EO 13422
Effective Date: January 23, 2007

Responsible Office: Office of Internal Controls and Management Systems
Subject: Further Amendment to EO 12866 on Regulatory Planning and Review - REVOCATED BY EO 13497

Further Amendment to Executive Order 12866 on 
                Regulatory Planning and Review

                By the authority vested in me as President by the 
                Constitution and laws of the United States of America, 
                it is hereby ordered that Executive Order 12866 of 
                September 30, 1993, as amended, is further amended as 

Section 1. Section 1 is amended as follows:

(a) Section 1(b)(1) is amended to read as follows:

``(1) Each agency shall identify in writing the specific market failure 
(such as externalities, market power, lack of information) or other 
specific problem that it intends to address (including, where applicable, 
the failures of public institutions) that warrant new agency action, as 
well as assess the significance of that problem, to enable assessment of 
whether any new regulation is warranted.'

(b) by inserting in section 1(b)(7) after ``regulation' the words ``or 
guidance document'.

(c) by inserting in section 1(b)(10) in both places after ``regulations' 
the words ``and guidance documents'.

(d) by inserting in section 1(b)(11) after ``its regulations' the words 
``and guidance documents'.

(e) by inserting in section 1(b)(12) after ``regulations' the words ``and 
guidance documents'.

Sec. 2. Section 2 is amended as follows:

(a) by inserting in section 2(a) in both places after ``regulations' the 
words ``and guidance documents'.

(b) by inserting in section 2(b) in both places after ``regulations' the 
words ``and guidance documents'.

Sec. 3. Section 3 is amended as follows:

(a) by striking in section 3(d) ``or `rule' ' after `` `Regulation' ';

(b) by striking in section 3(d)(1) ``or rules' after ``Regulations';

(c) by striking in section 3(d)(2) ``or rules' after ``Regulations';

(d) by striking in section 3(d)(3) ``or rules' after ``Regulations';

(e) by striking in section 3(e) ``rule or' from ``final rule or 

(f) by striking in section 3(f) ``rule or' from ``rule or regulation';

(g) by inserting after section 3(f) the following:

``(g) ``Guidance document' means an agency statement of general 
applicability and future effect, other than a regulatory action, that sets 
forth a policy on a statutory, regulatory, or technical issue or an 
interpretation of a statutory or regulatory issue.

(h) ``Significant guidance document' --

(1) Means a guidance document disseminated to regulated entities or the 
general public that, for purposes of this order, may reasonably be 
anticipated to:

[[Page 2764]]

(A) Lead to an annual effect of $100 million or more or adversely affect in 
a material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities;

(B) Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency;

(C) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights or obligations of recipients thereof; 

(D) Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
order; and (2) Does not include:

(A) Guidance documents on regulations issued in accordance with the formal 
rulemaking provisions of 5 U.S.C. 556, 557;

(B) Guidance documents that pertain to a military or foreign affairs 
function of the United States, other than procurement regulations and 
regulations involving the import or export of non-defense articles and 

(C) Guidance documents on regulations that are limited to agency 
organization, management, or personnel matters; or

(D) Any other category of guidance documents exempted by the Administrator 
of OIRA.'

Sec. 4. Section 4 is amended as follows:

(a) Section 4(a) is amended to read as follows: ``The Director may convene 
a meeting of agency heads and other government personnel as appropriate to 
seek a common understanding of priorities and to coordinate regulatory 
efforts to be accomplished in the upcoming year.'

(b) The last sentence of section 4(c)(1) is amended to read as follows: 
``Unless specifically authorized by the head of the agency, no rulemaking 
shall commence nor be included on the Plan without the approval of the 
agency's Regulatory Policy Office, and the Plan shall contain at a 

(c) Section 4(c)(1)(B) is amended by inserting ``of each rule as well as 
the agency's best estimate of the combined aggregate costs and benefits of 
all its regulations planned for that calendar year to assist with the 
identification of priorities' after ``of the anticipated costs and 

(d) Section 4(c)(1)(C) is amended by inserting ``, and specific citation to 
such statute, order, or other legal authority' after ``court order'.

Sec. 5. Section 6 is amended as follows:

(a) by inserting in section 6(a)(1) ``In consultation with OIRA, each 
agency may also consider whether to utilize formal rulemaking procedures 
under 5 U.S.C. 556 and 557 for the resolution of complex determinations' 
after ``comment period of not less than 60 days.'

(b) by amending the first sentence of section 6(a)(2) to read as follows: 
``Within 60 days of the date of this Executive order, each agency head 
shall designate one of the agency's Presidential Appointees to be its 
Regulatory Policy Officer, advise OMB of such designation, and annually 
update OMB on the status of this designation.'

Sec. 6. Sections 9-11 are redesignated respectively as sections 10-12.

Sec. 7. After section 8, a new section 9 is inserted as follows:

``Sec. 9. Significant Guidance Documents. Each agency shall provide OIRA, 
at such times and in the manner specified by the Administrator of OIRA, 
with advance notification of any significant guidance documents. Each 
agency shall take such steps as are necessary for its Regulatory Policy 
Officer to ensure the agency's compliance with the requirements of this 
section. Upon the request of the Administrator, for each matter identified 
as, or determined by the Administrator to be, a significant guidance 
document, the issuing agency shall provide to

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OIRA the content of the draft guidance document, together with a brief 
explanation of the need for the guidance document and how it will meet that 
need. The OIRA Administrator shall notify the agency when additional 
consultation will be required before the issuance of the significant 
guidance document.'

Sec. 8. Newly designated section 10 is amended to read as follows:

``Sec. 10. Preservation of Agency Authority. Nothing in this order shall be 
construed to impair or otherwise affect the authority vested by law in an 
agency or the head thereof, including the authority of the Attorney General 
relating to litigation.'

                     President, George Bush

                THE WHITE HOUSE,

                    January 18, 2007.


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