version over a House version of the legislation that did not contain the Equal Access provisions. A substantially identical bill, S. 265, had passed the Senate overwhelmingly in 1979 and had been reported favorably (with a few amendments) by the House Judiciary Committee the day before Senate passage of H.R. 5612. Thus, courts and others interpreting the EAJA have frequently referred to the congressional reports on S. 265 (cited below) as well as the Conference Report on H.R. 5612. The measure was probably tacked on to H.R. 5612 both to ensure passage before adjournment of the 96th Congress and to forestall a possible presidential veto.<br />
<br />
Significant changes from the Senate version made in the House Judiciary Committee (and explained briefly in that Committee’s report on S. 265) include the addition of the 500-employee eligibility requirement, the exemption of certain nonprofit organizations from the net worth eligibility requirements, the limitation of covered administrative proceedings to formal adversary adjudications (and the exclusion thereby of most Social Security administrative proceedings), and assignment of the responsibility for fee determinations in administrative proceedings to agency adjudicative officers.<br />
<br />
EAJA was the subject of continuing legislative attention, in part because of its three-year sunset provision. A 1982 amendment excluded tax cases from EAJA’s coverage and created a separate provision for those cases with different standards and burdens of proof (26 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title26-section7430&num=0&edition=prelim 7430]). A House Judiciary Subcommittee held oversight hearings on EAJA in April 1982, and the Senate Judiciary Subcommittee held similar hearings in December of that year.<br />
<br />
A Senate bill to amend EAJA and make it permanent, S. 919, was reported favorably by the Senate Judiciary Committee in August 1984; both houses of Congress passed a similar House bill, H.R. 5479, on October 3, 1984. H.R. 5479 included several important changes to the law. In addition to repealing the sunset provision, it added contract appeals board proceedings (and appeals from board decisions) to those covered by EAJA, raised the net worth limits on eligibility for fee awards, and specified that the position of the United States that must be substantially justified to avoid an award included its underlying position as well as its litigation position. In addition, it required the payment of awards from agency funds, deleting an earlier statutory provision that permitted awards to be paid from the general judgment fund of the United States when not paid by the agency. <br />
<br />
President Reagan vetoed this legislation after Congress had adjourned. The President supported reauthorization of EAJA but objected to two provisions of H.R. 5479: one that would require consideration of the government’s underlying position as well as its litigation position and another that would have required the payment of interest by the United States on awards not paid within 60 days.<br />
<br />
Legislation to extend and amend EAJA was reintroduced in the 99th Congress, passed by both Houses of Congress (H.R. 2378), and signed by the President on August 5, 1985 ([https://www.govinfo.gov/content/pkg/STATUTE-99/pdf/STATUTE-99-Pg183.pdf Pub. L. No. 99-80]). In a compromise designed to avoid another veto, the final legislation retained the provision requiring consideration of the government’s underlying position, but added a provision that substantial justification determinations are to be made on the record, rather than on the basis of discovery; the provision for the payment of interest was dropped, except where the United States appeals an award of costs or fees in court and the award is later upheld. Two other changes from the 1984 bill appeared in the final legislation. First, while H.R. 5479 would have made the adjudicative officer’s decision on a fee application in an administrative proceeding the final decision of the agency, H.R. 2378 gave final authority to the agency itself. Also, because the original Act had expired before passage of the new law, a savings provision was included to cover proceedings both commenced and completed during the gap from October 1, 1984, to August 5, 1985.<br />
<br />
EAJA has been amended several times since then. In 1986, the amendment clarified that the administrative provisions of EAJA do not apply to tax cases, and in 1988, an amendment added civil penalty proceedings under the Program Fraud Civil Remedies Act to EAJA’s coverage. In 1992, Congress enacted section 506 of the Federal Courts Administration Act ([http://uscode.house.gov/statutes/pl/102/572.pdf Pub. L. No. 102-572]), which made EAJA applicable to the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims), for cases pending as of October 29, 1992, and subsequent cases. In 1993, coverage of administrative proceedings under the Religious Freedom Protection Act ([http://uscode.house.gov/statutes/pl/103/141.pdf Pub. L. No. 103-141]) was added.<br />
<br />
More major changes were made in 1996. In March 1995, Senator Russ Feingold introduced the Equal Access to Justice Reform Amendments of 1995 ([https://www.congress.gov/104/bills/s554/BILLS-104s554is.pdf S. 554]). A modified version of S. 554 was subsequently inserted into [https://www.congress.gov/104/bills/s942/BILLS-104s942es.pdf S. 942], the Small Business Regulatory Fairness Act of 1995, introduced by Senator Kit Bond. The Senate Committee on Small Business held a hearing on this bill on February 28, 1996. The bill was passed unanimously by the Senate on March 19, 1996. The bill was ultimately incorporated into H.R. 3136, The Contract With America Advancement Act of 1996 ([https://www.congress.gov/104/plaws/publ121/PLAW-104publ121.pdf Pub. L. No. 104-121]). The amendments increased the maximum hourly rate from $75 to $125, allowed for an award of fees even if the party lost in litigation if the government’s demand was deemed excessive, and increased the class of parties entitled to fees.<br />
<br />
These amendments were controversial. Supporters expressed concern that EAJA as originally enacted was not allowing as many parties to collect as originally intended and had not provided enough of a brake on unsupportable government litigation. On the other hand, some members expressed the concern that the government is now open to an increased liability every time it chooses to litigate. ''See'' Judith E. Kramer, ''Equal Access to Justice Act Amendments of 1996: A New Avenue for Recovering Fees from the Government'', 51 Admin. L. Rev. 363, 373–76 (1999). In 2012, this latter concern materialized into a bill when Representative Cynthia Lummis introduced the [https://www.congress.gov/112/bills/hr1996/BILLS-112hr1996rh.pdf Government Litigation Savings Act] (H.R. 1996), which would, among other things, eliminate the exemption of net-worth limitation for nonprofit organizations, heighten the injury requirement, and expand exceptions to the EAJA for impermissible behavior. While the bill secured 66 co-sponsors and was placed on the “union calendar” in July of 2012, the bill was not put to a vote. In the 113rd Congress she introduced an EAJA reform bill, [https://www.congress.gov/113/bills/hr2919/BILLS-113hr2919eh.pdf H.R. 2919], which would require ACUS to systematically monitor EAJA cases and make annual reports to Congress, leading to a database, but no action was taken. However, the idea has attracted bipartisan support in the 114th Congress, ''see'' The Open Book on Equal Access to Justice Act ([https://www.congress.gov/114/bills/hr3279/BILLS-114hr3279eh.pdf H.R. 3279]), and it was incorporated into § 108 of [https://www.congress.gov/114/bills/s405/BILLS-114s405pcs.pdf S. 405] The Bipartisan Sportsmen’s Act of 2015 ([https://www.congress.gov/114/bills/s405/BILLS-114s405pcs.pdf S. 405]).<br />
<br />
===Source Note===<br />
There is no truly comprehensive, up-to-date source of information on EAJA. No publication deals exclusively with Equal Access cases. [https://www.acus.gov/sites/default/files/documents/P8%201992-05%20KRENT%20EAJA%20Inconclusive%20Experiment%201992%20ACUS%20331_0.pdf Monitoring the Federal Government’s Conduct Through Fee Shifting Under the Equal Access to Justice Act: An Inconclusive Experiment], prepared by Harold J. Krent for ACUS in 1992, offers case analysis as well as insight into how EAJA worked in practice up to then; [https://www.acus.gov/sites/default/files/documents/92-5.pdf Recommendation 92-5], based in part on Professor Krent’s study, suggested legislative improvements to EAJA. <br />
<br />
The Bibliography that follows is not intended to be comprehensive, particularly with respect to books and articles about EAJA, but to offer a selection of potentially useful publications. Sources before 1985, when EAJA was significantly amended, are listed for their background value as well as for their discussion of provisions that remain unchanged. In particular, the preambles to ACUS’s proposed and final rules for agency implementation of the original Act (as well as the 1985 amendments) contain extensive discussion of many questions concerning interpretation of EAJA, as does the Justice Department’s 1985 publication, ''Award of Attorney’s Fees and Other Expenses in Judicial Proceedings Under the Equal Access to Justice Act''.<br />
<br />
Statistical information on the amount of fees and expenses awarded under EAJA in many administrative proceedings and court cases appeared in annual reports (until 1994) by the Chairman of ACUS and (until 1992) by the Director of the Administrative Office of the U.S. Courts, respectively. Because these reports depend on the accuracy and completeness of the information provided by the agencies and the courts, they are not necessarily comprehensive.<br />
<br />
==Bibliography==<br />
===Legislative History and Congressional Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''Hearings on S. 265'', Before the Subcomm. on Improvements in Judicial Mach. of the S. Comm. on the Judiciary, 96th Cong. (1979).<br />
*S. Rep. No. 96-253 (1979).<br />
*H.R. Rep. No. 96-1418 (1980).<br />
*''S.265, Award of Attorneys’ Fees Against the Federal Government'', Hearing Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. of the Judiciary, 96th Cong. (1980).<br />
*H.R. Rep. No. 96-1434 (1980).<br />
*''Implementation of the Equal Access to Justice'', Hearings Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 97th Cong. (1982).<br />
*''Equal Access to Justice'', Hearing Before the Subcomm. on Agency Admin. of the S. Comm. on the Judiciary, 97th Cong. (1982).<br />
*''S. 919, Reauthorization of the Equal Access to Justice Act'', Hearing Before the Subcomm. on Admin. Practice and Procedure of the S. Comm. on the Judiciary, 98th Cong. (1983).<br />
*S. Rep. No. 98-586 (1984).<br />
*''Hearings on H.R. 5059'', Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 98th Cong. (1984).<br />
*H.R. 5479, Equal Access to Justice Act Amendments, H.R. Rep. No. 98-992 (1984).<br />
*''H.R. 2223, Equal Access to Justice Act Amendments'', Hearings Before the Subcomm. on Courts, Civil Liberties, and the Admin. of Justice of the H. Comm. on the Judiciary, 99th Cong. (1985).<br />
*H.R. 2378, Equal Access to Justice Act Amendments, H.R. Rep. No. 99-120, pts. 1-2 (1985)<br />
*''S. 917 and S. 942: Implementing the White House Conference on Small Business—Recommendations on Regulation and Paperwork'', Hearings Before the S. Comm. on Small Business, 104th Cong. (1996).<br />
*''Legislation Relating to Compensation COLA, Court of Veterans Appeals, and Other Matters'', Hearing Before the S. Comm. on Veterans’ Affairs, 104th Cong. (1996). (See pages 173–97 for a discussion of EAJA Awards in Court of Veterans Appeals cases.)<br />
*[http://commdocs.house.gov/committees/judiciary/hju27743.000/hju27743_0f.htm Legislative Hearing on H.R. 435, the “Equal Access to Justice Reform Act of 2005.”] Subcomm. on Courts, the Internet, and Intellectual Prop. of the H. Comm. on the Judiciary, 109th Cong. (2006).<br />
*Open Book on Equal Access to Justice Act, [https://www.govinfo.gov/content/pkg/CRPT-113hrpt434/pdf/CRPT-113hrpt434.pdf H.R. Rep. No. 113–434] (2014).<br />
*Open Book on Equal Access to Justice Act, [https://www.govinfo.gov/content/pkg/CRPT-114hrpt351/pdf/CRPT-114hrpt351.pdf H.R. Rep. No. 114–351] (2014).<br />
</div><br />
<br />
===ACUS Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
====Model Rules====<br />
<br />
*[https://www.govinfo.gov/content/pkg/FR-2019-08-08/pdf/2019-16946.pdf Revised Model Rules for Implementation of the Equal Access to Justice Act], 84 Fed. Reg. 38933 (Aug. 8, 2019).<br />
*[https://www.govinfo.gov/content/pkg/FR-1981-03-10/pdf/FR-1981-03-10.pdf Draft Model Rules for Implementation of the Equal Access to Justice Act], 46 Fed. Reg. 15895 (March 10, 1981).<br />
*[https://www.govinfo.gov/content/pkg/FR-1985-11-06/pdf/FR-1985-11-06.pdf Draft Revised Model Rules for Implementation of the Equal Access to Justice Act], 50 Fed. Reg. 46,250 (Nov. 6, 1985).<br />
*[https://www.acus.gov/sites/default/files/documents/ACUS%20Model%20EAJA%20Rules.pdf Equal Access to Justice Act: Model Rules for Implementation], 51 Fed. Reg. 16665 (May 6, 1986).<br />
*[https://www.govinfo.gov/content/pkg/FR-1981-06-25/pdf/FR-1981-06-25.pdf Model Rules for Agency Implementation of the Equal Access to Justice Act], 46 Fed. Reg. 32900 (June 25, 1981).<br />
<br />
====Recommendations====<br />
<br />
*Recommendation 2019-4, [https://www.govinfo.gov/content/pkg/FR-2019-08-08/pdf/2019-16946.pdf Revised Model Rules for Implementation of the Equal Access to Justice Act]<br />
*Recommendation 92-5, [https://www.acus.gov/sites/default/files/documents/92-5.pdf Streamlining Attorney’s Fee Litigation Under the Equal Access to Justice Act]<br />
<br />
====Reports on EAJA Awards====<br />
<br />
*[https://www.acus.gov/report/equal-access-justice-act-awards-fy-2022-report-chair Report of the Office of the Chair: Equal Access to Justice Act Awards Report to Congress Fiscal Year 2022] (Mar. 31, 2022).<br />
*[https://www.acus.gov/report/equal-access-justice-act-awards-fy-2021-report-chairman Report of the Office of the Chairman: Equal Access to Justice Act Awards Report to Congress Fiscal Year 2021] (Mar. 30, 2022).<br />
*[https://www.acus.gov/report/equal-access-justice-act-awards-fy-2020-report-chairman Report of the Office of the Chairman: Equal Access to Justice Act Awards Report to Congress Fiscal Year 2020] (Mar. 30, 2021).<br />
*[https://www.acus.gov/report/equal-access-justice-act-awards-fy-2019-report-chairman Report of the Office of the Chairman: Equal Access to Justice Act Awards Report to Congress Fiscal Year 2019] (Mar. 31, 2020).<br />
*[https://www.acus.gov/sites/default/files/documents/FY%202010%20EAJA%20Report.pdf Report of the Chairman on Agency and Court Awards in FY 2010 under the Equal Access to Justice Act] (Jan. 9, 2013).<br />
*See also [https://www.acus.gov/eaja/reports reports] for fiscal years before 1995.<br />
</div><br />
<br />
===Other Government Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Admin. Office of the U.S. Courts, ''Report by the Director of the Administrative Office of the United States Courts of Requests for Fees and Expenses Under the Equal Access to Justice Act of 1980, July 1, 1991–June 30, 1992'', reprinted in Annual Report of the Director of the Administrative Office of the United States Courts 1992, at 92. (See also annual reports for 1982 through 1991.)<br />
*U.S. Dep’t of Justice, Office of Legal Policy, ''Award of Attorneys’ Fees and Other Expenses in Judicial Proceedings Under the Equal Access to Justice Act'' (Rev. ed. 1985).<br />
*Gov't. Accountability Off., GAO-HEHS-98-58R, [https://www.gao.gov/assets/90/87317.pdf Equal Access to Justice Act: Its Use in Selected Agencies] (2013).<br />
*Gov't Accountability Off., GAO-14-458T, [https://www.gao.gov/products/gao-14-458T USDA Litigation: Limited Data Available on USDA Attorney Fee Claims and Payments] (2014)<br />
*Small Business Admin., Office of Advocacy, ''Small Business Attorneys’ Fee Recovery: Report on the Equal Access to Justice Act'' (1984).<br />
*Small Business Admin., Office of Advocacy, ''The Equal Access to Justice Act and Small Business—Analysis and Critique'' (Aug. 10, 2001).<br />
</div><br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*Joel P. Bennett, ''Winning Attorneys’ Fees from the U.S. Government'' (Chapter 1) (Law Journal Seminars Press, 1984, updated periodically).<br />
*D. Greg Blankinship, ''Washington Equal Access to Justice Act: A Substantial Proposal for Reform'', 77 Wash. L. Rev. 169 (2002).<br />
*Hillary Bunker et al., Note, [https://www.bva.va.gov/docs/VLR_VOL4/AuthorsCopies6-Bunker-Finn-Lehman.PDF Reforming the Equal Access to Justice Act to Maximize Veterans’ Receipt of Benefits and Increase Efficiency of the Claims Process], 4 Veterans L. Rev. 206 (2012).<br />
*June Carbone, [https://lira.bc.edu/work/ns/973c9a58-572a-45c3-b9cd-36f3466bc510 The Misguided Application of Traditional Fee Doctrine to the Equal Access to Justice Act], 26 B.C. L. Rev. 843 (1985).<br />
*D.B. Dobbs, ''The Market Test for Attorney Fee Awards: Is the Hourly Rate Test Mandatory?'', 28 Ariz. L. Rev. 1 (1986).<br />
*James E. Enlow, ''International Law—Protecting National Security Substantially Justifies U.S. Position and Makes an Award of Fees Under the Equal Access to Justice Act Unjust—Kiareldeen v. Ashcroft, 273 F. 3d 542 (3d Cir. 2001)'', 26 Suffolk Transnat’l L. Rev. 231 (2002).<br />
*John W. Finley, Note, [https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1036&context=law_urbanlaw Unjust Access to the Equal Access to Justice Act: A Proposal to Close the Act’s Eligibility Loophole for Members of Trade Associations], 53 Wash. U. J. Urb. & Contemp. L. 243 (1998).<br />
*Matthew Fischer, Note, ''The Equal Access to Justice Act—Are the Bankruptcy Courts Less Equal than Others?'', 92 Mich. L. Rev. 2248 (1994).<br />
*Joseph A. Fischetti, Comment, [https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1052&context=shlr Ratliff v. Astrue: The Collision of the Equal Access Justice Act and the Debt Collection Improvement Act], 40 Seton Hall L. Rev. 723 (2010).<br />
*Louise Hill, ''An Analysis and Explanation of the Equal Access to Justice Act'', 19 Ariz. St. L.J. 229 (1987).<br />
*Louise Hill, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2531&context=caselrev Equal Access to Justice Act—Paving the Way for Legislative Change], 36 Case W. Res. L. Rev. 50 (1985).<br />
*Thomas W. Holm, Note, ''Aliens’ Alienation from Justice: The Equal Access to Justice Act Should Apply to Deportation Proceedings'', 75 Minn. L. Rev. 1185 (1991).<br />
*Christopher Kelley, ''Attorney’s Fee Awards for Unreasonable Government Conduct: Notes on the Equal Access to Justice Act'', 2004 Ark. L. Notes 437 (2004).<br />
*Jamie H. Kim, [https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1130&context=naalj Better Access to Justice, Better Access to Attorneys’ Fees–the Procedural Implications of Scarborough v. Principi], 25 J. Nat’l Ass’n Admin. L. Judiciary 583 (2005).<br />
*Donald J. Kinlin & Michael T. Kavanaugh, ''A Current Guide to Recovery Under the Equal Access to Justice Act'' (ABA Section of Pub. Contract Law, 1989).<br />
*Brian Korpics et al., ''Shifting the Debate: In Defense of the Equal Access to Justice Act'', 43 Envtl. L. Rep. (Envtl. L. Inst.) 10,985 (2013).<br />
*Judith E. Kramer, ''Equal Access to Justice Act Amendments of 1996: A New Avenue for Recovering Fees from the Government'', 51 Admin. L. Rev. 363 (1999).<br />
*Harold J. Krent, [https://www.acus.gov/sites/default/files/documents/P8%201992-05%20KRENT%20EAJA%20Inconclusive%20Experiment%201992%20ACUS%20331_0.pdf Monitoring the Federal Government’s Conduct Through Fee Shifting Under the Equal Access to Justice Act—An Inconclusive Experiment (]1992) (report to ACUS).<br />
*Niki Kuckes, Note, ''Reenacting the Equal Access to Justice Act: A Proposal for Automatic Attorneys’ Fee Awards'', 94 Yale L. J. 1207 (1985).<br />
*Daniel Lee, ''Sovereign Immunity, Holding the Federal Government Liable for Current Basis Fee Enhancements Requires an Explicit Waiver of Sovereign Immunity from Interest'', 66 Geo. Wash. L. Rev. 1066 (1997).<br />
*Alice Miller, Comment, ''Calling Sierra Club for Help?: Attorney Fees Under the Equal Access to Justice Act and Its Effects on Litigation Involving Large Environmental Groups'', 9 Dick. J. Envtl. L. & Pol’y 553 (2001).<br />
*James B. Nobile, Note, ''Determining Fees for Fees Under the Equal Access to Justice Act: Accomplishing the Act’s Goals'', 9 Cardozo L. Rev. 1091 (1988).<br />
*Arlene S. Ragozin, Comment, ''The Waiver of Immunity in the Equal Access to Justice Act: Clarifying Opaque Language'', 61 Wash. L. Rev. 217 (1986).<br />
*Robert L. Rossi, ''Attorneys’ Fees'' § 10:5 (West Grp., 3d ed. 2001).<br />
*Barry S. Rutcofsky, Note, [https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1464&context=hlr The Award of Attorneys’ Fees under the Equal Access to Justice Act], 11 Hofstra L. Rev. 307 (1982).<br />
*Anthony Michael Sabino, ''“And Unequal Justice for All”—Bankruptcy Court Jurisdiction Under the Equal Access to Justice Act'', 22 Mem. St. U. L. Rev. 453 (1992).<br />
*Gregory C. Sisk, ''A Primer on Awards of Attorney’s Fees against the Federal Government'', 25 Ariz. St. L.J. 733 (1993).<br />
*Gregory C. Sisk, [https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5567&context=lalrev The Essentials of the Equal Access to Justice Act: Court Awards of Attorney’s Fees for Unreasonable Government Conduct (Part One)], 55 La. L. Rev. 217 (1994); [https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5610&context=lalrev (Part Two)], 56 La. L. Rev. 1 (1995).<br />
*Nancy A. Streeff, Note, ''Gavette v. Office of Personnel Management: The Right to Attorney Fees Under the Equal Access to Justice Act'', 36 Am. U. L. Rev. 1013 (1987).<br />
*John J Sullivan, Note, ''The Equal Access to Justice Act in the Federal Courts'', 84 Colum. L. Rev. 1089 (1984).<br />
*Tayler W. Tibbitts, Note, ''Fee Shifting: Perspective for EAJA Reformers'', 28 J.L. & Pol. 371 (2013).<br />
</div><br />
<br />
===Miscellaneous Sources===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*''What constitutes “adversary adjudication” by administrative agencies entitling prevailing parties to award of attorneys’ fees under the Equal Access to Justice Act?'', 96 ALR Fed. 336.<br />
*''Who Is “Party” Entitled to Recover Attorneys’ Fees Under Equal Access to Justice Act (28 U.S.C.A. § 2412(D))?'', 107 ALR Fed. 827.<br />
*''Who Is “Prevailing Party” so as to Be Entitled to Award of Attorneys’ Fees by Court Under Equal Access to Justice Act (28 U.S.C.A. § 2412(D))?'', 105 ALR Fed. 110.<br />
*''Recoupment by Pro Se Litigant of Attorney’s Fees Under Equal Access to Justice Act (28 U.S.C.A. § 2412)'', 107 ALR Fed. 888.<br />
*''Award of Attorneys’ Fees in Excess of $75 Per Hour Under Equal Access to Justice Act (EAJA) Provision (28 U.S.C.A. § 2412(D)(2)(A)(ii)) Authorizing Higher Awards—Cases Involving Law Other Than Social Security'', 119 ALR Fed. 1.<br />
*''Recoupment of Attorney Fees, Under Equal Access to Justice Act (EAJA) (28 U.S.C.A. § 2412), by Litigant Represented by Counsel to Whom No Fee Is Paid by Litigant'', 121 ALR Fed. 291.<br />
</div><br />
<br />
===Agency Regulations===<br />
<div style="column-count:3;-moz-column-count:3;-webkit-column-count:3"><br />
*Agriculture ([https://gov.ecfr.io/cgi-bin/text-idx?SID=da384ca7d76b43b0a337b773f0a65c5c&mc=true&node=sp7.1.1.j&rgn=div6 7 C.F.R. Part 1, Subpt. J])<br />
*Commerce ([https://www.ecfr.gov/cgi-bin/text-idx?SID=7e769e2b3a1d39a1edacbdb3265bdd53&mc=true&node=pt15.1.18&rgn=div5 15 C.F.R. Part 18])<br />
*Commodity Futures Trading Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=7b98471ecdb7f2cc61affb995fe1719b&mc=true&node=pt17.2.148&rgn=div5 17 C.F.R. Part 148])<br />
*Consumer Product Safety Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a5d285d28662ae1963542dea568dcd66&mc=true&node=sp16.2.1025.h&rgn=div6 16 C.F.R. Part 1025, Subpt. H])<br />
*Education ([https://www.ecfr.gov/cgi-bin/text-idx?SID=be98dd09ed3590fbf6c8bf338640ec9d&mc=true&node=pt34.1.21&rgn=div5 34 C.F.R. Part 21])<br />
*Environmental Protection Agency ([https://www.ecfr.gov/cgi-bin/text-idx?SID=697bb31747b228e8eaef79aaf15e1891&mc=true&node=pt40.1.17&rgn=div5 40 C.F.R. Part 17])<br />
*Federal Communications Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=7f53f12af683a496872db1198dd98880&mc=true&node=sp47.1.1.k&rgn=div6 47 C.F.R. Part 1, Subpt. K])<br />
*Federal Deposit Insurance Corporation ([https://www.ecfr.gov/cgi-bin/text-idx?SID=ae5d2f69bfe12a1c34b97986df035267&mc=true&node=sp12.5.308.p&rgn=div6 12 C.F.R. Part 308, Subpt. P])<br />
*Federal Labor Relations Authority ([https://www.ecfr.gov/cgi-bin/text-idx?SID=7f0b4efa01565aa2ca4e4e68288b171c&mc=true&node=pt5.3.2430&rgn=div5 5 C.F.R. Part 2430])<br />
*Federal Maritime Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=de802e5067b75e0207575d4202690aff&mc=true&node=sp46.9.502.v&rgn=div6 46 C.F.R. Part 502, Subpt. V])<br />
*Federal Mine Safety and Health Review Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=8fbc0567c34012175049068c8b6fa38f&mc=true&node=pt29.9.2704&rgn=div5 29 C.F.R. Part 2704])<br />
*Federal Reserve System ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c1aef88448ee2295824d384e617758e1&mc=true&node=sp12.4.263.g&rgn=div6 12 C.F.R. Part 263, Subpt. G])<br />
*Federal Trade Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=2e96acfe168b6fc7a3d1822a31756a11&mc=true&node=sp16.1.3.i&rgn=div6 16 C.F.R. Part 3, Subpt. I])<br />
*Health and Human Services ([https://www.ecfr.gov/cgi-bin/text-idx?SID=f6209a49c599bc20a13258c0ebdef2ec&mc=true&node=pt45.1.13&rgn=div5 45 C.F.R. Part 13])<br />
*Housing and Urban Development ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b0aee24cd269d9ac63927e642c472052&mc=true&node=pt24.1.14&rgn=div5 24 C.F.R. Part 14])<br />
*Interior ([https://www.ecfr.gov/cgi-bin/text-idx?SID=d9fb32bb2794bb9487f0994a5a7f9024&mc=true&node=sp43.1.4.f&rgn=div6 43 C.F.R. Part 4, Subpt. F])<br />
*International Trade Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=273422ef46731183bfa4c6c492ffe8d3&mc=true&node=pt19.3.212&rgn=div5 19 C.F.R. Part 212])<br />
*Justice ([https://www.ecfr.gov/cgi-bin/text-idx?SID=a6ec1ec97a1bef11537832ef649cf941&mc=true&node=pt28.1.24&rgn=div5 28 C.F.R. Part 24])<br />
*Labor ([https://www.ecfr.gov/cgi-bin/text-idx?SID=d7ecf02c183f63095765bbf74ac6722b&mc=true&node=pt29.1.16&rgn=div5 29 C.F.R. Part 16])<br />
*Merit Systems Protection Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=72002c823fa850699d39ea674fc3fe32&mc=true&node=se5.3.1201_1203&rgn=div8 5 C.F.R. 1201.203])<br />
*National Aeronautics and Space Administration ([https://www.ecfr.gov/cgi-bin/text-idx?SID=17b559eb35d686379190a932d938211f&mc=true&node=pt14.5.1262&rgn=div5 14 C.F.R. Part 1262])<br />
*National Credit Union Administration ([https://www.ecfr.gov/cgi-bin/text-idx?SID=edd7cb336613b58d5221d67887f0d027&mc=true&node=sp12.7.747.g&rgn=div6 12 C.F.R. Part 747, Subpt. G])<br />
*National Labor Relations Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=625aaa616203702b9297235bd38bbe0b&mc=true&node=sp29.2.102.t&rgn=div6 29 C.F.R. Part 102, Subpt. T])<br />
*National Transportation Safety Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=030c118943cb74e157b0dfb8e2b4b89a&mc=true&node=pt49.7.826&rgn=div5 49 C.F.R. Part 826])<br />
*Nuclear Regulatory Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=cfd43078f58b01945100cfbf4e28a607&mc=true&node=pt10.1.12&rgn=div5 10 C.F.R. Part 12])<br />
*Occupational Safety and Health Review Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=6eee15da934b6f5478437d5ba4ac3f0e&mc=true&node=pt29.9.2204&rgn=div5 29 C.F.R. Part 2204])<br />
*Office of Government Ethics ([https://www.ecfr.gov/cgi-bin/text-idx?SID=25321b2897f9df0c0413fc7bb0954813&mc=true&node=pt5.3.2610&rgn=div5 5.C.F.R. 2610])<br />
*Postal Service ([https://www.ecfr.gov/cgi-bin/text-idx?SID=8559f368a1bcbd24f54a2acfefc2d835&mc=true&node=pt39.1.960&rgn=div5 39 C.F.R. Part 960])<br />
*Securities and Exchange Commission ([https://www.ecfr.gov/cgi-bin/text-idx?SID=b7ac14bcb1dea70ffb497d211e85806f&mc=true&node=sp17.3.201.b&rgn=div6 17 C.F.R. Part 201, Subpt. B])<br />
*Small Business Administration ([https://www.ecfr.gov/cgi-bin/text-idx?SID=156e46e59d1db78f851ac3e4e4006714&mc=true&node=sp13.1.134.f&rgn=div6 13 C.F.R. Part 134, Subpt. F])<br />
*State ([https://www.ecfr.gov/cgi-bin/text-idx?SID=c0e4c4904d32df2b50a703b0a376427c&mc=true&node=pt22.1.134&rgn=div5 22 C.F.R. Part 134])<br />
*Transportation ([https://www.ecfr.gov/cgi-bin/text-idx?SID=2240bbe74b91b3cdd81eaa8a6dd7dc12&mc=true&node=pt49.1.6&rgn=div5 49 C.F.R. Part 6])<br />
**Federal Aviation Administration ([https://www.ecfr.gov/cgi-bin/text-idx?SID=699accc761b82b32af177afec519f724&mc=true&node=pt14.1.14&rgn=div5 14 C.F.R. Part 14])<br />
**Surface Transportation Board ([https://www.ecfr.gov/cgi-bin/text-idx?SID=6f6036ef251cb19e301b7982e1cc871c&mc=true&node=pt49.8.1016&rgn=div5 49 C.F.R. Part 1016])<br />
*Treasury ([https://www.ecfr.gov/cgi-bin/text-idx?SID=4bada14829507e29bed6e600f330c362&mc=true&node=pt31.1.6&rgn=div5 31 C.F.R. Part 6])<br />
**Comptroller of the Currency ([https://www.ecfr.gov/cgi-bin/text-idx?SID=82a5cd4f5a3bc53dd55f8e5af604c9e5&mc=true&node=se12.1.19_1210&rgn=div8 12 C.F.R. § 19.210])<br />
</div><br />
<br />
==Statutory Provisions==<br />
Equal Access to Justice Act <br />
<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section504&num=0&edition=prelim 5 U.S.C. § 504. Costs and fees of private parties]<br />
*[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2412&num=0&edition=prelim 28 U.S.C. § 2412. Costs and fees]</div>MGluthhttps://sourcebook.acus.gov/index.php?title=E-Government_Act_of_2002&diff=1647E-Government Act of 20022023-08-09T01:14:58Z<p>MGluth: </p>
<hr />
<div>[https://www.govinfo.gov/content/pkg/PLAW-107publ347/pdf/PLAW-107publ347.pdf Pub. L. No. 107-347], 116 Stat. 2899, Dec. 17, 2002, codified ''inter alia'' at 44 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter36&edition=prelim 3601–3606] (2012), 44 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter2&edition=prelim 3551-3558] (2012), 40 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title40-section305&num=0&edition=prelim 305] (2012), and 44 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim 3501] note (2012).<br />
<br />
'''Lead Agency:''' <br />
<br />
Office of Management and Budget, [https://www.whitehouse.gov/omb/management/egov/ Office of E-Government and Information Technology]<br />
<br />
==Overview:==<br />
<br />
The E-Government Act of 2002 ([https://www.congress.gov/107/bills/hr2458/BILLS-107hr2458enr.pdf H.R. 2458]/[https://www.congress.gov/107/bills/s803/BILLS-107s803rfh.pdf S. 803]) was signed by President Bush on December 17, 2002, with an effective date for most provisions of April 17, 2003. It was intended to further the federal government’s approach to information dissemination in the Internet Age. It contains many requirements for the government, but the main provisions of interest to administrative lawyers relate to:<br />
<br />
*'''Public Information.''' To the extent practicable, agencies must provide a website that includes all “information about that agency” required to be published in the ''Federal Register'' under 5 U.S.C. [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552&num=0&edition=prelim § 552(a)(1)-(2)].<br />
<br />
*'''Electronic Submission.''' To the extent practicable, agencies must accept electronically those submissions made in rulemaking under 5 U.S.C. § [http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section553&num=0&edition=prelim § 553(c)].<br />
<br />
*'''Electronic Dockets.''' To the extent practicable, agencies must have an Internet-accessible rulemaking docket that includes all public comments and other materials that by agency rule or practice are included in the agency docket, whether submitted electronically.<br />
<br />
*'''Privacy Impact Assessments.''' OMB is required to develop guidelines for privacy notices on agency websites, and agencies must conduct “privacy impact assessments” before collecting information that will be gathered, maintained, or disseminated using information technology, including “any information in an identifiable form permitting the physical or online contacting of a specific individual, if identical questions have been posed to, or identical reporting requirements imposed on, 10 or more persons, other than” federal agencies or employees. A number of agencies are also required to perform a special privacy assessment for proposed rules “on the privacy of information in an identifiable form, including the type of personally identifiable information collected and the number of people affected.”<br />
<br />
The E-Government Act also served to codify many of the White House’s E-Government initiatives. It codifies OMB’s role by creating an E-Administrator and Office of E-Government in OMB. It endorses and requires agencies to support crossagency initiatives such as E-Rulemaking, Geospatial One-Stop, E-Records Management, E-Authentication (especially E-Signatures) and Disaster Management; FirstGov (now USA.gov); and enterprise architecture. It authorizes funds for these activities.<br />
<br />
The E-Government Act also created new responsibilities for OMB to:<br />
<br />
*file an annual report to Congress;<br />
<br />
*sponsor ongoing dialogue with state, local, and tribal governments as well as the general public, the private, and the nonprofit sectors to find innovative ways to improve the performance of governments in collaborating on the use of information technology to improve the delivery of government information and services;<br />
<br />
*set standards for categorizing and indexing government information;<br />
<br />
*set standards for agency websites;<br />
<br />
*create a public directory for agency websites;<br />
<br />
*select agencies to engage in pilot projects on data integration; and<br />
<br />
*improve access for people with and without computers.<br />
<br />
Other provisions in Title II authorize agencies to award “share-in-savings” contracts under which contractors share in the savings achieved by agencies through the provision of technologies that improve or accelerate their work. Under these provisions, the executive branch is supposed to ensure, consistent with applicable law, that these contracts are operated according to sound fiscal policy and limit authorized waivers for funding of potential termination costs to appropriate circumstances so as to minimize the financial risk to the government.<br />
<br />
Title III is the Federal Information Security Management Act of 2002. It is very similar to Title X of the Homeland Security Act of 2002, also known as the Federal Information Security Management Act of 2002 (amended by [https://www.govinfo.gov/content/pkg/PLAW-113publ283/pdf/PLAW-113publ283.pdf Pub. L. No. 113-283] and codified at 44 U.S.C. §§ [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter2&edition=prelim 3551–58]). Title IV contains an authorization of appropriations and effective dates. Title V contains a series of sections devoted to Confidential Information Protection and Statistical Efficiency.<br />
<br />
==Legislative History==<br />
<br />
Representative Jim Turner introduced [https://www.congress.gov/107/bills/hr2458/BILLS-107hr2458enr.pdf H.R. 2458] with 40 co-sponsors on July 11, 2001. It was referred to the Subcommittee on Technology and Procurement Policy on September 18, 2002. The Subcommittee held hearings on October 1, 2002. The bill was forwarded by the Subcommittee to the full Committee by voice vote on October 8, 2002. It was reported to the House Floor Committee on Government Reform on November 14, 2002 (with substitute language). [https://www.congress.gov/107/crpt/hrpt787/CRPT-107hrpt787-pt1.pdf H. Rep. No. 107-787], pt. 1 (2002). After being referred sequentially to the House Judiciary Committee, it was discharged by that Committee on November 14, 2002. It passed the House (Committee of the Whole) by unanimous consent on November 15, 2002.<br />
<br />
On the Senate side, a companion bill, [https://www.congress.gov/107/bills/s803/BILLS-107s803rfh.pdf S. 803], had been introduced on May 1, 2001, by Senator Joe Lieberman. After a hearing on July 11, 2001, before the Committee on Governmental Affairs, the Committee reported the bill to the Senate floor on June 24, 2002, with an amendment in the nature of a substitute and an amendment to the title. [https://www.congress.gov/107/crpt/srpt174/CRPT-107srpt174.pdf S. Rep. No 107-174] (2002). On June 27, 2002, S. 803 passed the Senate with an amendment and an amendment to the title by unanimous consent. On November 15, 2002, the Senate received and agreed to H.R. 2458 as passed by the House, sending it to the President. President Bush signed it on December 17, 2002, as [https://www.govinfo.gov/content/pkg/PLAW-107publ347/pdf/PLAW-107publ347.pdf Pub. L. No. 107-347].<br />
<br />
==Bibliography==<br />
<br />
===Legislative History and Congressional Documents===<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg86062/pdf/CHRG-107hhrg86062.pdf H.R. 2458 and S. 803, the E-Government Act of 2002], Hearing Before the Subcomm. on Tech. and Procurement Policy of the H. Comm. on Gov’t Reform, 107th Cong. (2002).<br />
<br />
*[https://www.govinfo.gov/content/pkg/CHRG-107hhrg86064/pdf/CHRG-107hhrg86064.pdf Ensuring Coordination, Reducing Redundancy: A Review of OMB’s Freeze on IT Spending at Homeland Security Agencies], Hearing Before the Subcomm. on Tech. and Procurement Policy of the H. Comm. on Gov’t Reform, 107th Cong. (2002).<br />
*E-Government Act of 2002, [https://www.congress.gov/107/crpt/hrpt787/CRPT-107hrpt787-pt1.pdf H.R. Rep. No. 107-787] pt. 1 (2002).<br />
*E-Government Act of 2001, [https://www.congress.gov/107/crpt/srpt174/CRPT-107srpt174.pdf S. Rep. No. 107-174] (2002).<br />
<br />
===Executive Orders and OMB/OIRA Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*[https://www.whitehouse.gov/omb/management/egov/#R Archived Reports]<br />
*[https://www.whitehouse.gov/wp-content/uploads/2021/05/FY-2020-FISMA-Report-to-Congress.pdf Federal Information Security Modernization Act of 2014 Annual Report to Congress Fiscal Year 2020] (2021)<br />
*[https://www.whitehouse.gov/wp-content/uploads/2018/05/Cybersecurity-Risk-Determination-Report-FINAL_May-2018-Release.pdf Federal Cybersecurity Risk Determination Report and Action Plan] (2018)<br />
*OMB Circular A-130, [https://obamawhitehouse.archives.gov/sites/default/files/omb/assets/OMB/circulars/a130/a130revised.pdf Managing Information as a Strategic Resource] (July 27, 2016)<br />
*OMB Memorandum M-19-21, [https://www.whitehouse.gov/wp-content/uploads/2019/06/M-19-21.pdf Transition to Electronic Records] (June 28, 2019)<br />
*Executive Order 13892, [https://www.govinfo.gov/content/pkg/FR-2019-10-15/pdf/2019-22624.pdf Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication] (Oct. 9, 2019)<br />
</div><br />
<br />
===ACUS Recommendations===<br />
<br />
*2011-1, [https://www.acus.gov/sites/default/files/documents/Recommendation-2011-1-Legal-Considerations-in-e-Rulemaking.pdf Legal Considerations in e-Rulemaking]<br />
*2011-8, [https://www.acus.gov/sites/default/files/Recommendation-2011-8-E-Rulemaking-Innovations.pdf Agency Innovations in E-Rulemaking]<br />
*2013-5, [https://www.acus.gov/sites/default/files/documents/Social%20Media%20Rec_Final_12_9_13.pdf Social Media in Rulemaking]<br />
*2017-4, [https://www.acus.gov/recommendation/marketable-permits Marketable Permits]<br />
*2018-3, [https://www.acus.gov/recommendation/electronic-case-management-federal-administrative-adjudication Electronic Case Management Systems in Federal Administrative Adjudications]<br />
*2018-5, [https://www.acus.gov/sites/default/files/documents/Recommendation-2018-5%20%28Public%20Availability%20of%20Adjudication%20Rules%29.pdf Public Availability of Adjudication Rules]<br />
*2018-6, [https://www.acus.gov/sites/default/files/documents/Recommendation%202018-6%2C%20Improving%20Access%20to%20Regulations.gov%27s%20Rulemaking%20Dockets%20FINAL.pdf Improving Access to Regulations.gov’s Rulemaking Dockets]<br />
*2019-3, [https://www.acus.gov/sites/default/files/documents/2019-3%2C%20Public%20Availability%20of%20Agency%20Guidance%20Documents.pdf Public Availability of Agency Guidance Documents.pdf Public Availability of Agency Guidance Documents]<br />
*2020-6, [https://www.acus.gov/sites/default/files/documents/Recommendation%202020-6%2C%20Agency%20Litigation%20Webpages.pdf Agency Litigation Webpages.pdf Agency Litigation Websites]<br />
*Statement #20, [https://www.acus.gov/recommendation/agency-use-artificial-intelligence Agency Use of Artificial Intelligence]<br />
*2021-1, [https://www.acus.gov/sites/default/files/documents/Final%20-%20Managing%20Mass%20Computer-Generated%20and%20Falsely%20Attributed%20Comments.pdf Managing Mass, Computer Generated, and Falsely Attributed Comments]<br />
<br />
===GAO Documents===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
*GAO-03-901, [https://www.gao.gov/assets/240/239747.pdf Electronic Rulemaking: Efforts to Facilitate Public Participation Can Be Improved] (2003).<br />
*GAO-03-1169T, [https://www.gao.gov/assets/gao-03-1169t.pdf Electronic Government: Progress and Challenges in Implementing the Office of Personal Management's Initiatives] (2003).<br />
*GAO-04-561T, [https://www.gao.gov/assets/120/110754.pdf Electronic Government: Initiatives Sponsored by the Office of Management and Budget Have Made Mixed Progress] (2004).<br />
*GAO-05-12, [https://www.gao.gov/assets/250/244965.pdf Electronic Government: Federal Agencies Have Made Progress Implementing the E-Government Act of 2002] (2004).<br />
*GAO-05-420, [https://www.gao.gov/assets/250/246115.pdf Electronic Government: Funding of the Office of Management and Budget’s Initiatives] (2005).<br />
*GAO-05-777, [https://www.gao.gov/assets/250/247696.pdf Electronic Rulemaking: Progress Made in Developing Centralized E-Rulemaking System] (2005).<br />
*GAO-12-782, [https://www.gao.gov/assets/gao-12-782.pdf Electronic Government Act: Agencies Have Implemented Most Provisions, but Key Areas of Attention Remain] (2012).<br />
*GAO-13-94, [https://www.gao.gov/assets/gao-13-94.pdf Geospatial Information: OMB and Agencies Need to Make Coordination a Priority to Reduce Duplication] (2013). <br />
*GAO-14-758, [https://www.gao.gov/assets/gao-14-758.pdf Consumer Financial Protection Bureau: Some Privacy and Security Procedures for Data Collections Should Continue Being Enhanced] (2014).<br />
*GAO-16-267, [https://www.gao.gov/assets/gao-16-267.pdf Face Recognition Technology: FBI Should Better Ensure Privacy and Accuracy] (2016). <br />
*GAO-16-469, [https://www.gao.gov/assets/gao-16-469.pdf Information Technology: Federal Agencies Need to Address Aging Legacy Systems] (2016). <br />
*GAO-22-104603, [https://www.gao.gov/assets/gao-22-104603.pdf Chief Information Officers: Private Sector Practices Can Inform Government Roles] (2022). <br />
*GAO-22-105065, [https://www.gao.gov/assets/gao-22-105065.pdf Privacy: Dedicated Leadership Can Improve Programs and Address Challenges] (2022).<br />
</div><br />
<br />
===Other Government Documents===<br />
<br />
*Gen. Serv. Admin., [https://www.govinfo.gov/content/pkg/FR-2003-07-11/pdf/03-17634.pdf E-Authentication Policy for Federal Agencies], 68 Fed. Reg. 41370 (July 11, 2003).<br />
*Nat’l Archives & Records Admin., [https://www.archives.gov/about/plans-reports/e-gov Implementation of the E-Government Act] (FY 2006-2017).<br />
<br />
===Books and Articles===<br />
<div style="column-count:2;-moz-column-count:2;-webkit-column-count:2"><br />
<br />
*Thomas C. Beierle, [https://ideas.repec.org/p/rff/dpaper/dp-03-22.html Discussing the Rules: Electronic Rulemaking and Democratic Deliberation] (Apr. 2003) (Resources for the Future, Discussion Paper 03-22).<br />
<br />
*Barbara H. Brandon & Robert D. Carlitz, [https://heinonline.org/HOL/LandingPage?handle=hein.journals/admin54&div=52&id=&page= Online Rulemaking and Other Tools for Strengthening Our Civil Infrastructure], 54 Admin. L. Rev. 1421 (2002).<br />
<br />
*Barbara H. Brandon, ''An Update on the E-Government Act and Electronic Rulemaking'', 29 Admin. & Reg. L. News 7, Fall 2003.<br />
<br />
*Cary Coglianese, [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1103&context=faculty_scholarship E-Rulemaking: Information Technology and the Regulatory Process], 56 Admin. L. Rev. 353 (2004).<br />
<br />
*Cary Coglianese, [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1971&context=faculty_scholarship Enhancing Public Access to Online Rulemaking Information], 2 Mich. J. Envtl. & Admin. L. 1 (2012).<br />
<br />
*Cary Coglianese, Stuart Shapiro & Steven J. Balla, ''Unifying Rulemaking Information: Recommendations for the New Federal Docket Management System'', 57 Admin. L. Rev. 621 (2005).<br />
<br />
*''Connecting Democracy: Online Consultation and the Flow of Political Communications (''Stephen Coleman & Peter M. Shane eds., MIT Press 2013).<br />
<br />
*Bridget C.E. Dooling, [https://www.acus.gov/sites/default/files/documents/Legal-Issues-and-e-Rulemaking-3-17-11.pdf Legal Issues in e-Rulemaking] (Mar. 17, 2011) (report to ACUS).<br />
<br />
*Cynthia R. Farina et al., [https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1014&context=ceri Rulemaking 2.0: Understanding and Getting Better Public Participation], 65 U. Miami L. Rev. 395 (2011).<br />
<br />
*Michael Herz, [https://www.acus.gov/sites/default/files/documents/Herz%20Social%20Media%20Final%20Report.pdf Using Social Media in Rulemaking: Possibilities and Barriers] (Nov. 21, 2013) (report to ACUS).<br />
<br />
*Stephen M. Johnson, ''The Internet Changes Everything: Revolutionizing Public Participation and Access to Government Information Through the Internet'', 50 Admin. L. Rev. 277 (1998).<br />
<br />
*Stephen M. Johnson, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/Beyond-the-Usual-Suspects-ACUS-Rulemaking-2-and-a-Vision-for-Broader-More-Informed-and-More-Transparent-Rulemaking.pdf Beyond the Usual Suspects: ACUS, Rulemaking 2.0, and a Vision for Broader, More Informed, and More Transparent Rulemaking], 65 Admin. L. Rev. 77 (2013)<br />
<br />
*Jaime Klima, [https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1078&context=dltr The E-Government Act: Promoting E-Quality or Exaggerating the Digital Divide?], 2 Duke L. & Tech. Rev. 1-9 (2003).<br />
<br />
*Jeffrey S. Lubbers, The Future of Electronic Rulemaking: A Research Agenda, Regulatory Policy Program Paper RPP-2002-04 (Mar. 2002), ''reprinted in'' 27 Admin. & Reg. L. News 6, Summer 2002.<br />
<br />
*Jeffrey S. Lubbers, [http://www.administrativelawreview.org/wp-content/uploads/2014/04/A-Survey-of-Federal-Agency-Rulemakers-Attitues-About-E-Rulemaking.pdf A Survey of Federal Agency Rulemakers’ Attitudes About E-Rulemaking], 62 Admin. L. Rev. 451 (2010).<br />
<br />
*Oscar Morales & John Moses, ''e-Rulemaking’s Federal Docket Management System'' (May 24, 2006).<br />
<br />
*John Morison, ''e-Democracy: On-Line Civic Space and the Renewal of Democracy?'', 17 Can. J. L. & Juris. 129 (2004).<br />
<br />
*Beth Simone Noveck, [https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1580&context=fac_articles_chapters Designing Deliberative Democracy in Cyberspace: the Role of the Cyberlawyer], 9 B.U. J. Sci. & Tech. L. 1 (2003).<br />
<br />
*Beth Simone Noveck, [https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1781&context=fac_articles_chapters The Electronic Revolution in Rulemaking], 53 Emory L.J. 433 (2004).<br />
<br />
*John C. Reitz, ''Section VI: Computers and Law, E-Government,'' 54 Am. J. Comp. L. 733 (2006).<br />
<br />
*Todd Rubin, [https://www.acus.gov/sites/default/files/documents/Regulations.gov%20Report%20FINAL%2012%203%202018.pdf Regulations.gov and the Federal Docket Management System] (Dec. 1, 2018) (report to ACUS).<br />
<br />
*David Schlosberg, Stephen Zavetoski & Stuart Shulman, ''To Submit a Form or Not to Submit a Form, That Is the (Real) Question: Deliberation and Mass Participation in U.S. Regulatory Rulemaking'' (2005).<br />
<br />
*''Democracy Online: The Prospects for Political Renewal through the Internet'' (Peter M. Shane ed., 2004).<br />
<br />
*Peter M. Shane, [https://kb.osu.edu/bitstream/handle/1811/72613/ISJLP_V1N1_147.pdf Turning GOLD into EPG: Lessons from Low-Tech Democratic Experimentalism for Electronic Rulemaking and Other Ventures in Cyberdemocracy], 1 J. of L. & Pol’y for the Info. Soc’y 147 (2005).<br />
<br />
*Stuart Shapiro & Cary Coglianese, [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1146&context=faculty_scholarship First Generation E-Rulemaking: An Assessment of Regulatory Agency Websites], Univ. of Pa. Law School, Public Law Research Paper No. 07-15 (April 11, 2007).<br />
<br />
*Stuart W. Shulman, [https://kb.osu.edu/bitstream/handle/1811/72614/ISJLP_V1N1_111.pdf The Internet Still Might (but Probably Won’t) Change Everything: Stakeholder Views on the Future of Electronic Rulemaking], 1 J. of L. & Pol’y for the Info. Soc’y 111 (2004).<br />
*Stuart W. Shulman, [https://scholarworks.umass.edu/cgi/viewcontent.cgi?article=1003&context=erulemaking E-Rulemaking: Issues in Current Research and Practice], 28 Int’l J. Pub. Admin. 621 (2005).<br />
<br />
*Michael Tonsing, ''Two Arms! Two Arms! E-Government Is Coming!'', 51 Fed. Law. 18 (2004).<br />
<br />
*Hui Yang & Jamie Callen, ''Near Duplicate Detection for eRulemaking'', in Proceedings of the Fifth National Conference on Digital Government Research (2005).<br />
<br />
*Stephen Zavestoski & Stuart W. Shulman, ''The Internet and Environmental Decision Making: An Introduction'', 15 Org. & Env’t 323 (2002).<br />
<br />
</div><br />
<br />
===Agency Regulations===<br />
<br />
*Office of Personnel Management, Information Technology Exchange Program ([https://www.ecfr.gov/cgi-bin/text-idx?SID=1a940470f3b9226f4cdea3e05b1e17d7&mc=true&node=pt5.1.370&rgn=div5 5 C.F.R. Part 370]).<br />
<br />
==Statutory Provisions==<br />
E-Government Act of 2002<br />
<br />
*Title 44 U.S. Code, [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter35/subchapter2&edition=prelim Chapter 35, Subchapter II—Information Security]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3551&num=0&edition=prelim § 3551. Purposes]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3552&num=0&edition=prelim § 3552. Definitions]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3553&num=0&edition=prelim § 3553. Authority and functions of the Director and the Secretary]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3554&num=0&edition=prelim § 3554. Federal agency responsibilities]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3555&num=0&edition=prelim § 3555. Annual independent evaluation]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3556&num=0&edition=prelim § 3556. Federal information security incident center]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3557&num=0&edition=prelim § 3557. National security systems]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3558&num=0&edition=prelim § 3558. Effect on existing law]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3559&num=0&edition=prelim § 3559. Federal websites required to be mobile friendly]<br />
*Title 44 U.S. Code, [http://uscode.house.gov/view.xhtml?path=/prelim@title44/chapter36&edition=prelim Chapter 36—Management and Promotion of Electronic Government]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3601&num=0&edition=prelim § 3601. Definitions]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3602&num=0&edition=prelim § 3602. Office of Electronic Government]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3603&num=0&edition=prelim § 3603. Chief Information Officers Council]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3604&num=0&edition=prelim § 3604. E-Government Fund]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3605&num=0&edition=prelim § 3605. Program to encourage innovative solutions to enhance electronic Government services and processes]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3606&num=0&edition=prelim § 3606. E-Government report]<br />
*Other Provisions<br />
**[http://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title40-section305&num=0&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU0MC1zZWN0aW9uMzAx%7C%7C%7C0%7Cfalse%7Cprelim 40 U.S.C. § 305. Electronic Government and information technologies]<br />
**[http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title44-section3501&num=0&edition=prelim 44 U.S.C. § 3501 note. Paperwork Reduction Act]</div>MGluth