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United States Court of Appeals for the District of Columbia Circuit
September 18, 1992, Argued ; January 8, 1993, Decided
[*1289] SILBERMAN, Circuit Judge: The district court, at the behest of the government, certified to us on interlocutory appeal the question whether President Reagan's Task Force on Regulatory Relief, headed by then-Vice President Bush and composed of certain cabinet members, is an "agency" for purposes of the Freedom of Information Act, 5 U.S.C. § 552. Appellee seeks certain Task Force documents under [**2] the Act. We reverse the district court's determination and hold that the Task Force was not an "agency."
Soon after his inauguration in 1981, President Reagan embarked on an effort to reduce regulatory burdens on the economy. As part of that program, the President established a cabinet-level Task Force on Regulatory Relief which included the Vice President, the Attorney General, the Secretaries of the Treasury, Commerce and Labor Departments, the Director of the Office of Management and Budget (OMB), the Chairman of the Council of Economic Advisers, and the President's Assistant for Policy Planning. President Reagan directed the Task Force to "review pending regulations, study past regulations with an eye towards revising them and recommend appropriate [*1290] legislative remedies." As head of the Task Force, Vice President Bush named the Administrator for OMB's Office of Information and Regulatory Affairs (OIRA) as the Executive Director of the Task Force and a Special Assistant to the President as the Associate Director. Using staff from OMB, the Task Force operated from the Office of the Vice President.
President Reagan followed up the creation of the Task Force with Executive [**3] Order 12,291, which details the procedures for developing regulations and requires agencies to use cost/benefit analysis when making decisions. See Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (1981). Agencies must issue a Regulatory Impact Analysis (RIA) for any regulations that have a significant effect on the economy--defined as "major rules" in the Executive Order. Subject to the direction of the Task Force, the OMB Director has the authority to review RIAs and to issue guidelines both for filing the RIAs and for identifying major rules. The Order also gives the OMB Director--subject to the Task Force's guidance--the authority, among other things: (1) to designate regulations as major rules; (2) to require agencies to seek additional information in connection with a regulation; (3) to require interagency consultation designed to reduce conflicting regulations; (4) to develop procedures for estimating the annual social costs and benefits of regulations; and (5) to prepare recommendations to the President for changes in agency statutes. Exec. Order No. 12,291, § 6. If any disagreements arise between an agency and OMB, the Task Force "shall resolve any [**4] issues raised under this Order or ensure that they are presented to the President." Id. § 3(e)(1).
Thus, the Order authorized OMB, under Task Force guidance, to provide policy advice, to require agencies to seek interagency coordination, and even to delay regulatory proposals. But it did not confer any power to prevent an agency from carrying out its legal duty. The Order cautioned that the agencies must follow its provisions only "to the extent permitted by law." Id. § 2. And § 8 exempts "any regulation for which consideration or reconsideration . . . would conflict with deadlines imposed by statute or by judicial order." Moreover, in § 9, the President directed that the Order "is intended only to improve the internal management of the Federal government, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States."
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981 F.2d 1288 *; 1993 U.S. App. LEXIS 228 **; 299 U.S. App. D.C. 86
KATHERINE ANNE MEYER v. GEORGE BUSH, CHAIRMAN, TASK FORCE ON REGULATORY RELIEF, ET AL., APPELLANTS
Prior History: [**1] Appeal from the United States District Court for the District of Columbia. 88cv03112
Disposition: Accordingly, for the reasons stated, we conclude that the Task Force was not an agency under FOIA. Having decided the issue certified to us, we remand the case to the district court.
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