SECTION 2 OF S. 796

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800160032-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 12, 2016
• Document Release Date: May 13, 2002
• Sequence Number: 32
• Publication Date: August 18, 1975
• Content Type: MF

?L C- 7~?
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OGr 75-29c8
18 August 1975
MEMORANDUM FOR: Office of Legislative Counsel
0
SUBJECT : Section 2 of S. 796
1. Subsection 2(1) of S. 796 is intended to implement a recommendation
of the Administrative Conference, which is the subject of an extensive article
in the Michigan Law Review (Volume 71, No. 2, February 1972) by Professor
Bonfield of the University of Iowa. Subsection 553(a)(1) of Title 5 provides
that the rulemaking requirements of section 553 apply except to the extent
that there is involved a military or foreign affairs function of the United States.
Under the amendment, functions of that type are exempt only if they are classified
under an Executive order. (The language used is identical with that of
exemption (1) under the Freedom of Information Act.) Without attempting to
determine what Agency actions, if any, amount to rulemaking, it is believed
there is no reason to object to this amendment as it would seem highly probable
that any CIA rulemaking which is not classified could be conducted under
normal rulemaking requirements, that is, under the provisions of section 553,
without difficulty. Moreover, the exemption is also broader. The current
exemption applies only to the extent that there is involved "a military or foreign
affairs function of the United States. " The amended version would apply except
to the extent that there is involved "a matter pertaining" to a military or foreign
affairs function of the United States.
2. The proposed amendment to subsection 553 (a) (2) (see section 2(2)
of the bill) would be amended by narrowing that exemption from the current
rulemaking requirement. As amended, subsection 553(a) (2) would exempt
only to the extent that there is involved "a matter relating to agency manage-
ment or personnel. " The exemption now applicable to the extent that there is
involved a matter relating to "public property, loans, grants, benefits or
contracts" would be deleted. This deletion appears to be of little or no
significance to the Agency. With the possible exception of the contracts area,
it seems probable that we would have no such areas for rulemaking. Moreover,
any that we do have would still be exempt by the amended provision which
exempts matters pertaining to classified military and foreign affairs functions
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of the United States. Again, to the extent that our contracting is of an
unclassified nature, compliance with the amended 553 (a) (2) should not be
difficult.
3. The amendment proposed by subsection 2(3) would modify procedural
requirements of implementing certain existing exemptions and, I believe, is
unobjectionable.
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