[Weekly Compilation of Presidential Documents Volume 43, Number 3 (Monday, January 22, 2007)]
[Pages 48-50]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13422--Further Amendment to Executive Order 12866 on 
Regulatory Planning and Review

January 18, 2007

    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 follows:
    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'';

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    (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 
regulation'';
    (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:
(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; or
(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 services;
(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 minimum:''.
    (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 benefits''.
    (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

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    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 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.''
                                                George W. Bush
The White House,
January 18, 2007.

[Filed with the Office of the Federal Register, 8:45 a.m., January 22, 
2007]

Note: This Executive order will be published in the Federal Register on 
January 23.