5 U.S.C. § 551 — Definitions

Page 105 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 551 to any case commenced on or after October 1, 1984, and finally disposed of before the date of the enactment of this Act [Aug. 5, 1985], except that in any such case, the 30-day period referred to in section 504(a)(2) of title 5, United States Code, or section 2412(d)(1)(B) of title 28, United States Code, as the case may be, shall be deemed to commence on the date of the enactment of this Act. ‘‘(c) APPLICABILITY OF AMENDMENTS TO PRIOR BOARD OF CONTRACTS APPEALS CASES.—Section 504(b)(1)(C)(ii) of title 5, United States Code, as added by section 1(c)(2) of this Act, and section 2412(d)(2)(E) of title 28, United States Code, as added by section 2(c)(2) of this Act, shall apply to any adversary adjudication pending on or commenced on or after October 1, 1981, in which applications for fees and other expenses were timely filed and were dismissed for lack of jurisdiction.’’ EFFECTIVE DATE Pub. L. 96–481, title II, § 208, Oct. 21, 1980, 94 Stat. 2330, as amended by Pub. L. 99–80, § 5, Aug. 5, 1985, 99 Stat. 186, provided that: ‘‘This title and the amendments made by this title [see Short Title note below] shall take effect of [on] October 1, 1981, and shall apply to any adversary adjudication, as defined in section 504(b)(1)(C) of title 5, United States Code, and any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pending on, or commenced on or after, such date. Awards may be made for fees and other expenses incurred before Oc- tober 1, 1981, in any such adversary adjudication or civil action.’’ Pub. L. 96–481, title II, § 203(c), Oct. 21, 1980, 94 Stat. 2327, which provided that effective Oct. 1, 1984, this sec- tion is repealed, except that the provisions of this sec- tion shall continue to apply through final disposition of any adversary adjudication initiated before the date of repeal, was itself repealed by Pub. L. 99–80, § 6(b)(1), Aug. 5, 1985, 99 Stat. 186. SHORT TITLE Pub. L. 96–481, title II, § 201, Oct. 21, 1980, 94 Stat. 2325, provided that: ‘‘This title [enacting this section, amending section 634 of Title 15, Commerce and Trade, section 2412 of Title 28, Judiciary and Judicial Proce- dure, Rule 37 of the Federal Rules of Civil Procedure, set out in Title 28 Appendix, and section 1988 of Title 42, The Public Health and Welfare, and enacting provi- sions set out as notes under this section and section 2412 of Title 28] may be cited as the ‘Equal Access to Justice Act’.’’ TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of provisions in subsec. (e) of this section relating to annual report to Congress on the amount of fees and other expenses, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Fi- nance, and page 153 of House Document No. 103–7. TERMINATION OF ADMINISTRATIVE CONFERENCE OF UNITED STATES For termination of Administrative Conference of United States, see provision of title IV of Pub. L. 104–52, set out as a note preceding section 591 of this title. PROHIBITION ON USE OF ENERGY AND WATER DEVELOP- MENT APPROPRIATIONS TO PAY INTERVENING PARTIES IN REGULATORY OR ADJUDICATORY PROCEEDINGS Pub. L. 102–377, title V, § 502, Oct. 2, 1992, 106 Stat. 1342, provided that: ‘‘None of the funds in this Act or subsequent Energy and Water Development Appropria- tions Acts shall be used to pay the expenses of, or oth- erwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such Acts.’’ REVIVAL OF PREVIOUSLY REPEALED PROVISIONS Pub. L. 99–80, § 6, Aug. 5, 1985, 99 Stat. 186, provided that: ‘‘(a) REVIVAL OF CERTAIN EXPIRED PROVISIONS.—Sec- tion 504 of title 5, United States Code, and the item re- lating to that section in the table of sections of chapter 5 of title 5, United States Code, and subsection (d) of section 2412 of title 28, United States Code, shall be ef- fective on or after the date of the enactment of this Act [Aug. 5, 1985] as if they had not been repealed by sec- tions 203(c) and 204(c) of the Equal Access to Justice Act [Pub. L. 96–481]. ‘‘(b) REPEALS.— ‘‘(1) Section 203(c) of the Equal Access to Justice Act [which repealed this section] is hereby repealed. ‘‘(2) Section 204(c) of the Equal Access to Justice Act [which repealed section 2412(d) of title 28] is here- by repealed.’’ CONGRESSIONAL FINDINGS AND PURPOSES Pub. L. 96–481, title II, § 202, Oct. 21, 1980, 94 Stat. 2325, provided that: ‘‘(a) The Congress finds that certain individuals, part- nerships, corporations, and labor and other organiza- tions may be deterred from seeking review of, or de- fending against, unreasonable governmental action be- cause of the expense involved in securing the vindica- tion of their rights in civil actions and in administra- tive proceedings. ‘‘(b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situa- tions. ‘‘(c) It is the purpose of this title [see Short Title note above]— ‘‘(1) to diminish the deterrent effect of seeking re- view of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States; and ‘‘(2) to insure the applicability in actions by or against the United States of the common law and statutory exceptions to the ‘American rule’ respect- ing the award of attorney fees.’’ LIMITATION ON PAYMENTS Pub. L. 96–481, title II, § 207, Oct. 21, 1980, 94 Stat. 2330, which provided that the payment of judgments, fees and other expenses in the same manner as the payment of final judgments as provided in this Act [probably should be ‘‘this title’’, see Short Title note above] would be effective only to the extent and in such amounts as are provided in advance in appropriation Acts, was repealed by Pub. L. 99–80, § 4, Aug. 5, 1985, 99 Stat. 186. SUBCHAPTER II—ADMINISTRATIVE PROCEDURE Statutory Notes and Related Subsidiaries SHORT TITLE The provisions of this subchapter and chapter 7 of this title were originally enacted by act June 11, 1946, ch. 324, 60 Stat. 237, popularly known as the ‘‘Adminis- trative Procedure Act’’. That Act was repealed as part of the general revision of this title by Pub. L. 89–554 and its provisions incorporated into this subchapter and chapter 7 hereof. § 551. Definitions For the purpose of this subchapter— (1) ‘‘agency’’ means each authority of the Government of the United States, whether or not it is within or subject to review by an- other agency, but does not include— (A) the Congress; (B) the courts of the United States; Page 106 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 551 1 See References in Text note below. (C) the governments of the territories or possessions of the United States; (D) the government of the District of Co- lumbia; or except as to the requirements of section 552 of this title— (E) agencies composed of representatives of the parties or of representatives of organi- zations of the parties to the disputes deter- mined by them; (F) courts martial and military commis- sions; (G) military authority exercised in the field in time of war or in occupied territory; or (H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; subchapter II of chapter 471 of title 49; or sections 1884, 1891–1902, and former section 1641(b)(2), of title 50, appendix; 1 (2) ‘‘person’’ includes an individual, partner- ship, corporation, association, or public or pri- vate organization other than an agency; (3) ‘‘party’’ includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a per- son or agency admitted by an agency as a party for limited purposes; (4) ‘‘rule’’ means the whole or a part of an agency statement of general or particular ap- plicability and future effect designed to imple- ment, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and in- cludes the approval or prescription for the fu- ture of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing; (5) ‘‘rule making’’ means agency process for formulating, amending, or repealing a rule; (6) ‘‘order’’ means the whole or a part of a final disposition, whether affirmative, nega- tive, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing; (7) ‘‘adjudication’’ means agency process for the formulation of an order; (8) ‘‘license’’ includes the whole or a part of an agency permit, certificate, approval, reg- istration, charter, membership, statutory ex- emption or other form of permission; (9) ‘‘licensing’’ includes agency process re- specting the grant, renewal, denial, revoca- tion, suspension, annulment, withdrawal, limi- tation, amendment, modification, or condi- tioning of a license; (10) ‘‘sanction’’ includes the whole or a part of an agency— (A) prohibition, requirement, limitation, or other condition affecting the freedom of a person; (B) withholding of relief; (C) imposition of penalty or fine; (D) destruction, taking, seizure, or with- holding of property; (E) assessment of damages, reimburse- ment, restitution, compensation, costs, charges, or fees; (F) requirement, revocation, or suspension of a license; or (G) taking other compulsory or restrictive action; (11) ‘‘relief’’ includes the whole or a part of an agency— (A) grant of money, assistance, license, au- thority, exemption, exception, privilege, or remedy; (B) recognition of a claim, right, immu- nity, privilege, exemption, or exception; or (C) taking of other action on the applica- tion or petition of, and beneficial to, a per- son; (12) ‘‘agency proceeding’’ means an agency process as defined by paragraphs (5), (7), and (9) of this section; (13) ‘‘agency action’’ includes the whole or a part of an agency rule, order, license, sanc- tion, relief, or the equivalent or denial there- of, or failure to act; and (14) ‘‘ex parte communication’’ means an oral or written communication not on the pub- lic record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this sub- chapter. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381; Pub. L. 94–409, § 4(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L. 103–272, § 5(a), July 5, 1994, 108 Stat. 1373; Pub. L. 111–350, § 5(a)(2), Jan. 4, 2011, 124 Stat. 3841.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large (1) ............. 5 U.S.C. 1001(a). June 11, 1946, ch. 324, § 2(a), 60 Stat. 237. Aug. 8, 1946, ch. 870, § 302, 60 Stat. 918. Aug. 10, 1946, ch. 951, § 601, 60 Stat. 993. Mar. 31, 1947, ch. 30, § 6(a), 61 Stat. 37. June 30, 1947, ch. 163, § 210, 61 Stat. 201. Mar. 30, 1948, ch. 161, § 301, 62 Stat. 99. (2)–(13) ....... 5 U.S.C. 1001 (less (a)). June 11, 1946, ch. 324, § 2 (less (a)), 60 Stat. 237. In paragraph (1), the sentence ‘‘Nothing in this Act shall be construed to repeal delegations of authority as provided by law,’’ is omitted as surplusage since there is nothing in the Act which could reasonably be so con- strued. In paragraph (1)(G), the words ‘‘or naval’’ are omitted as included in ‘‘military’’. In paragraph (1)(H), the words ‘‘functions which by law expire on the termination of present hostilities, within any fixed period thereafter, or before July 1, 1947’’ are omitted as executed. Reference to the ‘‘Selec- tive Training and Service Act of 1940’’ is omitted as that Act expired Mar. 31, 1947. Reference to the ‘‘Sugar Control Extension Act of 1947’’ is omitted as that Act expired on Mar. 31, 1948. References to the ‘‘Housing and Rent Act of 1947, as amended’’ and the ‘‘Veterans’ Emergency Housing Act of 1946’’ have been consoli- dated as they are related. The reference to former sec- tion 1641(b)(2) of title 50, appendix, is retained notwith- standing its repeal by § 111(a)(1) of the Act of Sept. 21, 1961, Pub. L. 87–256, 75 Stat. 538, since § 111(c) of the Act Page 107 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 551 provides that a reference in other Acts to a provision of law repealed by § 111(a) shall be considered to be a reference to the appropriate provisions of Pub. L. 87–256. In paragraph (2), the words ‘‘of any character’’ are omitted as surplusage. In paragraph (3), the words ‘‘and a person or agency admitted by an agency as a party for limited purposes’’ are substituted for ‘‘but nothing herein shall be con- strued to prevent an agency from admitting any person or agency as a party for limited purposes’’. In paragraph (9), a comma is supplied between the words ‘‘limitation’’ and ‘‘amendment’’ to correct an editorial error of omission. In paragraph (10)(C), the words ‘‘of any form’’ are omitted as surplusage. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes REFERENCES IN TEXT Sections 1884 and 1891–1902 of title 50, appendix, re- ferred to in par. (1)(H), were a part of the various Hous- ing and Rent Acts which were classified to section 1881 et seq. of the former Appendix to Title 50, War and Na- tional Defense, and had been repealed or omitted from the Code as executed prior to the elimination of the Ap- pendix to Title 50. See Elimination of Title 50, Appen- dix note preceding section 1 of Title 50. Section 1641 of title 50, appendix, referred to in par. (1)(H), was re- pealed by Pub. L. 87–256, § 111(a)(1), Sept. 21, 1961, 75 Stat. 538. See Historical and Revision Note above. CODIFICATION Section 551 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2242 of Title 7, Agriculture. AMENDMENTS 2011—Par. (1)(H). Pub. L. 111–350 struck out ‘‘chapter 2 of title 41;’’ after ‘‘title 12;’’. 1994—Par. (1)(H). Pub. L. 103–272 substituted ‘‘sub- chapter II of chapter 471 of title 49; or sections’’ for ‘‘or sections 1622,’’. 1976—Par. (14). Pub. L. 94–409 added par. (14). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title. STATUTORY ADMINISTRATIVE PAY-AS-YOU-GO Pub. L. 118–5, div. B, title III, June 3, 2023, 137 Stat. 31, provided that: ‘‘SEC. 261. SHORT TITLE. ‘‘This title may be cited as the ‘Administrative Pay- As-You-Go Act of 2023’. ‘‘SEC. 262. DEFINITIONS. ‘‘In this title— ‘‘(1) the term ‘administrative action’ means a ‘rule’ as defined in section 804(3) of title 5, United States Code; ‘‘(2) the term ‘agency’ means any authority of the United States that is an ‘agency’ under section 3502(1) of title 44, United States Code, other than those con- sidered to be independent regulatory agencies, as de- fined in section 3502(5) of such title; ‘‘(3) the term ‘covered discretionary administrative action’ means a discretionary administrative action that would affect direct spending; ‘‘(4) the term ‘direct spending’ has the meaning given that term in section 250(c) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 900(c)); ‘‘(5) the term ‘Director’ means the Director of the Office of Management and Budget; ‘‘(6) the term ‘discretionary administrative ac- tion’— ‘‘(A) means any administrative action that is not required by law; and ‘‘(B) includes an administrative action required by law for which an agency has discretion in the manner in which to implement the administrative action; and ‘‘(7) the term ‘increase direct spending’ means that the amount of direct spending would increase relative to— ‘‘(A) the most recently submitted projection of the amount of direct spending presented in baseline estimates as defined in section 257 of the Balanced Budget and Emergency Deficit Control Act of 1985 [2 U.S.C. 907], as amended, under— ‘‘(i) the budget of the President submitted under section 1105 of title 31, United States Code; or ‘‘(ii) the supplemental summary of the budget submitted under section 1106 of title 31, United States Code; ‘‘(B) with respect to a discretionary administra- tive action that is incorporated into the applicable projection described in subparagraph (A) and for which a proposal has not been submitted under sec- tion 263(a)(2)(A), a projection of the amount of di- rect spending if no administrative action were taken; or ‘‘(C) with respect to a discretionary administra- tive action described in paragraph (6)(B), a projec- tion of the amount of direct spending under the least costly implementation option reasonably identifiable by the agency that meets the require- ments under the statute. ‘‘SEC. 263. REQUIREMENTS FOR ADMINISTRATIVE ACTIONS THAT AFFECT DIRECT SPENDING. ‘‘(a) DISCRETIONARY ADMINISTRATIVE ACTIONS.— ‘‘(1) IN GENERAL.—Before an agency may finalize any covered discretionary administrative action, the head of the agency shall submit to the Director for review written notice regarding the covered discre- tionary administrative action, which shall include an estimate of the budgetary effects of the covered dis- cretionary administrative action. ‘‘(2) INCREASING DIRECT SPENDING.— ‘‘(A) IN GENERAL.—If the covered discretionary ad- ministrative action would increase direct spending, the written notice submitted by the head of the agency under paragraph (1) shall include a proposal to undertake 1 or more other administrative ac- tions that would provide a reduction in direct spending greater than or equal to the increase in di- rect spending attributable to the covered discre- tionary administrative action. ‘‘(B) REVIEW.— ‘‘(i) IN GENERAL.—The Director shall determine whether the reduction in direct spending in a pro- posal in a written notice from an agency under subparagraph (A) is greater than or equal to the increase in direct spending attributable to the covered discretionary administrative action to which the written notice relates. ‘‘(ii) NO OFFSET.—If the written notice regard- ing a proposed covered discretionary administra- tive action that would increase direct spending does not include a proposal to offset the increased direct spending as determined in clause (i), the Director shall return the written notice to the agency for resubmission in accordance with this title. ‘‘(b) NONDISCRETIONARY ACTIONS.—If an agency deter- mines that an administrative action that would in- crease direct spending is required by law and therefore is not a covered discretionary administrative action, before the agency finalizes that administrative action, the head of the agency shall— Page 108 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 551 ‘‘(1) submit to the Director a written opinion by the general counsel of the agency, or the equivalent em- ployee of the agency, explaining that legal conclu- sion; ‘‘(2) submit to the Director a projection of the amount of direct spending under the least costly im- plementation option reasonably identifiable by the agency that meets the requirements under the stat- ute; and ‘‘(3) consult with the Director regarding implemen- tation of the administrative action. ‘‘(c) PROJECTIONS.—Any projection for purposes of this title shall be conducted in accordance with Office of Management and Budget Circular A–11, or any suc- cessor thereto. ‘‘SEC. 264. ISSUANCE OF ADMINISTRATIVE GUID- ANCE. ‘‘Not later than 90 days after the date of enactment of this Act [June 3, 2023], the Director shall issue in- structions regarding the implementation of this title, including how covered discretionary administrative ac- tions that increase direct spending and nontax receipts will be evaluated. ‘‘SEC. 265. WAIVER. ‘‘(a) IN GENERAL.—The Director may waive the re- quirements of section 263 if the Director concludes that the waiver— ‘‘(1) is necessary for the delivery of essential serv- ices; or ‘‘(2) is necessary for effective program delivery. ‘‘(b) PUBLICATION.—Any waiver determination under subsection (a) shall be published in the Federal Reg- ister. ‘‘SEC. 266. EXEMPTION. ‘‘This title shall not apply to administrative actions with direct spending cost of less than— ‘‘(1) $1,000,000,000 over the 10-year period beginning with the current year; or ‘‘(2) $100,000,000 in any given year during such 10- year period. ‘‘SEC. 267. JUDICIAL REVIEW. ‘‘No determination, finding, action, or omission under this title shall be subject to judicial review. ‘‘SEC. 268. SUNSET. ‘‘This title shall expire on December 31, 2024. ‘‘SEC. 269. GAO REPORT. ‘‘Within 180 days of the date of enactment of this Act [June 3, 2023], the Comptroller General shall issue a re- port on the implementation of this title. ‘‘SEC. 270. CONGRESSIONAL REVIEW ACT COMPLI- ANCE ASSESSMENT. [Amended section 801 of this title.]’’ STUDY AND REPORTS ON ADMINISTRATIVE SUBPOENAS Pub. L. 106–544, § 7, Dec. 19, 2000, 114 Stat. 2719, pro- vided that: ‘‘(a) STUDY ON USE OF ADMINISTRATIVE SUBPOENAS.— Not later than December 31, 2001, the Attorney General, in consultation with the Secretary of the Treasury, shall complete a study on the use of administrative subpoena power by executive branch agencies or enti- ties and shall report the findings to the Committees on the Judiciary of the Senate and the House of Rep- resentatives. Such report shall include— ‘‘(1) a description of the sources of administrative subpoena power and the scope of such subpoena power within executive branch agencies; ‘‘(2) a description of applicable subpoena enforce- ment mechanisms; ‘‘(3) a description of any notification provisions and any other provisions relating to safeguarding privacy interests; ‘‘(4) a description of the standards governing the issuance of administrative subpoenas; and ‘‘(5) recommendations from the Attorney General regarding necessary steps to ensure that administra- tive subpoena power is used and enforced consistently and fairly by executive branch agencies. ‘‘(b) REPORT ON FREQUENCY OF USE OF ADMINISTRA- TIVE SUBPOENAS.— ‘‘(1) IN GENERAL.—The Attorney General and the Secretary of the Treasury shall report in January of each year to the Committees on the Judiciary of the Senate and the House of Representatives on the num- ber of administrative subpoenas issued by them under this section and the identity of the agency or compo- nent of the Department of Justice or the Department of the Treasury issuing the subpoena and imposing the charges. ‘‘(2) EXPIRATION.—The reporting requirement of this subsection shall terminate in 3 years after the date of the enactment of this section [Dec. 19, 2000].’’ Executive Documents EXECUTIVE ORDER NO. 13892 Ex. Ord. No. 13892, Oct. 9, 2019, 84 F.R. 55239, which re- lated to civil administrative enforcement and adjudica- tion, was revoked by Ex. Ord. No. 13992, § 2, Jan. 20, 2021, 86 F.R. 7049, set out below. EXECUTIVE ORDER NO. 13979 Ex. Ord. No. 13979, Jan. 18, 2021, 86 F.R. 6813, which re- quired senior appointee participation in agency rule- making, was revoked by Ex. Ord. No. 14018, § 1, Feb. 24, 2021, 86 F.R. 11855. EX. ORD. NO. 13992. REVOCATION OF CERTAIN EXECUTIVE ORDERS CONCERNING FEDERAL REGULATION Ex. Ord. No. 13992, Jan. 20, 2021, 86 F.R. 7049, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered that: SECTION 1. Policy. It is the policy of my Administra- tion to use available tools to confront the urgent chal- lenges facing the Nation, including the coronavirus dis- ease 2019 (COVID–19) pandemic, economic recovery, ra- cial justice, and climate change. To tackle these chal- lenges effectively, executive departments and agencies (agencies) must be equipped with the flexibility to use robust regulatory action to address national priorities. This order revokes harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront these problems, and empowers agencies to use appropriate regulatory tools to achieve these goals. SEC. 2. Revocation of Orders. Executive Order 13771 of January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs) [former 5 U.S.C. 601 note], Executive Order 13777 of February 24, 2017 (Enforcing the Regu- latory Reform Agenda) [former 5 U.S.C. 601 note], Exec- utive Order 13875 of June 14, 2019 (Evaluating and Im- proving the Utility of Federal Advisory Committees) [former 5 U.S.C. App. note], Executive Order 13891 of October 9, 2019 (Promoting the Rule of Law Through Improved Agency Guidance Documents) [former 5 U.S.C. 601 note], Executive Order 13892 of October 9, 2019 (Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Ad- judication) [formerly set out above], and Executive Order 13893 of October 10, 2019 (Increasing Government Accountability for Administrative Actions by Reinvig- orating Administrative PAYGO) [former 5 U.S.C. 601 note], are hereby revoked. SEC. 3. Implementation. The Director of the Office of Management and Budget and the heads of agencies shall promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the Executive Orders identi- fied in section 2 of this order, as appropriate and con- sistent with applicable law, including the Administra- tive Procedure Act, 5 U.S.C. 551 et seq. If in any case such rescission cannot be finalized immediately, the Director and the heads of agencies shall promptly take steps to provide all available exemptions authorized by any such orders, rules, regulations, guidelines, or poli- Page 109 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 552 cies, as appropriate and consistent with applicable law. In addition, any personnel positions, committees, task forces, or other entities established pursuant to the Ex- ecutive Orders identified in section 2 of this order, in- cluding the regulatory reform officer positions and reg- ulatory reform task forces established by sections 2 and 3 of Executive Order 13777 [former 5 U.S.C. 601 note], shall be abolished, as appropriate and consistent with applicable law. SEC. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive de- partment or agency, or the head thereof; or (ii) the functions of the Director of the Office of Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This order shall be implemented in a manner con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able 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. J.R. BIDEN, JR. § 552. Public information; agency rules, opinions, orders, records, and proceedings (a) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and cur- rently publish in the Federal Register for the guidance of the public— (A) descriptions of its central and field orga- nization 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 infor- mation, make submittals or requests, or ob- tain decisions; (B) statements of the general course and method by which its functions are channeled and determined, including the nature and re- quirements of all formal and informal proce- dures available; (C) 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 examina- tions; (D) 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; and (E) each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of per- sons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. (2) Each agency, in accordance with published rules, shall make available for public inspection in an electronic format— (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpre- tations which have been adopted by the agen- cy and are not published in the Federal Reg- ister; (C) administrative staff manuals and in- structions to staff that affect a member of the public; (D) copies of all records, regardless of form or format— (i) that have been released to any person under paragraph (3); and (ii)(I) 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; or (II) that have been requested 3 or more times; and (E) a general index of the records referred to under subparagraph (D); unless the materials are promptly published and copies offered for sale. For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommuni- cations or, if computer telecommunications means have not been established by the agency, by other electronic means. To the extent re- quired to prevent a clearly unwarranted inva- sion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, inter- pretation, staff manual, instruction, or copies of records referred to in subparagraph (D). How- ever, in each case the justification for the dele- tion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemp- tion in subsection (b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made. Each agen- cy shall also maintain and make available for public inspection in an electronic format cur- rent indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or pub- lished. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supple- ments thereto unless it determines by order published in the Federal Register that the publi- cation would be unnecessary and impracticable, in which case the agency shall nonetheless pro- vide copies of such index on request at a cost not to exceed the direct cost of duplication. Each agency shall make the index referred to in sub- paragraph (E) available by computer tele- communications by December 31, 1999. A final order, opinion, statement of policy, interpreta- tion, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if— (i) it has been indexed and either made avail- able or published as provided by this para- graph; or