Ensuring Democratic Accountability in Agency Rulemaking

Executive Order 13979 of January 18, 2021

Ensuring Democratic Accountability 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. Purpose. American democracy operates on the
principle of the consent of the governed. Regular
elections for the Congress and the President and Vice
President of the United States are designed to ensure
that the officials responsible for making and executing
the law are held accountable to the American people.
The President chooses Federal agency heads who exercise
executive authority and implement his regulatory
agenda. The American people, in electing the President,
thereby have a role in choosing the individuals who
govern them.

However, some agencies have chosen to blur these lines
of democratic accountability by allowing career
officials to authorize, approve, and serve as the final
word on regulations. This practice transfers the power
to set rules governing Americans' daily lives from the
President, acting through his executive subordinates,
to officials insulated from the accountability that
national elections bring. This practice undermines the
power of the American people to choose who governs them
and I am directing steps to end it.

Sec. 2. Rulemaking by Senior Appointees. (a) To the
extent permitted by law, the head of each agency shall:

(i) require that agency rules promulgated under section 553 of title 5,
United States Code (section 553), must be signed by a senior appointee; and

(ii) require that only senior appointees may initiate the rulemaking
process for agency rules promulgated under section 553 or may approve the
agency's regulatory agenda.

    (b) Subsection (a) of this section shall not apply
if the agency head:

(i) determines that compliance with this section would impede public safety
or security; and

(ii) submits to the Administrator of the Office of Information and
Regulatory Affairs (Administrator) within the Office of Management and
Budget a notification disclosing the reasons for the exemption and
publishes such notification, consistent with public safety, security, and
privacy interests, in the Federal Register.

    (c) An agency head may not delegate authority to
make the determination allowed by subsection (b) of
this section.
    (d) The head of each agency shall ensure that the
issuance of future agency rules promulgated under
section 553 adheres to the requirements of this
section.

Sec. 3. Review of Existing Delegations of Rulemaking
Authority. Within 180 days of the date of this order,
the head of each agency shall, to the extent permitted
by law:

    (a) review delegations of authority regarding
rulemaking and make any revisions necessary to ensure
that such delegations are consistent with section 2 of
this order; and
    (b) amend agency regulations governing agency
management and procedure to incorporate the
requirements of section 2 of this order.

Sec. 4. Review of Existing Rules. (a) Within 90 days of
the date of this order, the head of each agency shall
review all significant rules the agency has issued over
the last 12 years, and any other rules identified by
the Administrator, to determine whether the rule was
issued by a senior appointee. For good cause shown, the
Administrator may authorize an extension of the period
within which an agency shall conduct such review.

    (b) Within 120 days of the date of this order, the
head of each agency shall provide a report to the
President, through the Administrator, summarizing the
findings of the review. For good cause shown, the
Administrator may authorize an extension of the
deadline to provide such report.

Sec. 5. Definitions. For the purposes of this order,
the term:

    (a) “agency” has the meaning given that term in
section 3(b) of Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), as amended, or
any successor order; except that for purposes of this
order:

(i) the term shall include the Consumer Financial Protection Bureau; and

(ii) the term shall not include the Federal Bureau of Prisons of the
Department of Justice;

    (b) “senior appointee” means an individual
appointed by the President, or performing the functions
and duties of an office that requires appointment by
the President, or a non-career member of the Senior
Executive Service (or equivalent agency system);
    (c) “significant rule” means any rule that is
also a “significant regulatory action” as defined in
section 3(f) of Executive Order 12866, as amended, or
any successor order; and
    (d) “rule” has the meaning given that term in
section 551(4) of title 5, United States Code, except
that such term does not include any rule of agency
organization, procedure, or practice that does not
substantially affect the rights or obligations of non-
agency parties.

Sec. 6. Implementation. The Administrator shall provide
guidance on the implementation of this order and shall
monitor agency compliance with the order.

Sec. 7. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or
the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.

    (b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.

    (c) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.

    (Presidential Sig.)

THE WHITE HOUSE,

    January 18, 2021.