Proper Consideration of Small Entities in Agency Rulemaking

Executive Order 13272 of August 13, 2002

Proper Consideration of Small Entities in Agency
Rulemaking

By the authority vested in me as President by the
Constitution and the laws of the United States of
America, it is hereby ordered as follows:

Section 1. General Requirements. Each agency shall
establish procedures and policies to promote compliance
with the Regulatory Flexibility Act, as amended (5
U.S.C. 601 et seq.) (the “Act”). Agencies shall
thoroughly review draft rules to assess and take
appropriate account of the potential impact on small
businesses, small governmental jurisdictions, and small
organizations, as provided by the Act. The Chief
Counsel for Advocacy of the Small Business
Administration (Advocacy) shall remain available to
advise agencies in performing that review consistent
with the provisions of the Act.

Sec. 2. Responsibilities of Advocacy. Consistent with
the requirements of the Act, other applicable law, and
Executive Order 12866 of September 30, 1993, as
amended, Advocacy:

    (a) shall notify agency heads from time to time of
the requirements of the Act, including by issuing
notifications with respect to the basic requirements of
the Act within 90 days of the date of this order;
    (b) shall provide training to agencies on
compliance with the Act; and
    (c) may provide comment on draft rules to the
agency that has proposed or intends to propose the
rules and to the Office of Information and Regulatory
Affairs of the Office of Management and Budget (OIRA).

Sec. 3. Responsibilities of Federal Agencies.
Consistent with the requirements of the Act and
applicable law, agencies shall:

    (a) Within 180 days of the date of this order,
issue written procedures and policies, consistent with
the Act, to ensure that the potential impacts of
agencies' draft rules on small businesses, small
governmental jurisdictions, and small organizations are
properly considered during the rulemaking process.
Agency heads shall submit, no later than 90 days from
the date of this order, their written procedures and
policies to Advocacy for comment. Prior to issuing
final procedures and policies, agencies shall consider
any such comments received within 60 days from the date
of the submission of the agencies' procedures and
policies to Advocacy. Except to the extent otherwise
specifically provided by statute or Executive Order,
agencies shall make the final procedures and policies
available to the public through the Internet or other
easily accessible means;
    (b) Notify Advocacy of any draft rules that may
have a significant economic impact on a substantial
number of small entities under the Act. Such
notifications shall be made (i) when the agency submits
a draft rule to OIRA under Executive Order 12866 if
that order requires such submission, or (ii) if no
submission to OIRA is so required, at a reasonable time
prior to publication of the rule by the agency; and
    (c) Give every appropriate consideration to any
comments provided by Advocacy regarding a draft rule.
Consistent with applicable law and appropriate
protection of executive deliberations and legal
privileges, an agency shall include, in any explanation
or discussion accompanying publication in the Federal
Register of a final rule, the agency's response to any
written comments submitted by Advocacy on the proposed
rule that preceded the

final rule; provided, however, that such inclusion is
not required if the head of the agency certifies that
the public interest is not served thereby.

Agencies and Advocacy may, to the extent permitted by
law, engage in an exchange of data and research, as
appropriate, to foster the purposes of the Act.

Sec. 4. Definitions. Terms defined in section 601 of
title 5, United States Code, including the term
“agency,” shall have the same meaning in this order.

Sec. 5. Preservation of Authority. Nothing in this
order shall be construed to impair or affect the
authority of the Administrator of the Small Business
Administration to supervise the Small Business
Administration as provided in the first sentence of
section 2(b)(1) of Public Law 85-09536 (15 U.S.C.
633(b)(1)).

Sec. 6. Reporting. For the purpose of promoting
compliance with this order, Advocacy shall submit a
report not less than annually to the Director of the
Office of Management and Budget on the extent of
compliance with this order by agencies.

Sec. 7. Confidentiality. Consistent with existing law,
Advocacy may publicly disclose information that it
receives from the agencies in the course of carrying
out this order only to the extent that such information
already has been lawfully and publicly disclosed by
OIRA or the relevant rulemaking agency.

Sec. 8. Judicial Review. This order is intended only to
improve the internal management of the Federal
Government. This order is not intended to, and does
not, create any right or benefit, substantive or
procedural, enforceable at law or equity, against the
United States, its departments, agencies, or other
entities, its officers or employees, or any other
person.

    (Presidential Sig.)B

THE WHITE HOUSE,

     August 13, 2002.