EX. ORD. NO. 12803. INFRASTRUCTURE PRIVATIZATION
Ex. Ord. No. 12803, Apr. 30, 1992, 57 F.R. 19063, provided:
By the authority vested in me as President by the Constitution
and the laws of the United States of America, and in order to
ensure that the United States achieves the most beneficial economic
use of its resources, it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) "Privatization" means the disposition or transfer of an
infrastructure asset, such as by sale or by long-term lease, from a
State or local government to a private party.
(b) "Infrastructure asset" means any asset financed in whole or
in part by the Federal Government and needed for the functioning of
the economy. Examples of such assets include, but are not limited
to: roads, tunnels, bridges, electricity supply facilities, mass
transit, rail transportation, airports, ports, waterways, water
supply facilities, recycling and wastewater treatment facilities,
solid waste disposal facilities, housing, schools, prisons, and
hospitals.
(c) "Originally authorized purposes" means the general objectives
of the original grant program; however, the term is not intended to
include every condition required for a grantee to have obtained the
original grant.
(d) "Transfer price" means: (i) the amount paid or to be paid by
a private party for an infrastructure asset, if the asset is
transferred as a result of competitive bidding; or (ii) the
appraised value of an infrastructure asset, as determined by the
head of the executive department or agency and the Director of the
Office of Management and Budget, if the asset is not transferred as
a result of competitive bidding.
(e) "State and local governments" means the government of any
State of the United States, the District of Columbia, any
commonwealth, territory, or possession of the United States, and
any county, municipality, city, town, township, local public
authority, school district, special district, intrastate district,
regional or interstate governmental entity, council of governments,
and any agency or instrumentality of a local government, and any
federally recognized Indian Tribe.
Sec. 2. Fundamental Principles. Executive departments and
agencies shall be guided by the following objectives and
principles: (a) Adequate and well-maintained infrastructure is
critical to economic growth. Consistent with the principles of
federalism enumerated in Executive Order No. 12612 [formerly set
out under section 601 of Title 5, Government Organization and
Employees], and in order to allow the private sector to provide for
infrastructure modernization and expansion, State and local
governments should have greater freedom to privatize infrastructure
assets.
(b) Private enterprise and competitively driven improvements are
the foundation of our Nation's economy and economic growth. Federal
financing of infrastructure assets should not act as a barrier to
the achievement of economic efficiencies through additional private
market financing or competitive practices, or both.
(c) State and local governments are in the best position to
assess and respond to local needs. State and local governments
should, subject to assuring continued compliance with Federal
requirements that public use be on reasonable and nondiscriminatory
terms, have maximum possible freedom to make decisions concerning
the maintenance and disposition of their federally financed
infrastructure assets.
(d) User fees are generally more efficient than general taxes as
a means to support infrastructure assets. Privatization
transactions should be structured so as not to result in
unreasonable increases in charges to users.
Sec. 3. Privatization Initiative. To the extent permitted by law,
the head of each executive department and agency shall undertake
the following actions:
(a) Review those procedures affecting the management and
disposition of federally financed infrastructure assets owned by
State and local governments and modify those procedures to
encourage appropriate privatization of such assets consistent with
this order;
(b) Assist State and local governments in their efforts to
advance the objectives of this order; and
(c) Approve State and local governments' requests to privatize
infrastructure assets, consistent with the criteria in section 4 of
this order and, where necessary, grant exceptions to the
disposition requirements of the "Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and
Local Governments" common rule, or other relevant rules or
regulations, for infrastructure assets; provided that the transfer
price shall be distributed, as paid, in the following manner: (i)
State and local governments shall first recoup in full the
unadjusted dollar amount of their portion of total project costs
(including any transaction and fix-up costs they incur) associated
with the infrastructure asset involved; (ii) if proceeds remain,
then the Federal Government shall recoup in full the amount of
Federal grant awards associated with the infrastructure asset, less
the applicable share of accumulated depreciation on such asset
(calculated using the Internal Revenue Service accelerated
depreciation schedule for the categories of assets in question);
and (iii) finally, the State and local governments shall keep any
remaining proceeds.
Sec. 4. Criteria. To the extent permitted by law, the head of an
executive department or agency shall approve a request in
accordance with section 3(c) of this order only if the grantee: (a)
Agrees to use the proceeds described in section 3(c)(iii) of this
order only for investment in additional infrastructure assets
(after public notice of the proposed investment), or for debt or
tax reduction; and
(b) Demonstrates that a market mechanism, legally enforceable
agreement, or regulatory mechanism will ensure that: (i) the
infrastructure asset or assets will continue to be used for their
originally authorized purposes, as long as needed for those
purposes, even if the purchaser becomes insolvent or is otherwise
hindered from fulfilling the originally authorized purposes; and
(ii) user charges will be consistent with any current Federal
conditions that protect users and the public by limiting the
charges.
Sec. 5. Government-wide Coordination and Review. In implementing
Executive Order Nos. 12291 and 12498 [formerly set out under
section 601 of Title 5, Government Organization and Employees] and
OMB Circular No. A-19, the Office of Management and Budget, to the
extent permitted by law and consistent with the provisions of those
authorities, shall take action to ensure that the policies of the
executive department and agencies are consistent with the
principles, criteria, and requirements of this order. The Office of
Management and Budget shall review the results of implementing this
order and report thereon to the President 1 year after the date of
this order.
Sec. 6. Preservation of Existing Authority. Nothing in this order
is in any way intended to limit any existing authority of the heads
of executive departments and agencies to approve privatization
proposals that are otherwise consistent with law.
Sec. 7. Judicial Review. This order is intended only to improve
the internal management of the executive branch, and is not
intended to create any right or benefit, substantive or procedural,
enforceable by a party against the United States, its agencies or
instrumentalities, its officers or employees, or any other person.
George Bush.
SOURCE: http://uscode.house.gov/download/pls/31C5.txt
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