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Freedom of Information Act has no legal effect on the Office of Administration

This document is scheduled to be published in the
Federal Register on 03/17/2015 and available online at
http://federalregister.gov/a/2015-05899, and on FDsys.gov

2015-05899(402kPDF)


3215-F5
EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION
3 CFR Part 101
5 CFR Chapter XV
RIN 0300-AA00
Removal of Published Rules to Align Published Policy with Current
Sources of Law
AGENCY: Executive Office of the President, Office of Administration.
ACTION: Final rule.
SUMMARY: The Executive Office of the President, Office of
Administration, is removing regulations from the Code of Federal
Regulations related to the status of records created and maintained by
the Executive Office of the President. This action is being taken in
order to align Office of Administration policy with well-settled legal
interpretations of the Office of Administration’s status under Federal
law and Executive Orders, including the Freedom of Information Act, the
Privacy Act of 1974, and Executive Order 13526. The Office of
Administration, as an entity whose sole function is to advise and
assist the President of the United States, is not an agency under the
Freedom of Information Act or the Privacy Act of 1974, nor does its
implementation of Executive Order 13526 affect members of the public.
Accordingly, the provisions of the Code of Federal Regulations to be
removed are without legal effect.
DATES: This rule is effective [Insert date of publication in the
Federal Register].
FOR FURTHER INFORMATION CONTACT: Hugh L. Brady, General Counsel,
Executive Office of the President, Office of Administration, 202-395-
1268.
SUPPLEMENTARY INFORMATION: The Executive Office of the President,
Office of Administration, removes the following provisions from the
Code of Federal Regulations: Chapter XV, title 5, comprising 5 CFR
parts 2500, 2502, and 2504; and 3 CFR 101.3. This action is being taken
in order to implement well-settled legal interpretations of the Office
of Administration’s status under Federal law and Executive Orders,
including the Freedom of Information Act, the Privacy Act of 1974, and
Executive Order 13526. The Office of Administration, as an entity whose
sole function is to advise and assist the President of the United
States, is not an agency within the meaning of 5 U.S.C. 552(f), and
thus is not subject to the Freedom of Information Act (5 U.S.C. 552) or
the Privacy Act of 1974 (5 U.S.C. 552a). The Office of Administration’s
implementation of Executive Order 13526 does not affect members of the
public and the Office of Administration is therefore not required to
publish its internal policies. Accordingly, the provisions of the Code
of Federal Regulations to be removed are without legal effect.
This rule removing 5 CFR parts 2500, 2502, and 2504, and 3 CFR 101.3
is issued pursuant to, among other authorities, C.R.E.W. v. Office of
Admin., 566 F.3d 219 (D.C. Cir. 2009); Whether the Office of Admin. Is
an “Agency” for Purposes of Freedom of Information Act, 31 Op. O.L.C.
(Aug. 21, 2007); Franklin v. Mass., 505 U.S. 788 (1992); and Kissinger
v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980). In
C.R.E.W., the United States Court of Appeals for the District of
Columbia Circuit held that the Office of Administration is not an
agency within the meaning of 5 U.S.C. 552(f). Accordingly, the Office
of Administration is not an agency for purposes of the Freedom of
Information Act (5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C.
552a). All records of the Office of Administration are Presidential
records under the Presidential Records Act, 44 U.S.C. 2201-2207, and
are not available to the public until the fifth anniversary of the last
year of an Administration.
Additionally, Office of Administration procedures recorded at 5 CFR
part 2500 reflect an internal process that has been discontinued. The
Office of Administration does not have regulations implementing
Executive Order 13526 that affect members of the public and is
therefore not required to publish its internal policies.
This rule removes all rules previously issued by the Executive
Office of the President, Office of Administration, that are without
legal effect under well-settled interpretations of the law by the
courts, the Department of Justice, and the current provisions of
Executive Order 13526. The Office of Administration therefore removes
chapter XV, title 5 and 3 CFR 101.3.
Notice and comment requirements
The provisions of the Administrative Procedure Act requiring notice
of proposed rulemaking, the opportunity for public participation, and a
30-day delay in effective date set forth in 5 U.S.C. 553 are
inapplicable because they are “unnecessary” under 5 U.S.C. 553(b)(B)
and the United States Court of Appeals for the District of Columbia
Circuit’s holding in C.R.E.W. The court’s holding in C.R.E.W.
clarifies that the Freedom of Information Act has no legal effect on
the Office of Administration because the Office of Administration is
not an agency within the meaning of 5 U.S.C. 552(f). This rule is
published solely to align relevant provisions of the Code of Federal
Regulations with well-settled law. Thus, this rule involves no agency
discretion, so notice of proposed rulemaking, the opportunity for
public participation, and a 30-day delay in effective date would be
unnecessary.
If this rulemaking were delayed to allow for notice and comment and
a 30-day delay in effectiveness, it would delay alignment of the Code
of Federal Regulations with existing Federal law as interpreted by the
courts, the Department of Justice, and the current provisions of
Executive Order 13526, as well as Office of Administration policy.
Further, no other law requires that a notice of proposed rulemaking
and an opportunity for public comment be issued for this rule. Because
a notice of proposed rulemaking and an opportunity for public comment
are not required to be given for this rule under the Administrative
Procedure Act or by any other law, the analytical requirements of the
Regulatory Flexibility Act (5 U.S.C. 601-612) are not applicable.
Therefore, this regulation is issued in final form.
Rulemaking requirements
Executive Orders 13563 and 12866 direct agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. This
rule has not been designated a “significant regulatory action” under
Executive Order 12866.
Notwithstanding any other provision of law, no person is required to
respond to, nor shall any person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), unless that
collection of information displays a currently valid Office of
Management and Budget Control Number. This rule does not involve any
collection of information subject to the Paperwork Reduction Act.
This rule does not contain “policies that have federalism
implications” as that term is defined under Executive Order 13132.
List of Subjects
3 CFR Part 101
Freedom of information.
5 CFR Part 2500
Classified information.
5 CFR Part 2502
Courts, Freedom of information.
5 CFR Part 2504
Privacy.
Accordingly, under the authority of 5 U.S.C. 553 and as discussed in
the preamble, amend 3 CFR part 101 and chapter XV of title 5 of the
Code of Federal Regulations as follows.
Title 3-The President
CHAPTER I-EXECUTIVE OFFICE OF THE PRESIDENT
PART 101—PUBLIC INFORMATION PROVISIONS OF THE ADMINISTRATIVE PROCEDURES
ACT
1. The authority citation for part 101 continues to read as follows:
Authority: 5 U.S.C. 552.
§ 101.3 [REMOVED] 2. Remove §101.3.
Title 5-Administrative Personnel
CHAPTER XV [REMOVED] 3. Remove chapter XV, consisting of parts 2500 through 2599.
Dated: February 23, 2015.
Beth A. Jones,
Deputy Assistant to the President
Director, Office of Administration.
[FR Doc. 2015-05899 Filed: 3/16/2015 08:45 am; Publication Date:
3/17/2015]

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