b'Ethical Issues Raised by Retention and Use of\nFlight Privileges by FAA Employees\nAlthough flight privileges generally do not require disqualification under 18 U.S.C. \xc2\xa7 208 from all\nmatters involving the relevant air carrier, a Federal Aviation Administration employee who holds\nsuch flight privileges must disqualify him or herself from particular matters where FAA action may\nhave a direct and predictable effect on the relevant air carrier\xe2\x80\x99s ability to honor the employee\xe2\x80\x99s flight\nprivileges.\nAn employee with flight privileges and the airline that provided them have a \xe2\x80\x9ccovered relationship\xe2\x80\x9d\nthat must be analyzed under an Office of Government Ethics regulation (5 C.F.R. \xc2\xa7 2635.502) to\ndetermine whether the employee\xe2\x80\x99s participating in a matter involving that airline would create an\n\xe2\x80\x9cappearance problem.\xe2\x80\x9d The regulation entrusts the agency and the employee to make that determination based on the facts of a particular case.\nAlthough flight privileges could constitute a \xe2\x80\x9cpayment\xe2\x80\x9d within the meaning of another OGE regulation\n(5 C.F.R. \xc2\xa7 2635.503), and therefore must be analyzed under the regulation, they do not constitute\nan \xe2\x80\x9cextraordinary payment\xe2\x80\x9d under the described circumstances.\nFlight privileges are not a type of interest that would qualify as \xe2\x80\x9cstock\xe2\x80\x9d or \xe2\x80\x9cany other securities\ninterest\xe2\x80\x9d under a Department of Transportation regulation (5 C.F.R. \xc2\xa7 6001.104(b)) that supplements\nthe OGE impartiality regulations.\n\nAugust 30, 2004\n\nMEMORANDUM OPINION FOR THE DEPUTY CHIEF COUNSEL\nFEDERAL AVIATION ADMINISTRATION\nYou have requested our opinion on four issues related to the retention and use\nof \xe2\x80\x9cflight privileges\xe2\x80\x9d by employees of the Federal Aviation Administration\n(\xe2\x80\x9cFAA\xe2\x80\x9d).1 Flight privileges are no-cost air travel privileges earned through former\nemployment with an air carrier. We understand that flight privileges represent a\ncommon retirement benefit in the airline industry available to all retired airline\nemployees meeting certain length-of-service requirements. We also understand\nthat while an airline may eliminate or modify the flight privileges of all retirees, it\nmay not do so on a case-by-case basis by refusing to honor the flight privileges of\na particular retiree who otherwise satisfies the rules governing their use. We\nfurther understand that flight privileges cannot be sold or transferred.\nFirst, you ask whether flight privileges are a disqualifying \xe2\x80\x9cfinancial interest\xe2\x80\x9d\nfor FAA employees under 18 U.S.C. \xc2\xa7 208 (2000), the criminal conflict of interest\nstatute. We conclude that although flight privileges generally do not require\ndisqualification under section 208 from all matters involving the relevant air\ncarrier, an FAA employee who holds such flight privileges must disqualify him or\n1\nLetter for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from James\nW. Whitlow, Deputy Chief Counsel, Federal Aviation Administration (June 16, 2004). The Office of\nGovernment Ethics and the Criminal Division of the Department of Justice concur in this memorandum.\n\n237\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nherself from particular matters where FAA action may have a direct and predictable effect on the relevant air carrier\xe2\x80\x99s ability to honor the employee\xe2\x80\x99s flight\nprivileges.\nSecond, you ask whether flight privileges must be analyzed under 5 C.F.R.\n\xc2\xa7 2635.502 (2003), an Office of Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d) regulation that under\ncertain circumstances requires an employee to recuse him or herself if participating in a matter would create an \xe2\x80\x9cappearance problem.\xe2\x80\x9d We conclude that an\nemployee with flight privileges and the airline that provided them have a \xe2\x80\x9ccovered\nrelationship\xe2\x80\x9d that must be analyzed under the regulation to determine whether the\nemployee\xe2\x80\x99s participating in a matter involving that airline would create an\nappearance problem. This Office, however, is not in a position to decide in the\nabstract for an agency or an employee whether there would be an appearance\nproblem. Instead, the regulation entrusts the agency and the employee to make that\ndetermination based on the facts of a particular case.\nThird, you ask whether flight privileges must be analyzed under 5 C.F.R.\n\xc2\xa7 2635.503 (2003), an OGE regulation that generally prohibits a government\nemployee from participating for two years in matters involving his former\nemployer if the employee received an \xe2\x80\x9cextraordinary payment\xe2\x80\x9d prior to entering\ngovernment service. We conclude that although flight privileges could constitute a\n\xe2\x80\x9cpayment\xe2\x80\x9d within the meaning of the regulation, and therefore must be analyzed\nunder the regulation, they do not constitute an \xe2\x80\x9cextraordinary payment\xe2\x80\x9d under the\ncircumstances you have described.\nFourth, you ask whether flight privileges are a type of interest that would qualify as \xe2\x80\x9cstock\xe2\x80\x9d or \xe2\x80\x9cany other securities interest\xe2\x80\x9d under a Department of Transportation regulation that supplements the OGE impartiality regulations. See 5 C.F.R.\n\xc2\xa7 6001.104(b) (2003). We conclude that they are not, as those terms are not\nnaturally read to include benefits like flight privileges.\nI.\nYou first ask whether flight privileges are a disqualifying \xe2\x80\x9cfinancial interest\xe2\x80\x9d\nunder 18 U.S.C. \xc2\xa7 208(a), the criminal conflict of interest statute. Section 208(a)\nprovides that\n[e]xcept as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States, a Federal Reserve bank director, officer, or employee, or an officer or\nemployee of the District of Columbia, including a special Government employee, participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or\notherwise, in a judicial or other proceeding, application, request for a\n\n238\n\n\x0cEthical Issues Raised by Retention and Use of Flight Privileges by FAA Employees\n\nruling or other determination, contract, claim, controversy, charge,\naccusation, arrest, or other particular matter in which, to his\nknowledge, he, his spouse, minor child, general partner, organization\nin which he is serving as officer, director, trustee, general partner or\nemployee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has\na financial interest . . . [s]hall be subject to the penalties set forth in\nsection 216 of this title.\nId. Congress enacted section 208(a) in 1962 as part of a general revision of the\nconflict of interest laws. Pub. L. No. 87-849, sec. 1(a), \xc2\xa7 208(a), 76 Stat. 1119,\n1124 (1962).\nIn answering your question, we \xe2\x80\x9cbegin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately\nexpresses the legislative purpose.\xe2\x80\x9d Engine Mfrs. Ass\xe2\x80\x99n v. S. Coast Air Qual. Mgmt.\nDist., 541 U.S. 246, 252 (2004) (internal quotation omitted). By prohibiting an\nexecutive branch officer or employee from participating \xe2\x80\x9cpersonally and substantially\xe2\x80\x9d in a \xe2\x80\x9cparticular matter\xe2\x80\x9d \xe2\x80\x9cin which,\xe2\x80\x9d \xe2\x80\x9cto his knowledge,\xe2\x80\x9d he has a \xe2\x80\x9cfinancial\ninterest,\xe2\x80\x9d section 208 makes clear that, in order to be a disqualifying financial\ninterest, an interest must be a \xe2\x80\x9cfinancial interest\xe2\x80\x9d \xe2\x80\x9cin\xe2\x80\x9d a matter. The question, then,\nis not whether flight privileges (or any other category of property or benefit)\nqualify as a financial interest per se, but whether the holding of flight privileges by\nan employee may constitute a financial interest in a particular matter. Compare\n18 U.S.C. \xc2\xa7 208(a) (2000) (requiring a determination whether an employee has a\nfinancial interest in a matter) with 18 U.S.C. \xc2\xa7 434 (1958) (section 208(a)\xe2\x80\x99s predecessor, requiring a determination whether an employee has an \xe2\x80\x9cinterest[] in the\npecuniary profits or contracts of any corporation . . . or other business entity\xe2\x80\x9d),\n5 C.F.R. \xc2\xa7 6001.104(b) (requiring a determination whether an employee has a\n\xe2\x80\x9csecurities interest in an airline\xe2\x80\x9d), and 5 C.F.R. \xc2\xa7 6001.104(a) (requiring a determination whether an employee has \xe2\x80\x9ca financial interest . . . in a railroad company\xe2\x80\x9d).2\nWhile the statute does not define what it means to have a \xe2\x80\x9cfinancial interest\xe2\x80\x9d\n\xe2\x80\x9cin\xe2\x80\x9d a governmental matter, or what kinds of property or possessions can give rise\nto a financial interest in a matter, these words have an ordinary meaning and\nusage. As generally understood, a \xe2\x80\x9cfinancial interest\xe2\x80\x9d is an interest \xe2\x80\x9cpertaining to\nmonetary receipts and expenditures.\xe2\x80\x9d Random House Dictionary of the English\nLanguage 532 (1971); see also Black\xe2\x80\x99s Law Dictionary 816 (7th ed. 1999) (\xe2\x80\x9cinter-\n\n2\nSee Roswell B. Perkins, The New Federal Conflict-of-Interest Law, 76 Harv. L. Rev. 1113, 1131\n(1963) (noting that section 434 \xe2\x80\x9cwas limited to situations where the government employee had one of\ntwo basic types of interest in the private party, i.e., the \xe2\x80\x98business entity,\xe2\x80\x99 involved in the governmental\nproceeding,\xe2\x80\x9d while section 208(a) \xe2\x80\x9crequires that there be a \xe2\x80\x98financial interest\xe2\x80\x99 on the part of someone in\nthe particular government proceeding\xe2\x80\x9d).\n\n239\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nest\xe2\x80\x9d means \xe2\x80\x9c[a]dvantage or profit, esp. of a financial nature\xe2\x80\x9d). And by everyday\nstandards of language, one has a financial interest in a governmental matter only\nwhen the particular matter can affect one\xe2\x80\x99s finances\xe2\x80\x94i.e., one\xe2\x80\x99s monetary receipts\nand expenditures.\nThe ordinary understanding of these words also accords with the OGE\xe2\x80\x99s regulatory interpretation of section 208. Exercising its authority to \xe2\x80\x9cpromulgat[e], with\nthe concurrence of the Attorney General, regulations interpreting the provisions\nof . . . section 208,\xe2\x80\x9d Exec. Order No. 12674, \xc2\xa7 201(c), 3 C.F.R. 215, 216 (1989),\nthe OGE has interpreted the term \xe2\x80\x9cfinancial interest\xe2\x80\x9d to mean \xe2\x80\x9cthe potential for\ngain or loss to the employee, or other person specified in section 208, as a result of\ngovernmental action on the particular matter.\xe2\x80\x9d 5 C.F.R. \xc2\xa7 2640.103(b) (2003).\n\xe2\x80\x9c[A] disqualifying financial interest\xe2\x80\x9d in a matter, then, \xe2\x80\x9cmight arise from ownership of certain financial instruments or investments such as stock, bonds, mutual\nfunds, or real estate.\xe2\x80\x9d However, \xe2\x80\x9ca disqualifying financial interest\xe2\x80\x9d might also\n\xe2\x80\x9cderive from a salary, indebtedness, job offer, or any similar interest that may be\naffected by the matter.\xe2\x80\x9d Id.\nThe OGE regulations also amplify what it means for a matter to \xe2\x80\x9caffect\xe2\x80\x9d an\nemployee\xe2\x80\x99s finances. To constitute a disqualifying financial interest in a matter,\nthe OGE regulations explain, a governmental matter must have more than a mere\npotential to affect the employee financially; rather, there must be \xe2\x80\x9ca direct and\npredictable effect.\xe2\x80\x9d 5 C.F.R. \xc2\xa7 2635.402(a) (2003); id. \xc2\xa7 2640.103(a) (same). The\n\xe2\x80\x9cdirect and predictable effect\xe2\x80\x9d requirement reflects the longstanding view of this\nOffice, as well. See Advisory Committees\xe2\x80\x94Food and Drug Administration\xe2\x80\x94\nConflicts of Interest (18 U.S.C. \xc2\xa7 208), 2 Op. O.L.C. 151, 155 (1978); Memorandum for the Heads of Executive Departments and Agencies from the President, 28\nFed. Reg. 4539, 4543 (May 7, 1963).\nThese principles find straightforward application here. As a general matter,\nflight privileges will not require blanket disqualification under section 208 from all\nmatters involving or affecting the air carrier that conferred the privileges. While\ntheir value to the employee may fluctuate as airfares rise and fall, flight privileges,\nwe understand, do not fluctuate in value with the sponsor\xe2\x80\x99s business prospects.\nThey cannot be sold or transferred, they do not trade on a market, they possess no\nresale value, and, indeed, they cannot be liquidated. Rather, the value to an\nemployee of flight privileges is a simple function of the airline\xe2\x80\x99s ability to honor\nthem. Many, if not most, FAA matters relating to the air carrier would likely have\nno direct and predictable effect on the airline\xe2\x80\x99s ability to honor an employee\xe2\x80\x99s\nflight privileges and would likely not financially affect the employee\xe2\x80\x99s interests\nwithin the meaning of the statute.\nIt may be the case, however, that certain, perhaps extraordinary, FAA matters\nmay create a disqualifying financial interest for an employee on account of flight\nprivileges. Where an FAA matter, for example, has the clear potential to result in\nthe airline\xe2\x80\x99s losing its operating certificate, losing its right to fly, and thereby\nlosing the ability to honor flight privileges, an employee who holds flight privileg-\n\n240\n\n\x0cEthical Issues Raised by Retention and Use of Flight Privileges by FAA Employees\n\nes on that airline and who participates personally and substantially in that particular matter would have a financial interest in it. As flight privileges enable the\nholder to fly for free where non-holders must pay money, a prospective loss of\nflight privileges would \xe2\x80\x9cpertain to monetary . . . expenditures\xe2\x80\x9d and entail \xe2\x80\x9cthe\npotential for\xe2\x80\x9d a monetary \xe2\x80\x9closs to the employee.\xe2\x80\x9d3 Thus, we cannot categorically\nexclude the possibility that a financial interest in a particular matter can derive\nfrom flight privileges, although we can conclude that it would involve extraordinary circumstances. Cf. 5 C.F.R. \xc2\xa7 2640.203(e) & ex. 1 (suggesting that participation in a \xe2\x80\x9cfrequent flier program\xe2\x80\x9d can give rise to a disqualifying financial interest\nwhere a particular matter would have a direct and predictable effect on the\nemployee\xe2\x80\x99s interest, but providing a regulatory exemption for participation in such\na program so long as the program is open to the general public and participation\ninvolves no other financial interest).4\nThe law\xe2\x80\x99s current treatment of defined benefit plans reinforces this conclusion.\nIn September 1995, the OGE published a proposed regulation that contains an\ninterpretation of section 208. 60 Fed. Reg. 47,208 (Sept. 11, 1995). The preamble\nto that proposed regulation, which this Office reviewed and approved, states that a\ndefined benefit plan ordinarily will not give rise to a financial interest, because\n[a]s a practical matter . . . most governmental matters in which an\nemployee would participate are unlikely to have a direct and predictable effect on the plan sponsor\xe2\x80\x99s ability or willingness to pay an employee\xe2\x80\x99s pension benefits. Accordingly, most employees will not\nhave a disqualifying financial interest in either the holdings or the\nsponsor of a defined benefit plan.\n3\nWe do not mean to suggest that only matters that have the potential to render an airline unable to\nhonor all flight privileges can create a disqualifying financial interest. A matter affecting an airline\xe2\x80\x99s\nability to honor some part of an employee\xe2\x80\x99s flight privileges might also entail the potential for a\nmonetary loss to the employee. For example, where an FAA employee regularly flies to a particular\ndestination using flight privileges and a particular matter has the clear potential to affect the airline\xe2\x80\x99s\nability to honor flight privileges to that destination (a result that would require the employee to pay to\nfly to a destination to which he regularly flies for free), the employee would likely have a disqualifying\nfinancial interest.\n4\nOne might argue that flight privileges can never give rise to a financial interest because they are\nnot a financial instrument (e.g., cash, stocks, bonds or mutual funds) or an investment vehicle (e.g., real\nestate). That argument, however, would have a faulty premise, as the question is not whether flight\nprivileges are financial, but whether the employee\xe2\x80\x99s interest in a governmental matter is financial.\nThus, it is well-established that a financial interest in a matter may derive from a job offer or a law\nfirm\xe2\x80\x99s representation of a client, neither of which resembles financial instruments or investment\nvehicles, and yet both of which can give rise to a disqualifying financial interest in a governmental\nmatter. See 5 C.F.R. \xc2\xa7 2640.103(b) (\xe2\x80\x9ca disqualifying financial interest might derive from a salary . . .\n[or] job offer\xe2\x80\x9d); Memorandum for Arnold I. Burns, Deputy Attorney General, from Margaret C. Love,\nSpecial Counsel, Office of Legal Counsel, Re: Waiver Under 18 U.S.C. 208(b)(1) (Mar. 14, 1988) (law\nfirm\xe2\x80\x99s interest in litigation in which it is involved in a representative capacity may give rise to a\nfinancial interest that may be imputed to a government employee who has accepted a position with the\nfirm).\n\n241\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nId. at 47,214; see also 5 C.F.R. pt. 2640 (final rule); Memorandum for Stephen D.\nPotts, Director, Office of Government Ethics, from Richard L. Shiffrin, Office of\nLegal Counsel (Sept. 17, 1996) (concurring in publication of final rule); Office of\nGovernment Ethics, 18 U.S.C. \xc2\xa7 208 and Defined Benefit Pension Plans, Informal\nAdvisory Op. 99x6, at 3 (Apr. 14, 1999), available at http://www.oge.gov/OGEAdvisories/Legal-Advisories/Legal-Advisories (last visited May 24, 2013) (\xe2\x80\x9cDefined Benefit Pension Plans\xe2\x80\x9d) (\xe2\x80\x9cIf an employee is assigned to participate in a\nparticular matter that affects the sponsor of his defined benefit plan, the employee\nwill not ordinarily have a disqualifying financial interest in his defined benefit\nplan under section 208, unless the matter would have a direct and predictable\neffect on the sponsor\xe2\x80\x99s ability or willingness to pay the employee\xe2\x80\x99s pension\nbenefit.\xe2\x80\x9d); id. at 3 (\xe2\x80\x9cIf [a matter] could result in the dissolution of the sponsor\norganization and in its subsequent inability to pay the employee\xe2\x80\x99s pension, the\nemployee\xe2\x80\x99s interest in his pension would be a disqualifying financial interest under\nsection 208.\xe2\x80\x9d); id. at 2; cf. President Reagan\xe2\x80\x99s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 190 (1981) (concluding that it\nwould not violate the terms or spirit of Article II, Section 1, Clause 7 of the\nConstitution\xe2\x80\x94which prohibits the President from receiving an emolument from a\nState while in office\xe2\x80\x94for the President to receive a \xe2\x80\x9cpension in which he acquired\na vested right six years before he became President, for which he no longer has to\nperform any services, and of which the State of California cannot deprive him\xe2\x80\x9d).\nAs you have described them, flight privileges resemble a \xe2\x80\x9cdefined\xe2\x80\x9d benefit in\nthe sense that matters here. Like the benefit provided under a defined benefit plan,\nthe value of flight privileges does not generally fluctuate depending on the FAA\xe2\x80\x99s\nregulatory treatment of the airline. Their value to the employee will, of course, be\nindependently affected by the market price of air travel, just as the value of a\ndefined benefit will rise or fall depending on the market performance of the benefit\nplan\xe2\x80\x99s investments. But the right to realize that value is definite, subject only to the\ncompany\xe2\x80\x99s ability to honor the privilege, just as a pension providing a defined\nbenefit is definite, subject only to the company\xe2\x80\x99s ability to honor its funding\nobligations. If defined benefit plans do not ordinarily give rise to a disqualifying\nfinancial interest in the plan\xe2\x80\x99s sponsor, we have no reason to conclude that flight\nprivileges will either.\nThe legislative history of section 208(a) offers further support for this conclusion. While Congress undoubtedly sought to reach genuine conflicts of interest in\nenacting section 208, nothing in the legislative history of section 208 suggests that\nCongress intended categorically to prevent government employees from participating in matters involving companies from which they receive retirement benefits.\nTo the contrary, Congress was well aware that \xe2\x80\x9clegal protections against conflicts\nof interest must be so designed as not unnecessarily or unreasonably to impede the\nrecruitment and retention by the Government of those men and women who are\nmost qualified to serve it.\xe2\x80\x9d H.R. Rep. No. 87-748, at 6 (1961). Our conclusion\xe2\x80\x94\n\n242\n\n\x0cEthical Issues Raised by Retention and Use of Flight Privileges by FAA Employees\n\nthat flight privileges normally will not give rise to a disqualifying financial interest\nin an FAA matter\xe2\x80\x94fully effectuates this intention.\nA 1978 opinion of this Office on pension and welfare benefits does not alter\nour conclusion. In that opinion, we concluded that a government employee who\ncontinued to receive payments pursuant to the retirement program of his former\nlaw firm had a \xe2\x80\x9cfinancial interest\xe2\x80\x9d under section 208 in a matter in which the law\nfirm represented a party. Memorandum for Barbara Allen Babcock, Assistant\nAttorney General, Civil Division, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Potential Conflict Presented by the Participation of Stephen J. Friedman on the Settlement Policy Committee (Feb. 3, 1978).\nWe interpreted section 208 to require disqualification in \xe2\x80\x9cany matter affecting a\nformer employer whenever the Government official is continuing to participate in\na welfare or benefit plan maintained by that employer, whether or not the employer continues to make contributions\xe2\x80\x94unless the official first obtains an exemption\npursuant to \xc2\xa7 208(b).\xe2\x80\x9d Id. at 9 (footnote omitted). The 1978 opinion was based on\nthe erroneous view that section 208(a) \xe2\x80\x9crequires that we look to more than merely\nthe eventual financial impact the governmental matter may have on the employee.\xe2\x80\x9d\nId. at 6. \xe2\x80\x9cIt is appropriate,\xe2\x80\x9d we reasoned, \xe2\x80\x9cto consider as well the financial nexus\nthe employee has with an entity that may be affected by the governmental matter,\neven if the nexus is such that the financial impact on the entity will not be passed\nthrough to the individual employee.\xe2\x80\x9d Id. (emphasis added). The 1978 opinion is\ninconsistent with the direct and predictable effect requirement subsequently\nadopted by OGE in its regulations and long approved by this Office. It is also\ninconsistent with the language of section 208 itself, which clearly requires disqualification only where a decision in the \xe2\x80\x9cparticular matter\xe2\x80\x9d at issue has the\npotential to affect the individual employee\xe2\x80\x99s financial interests. For these reasons,\nwe are constrained to repudiate our 1978 opinion.\nII.\nYou next ask whether flight privileges constitute an interest that must be analyzed under an OGE regulation, 5 C.F.R. \xc2\xa7 2635.502(a) (2003). That regulation\nstates that\n[w]here an employee knows that a particular matter involving specific parties is likely to have a direct and predictable effect on the financial interest of a member of his household, or knows that a person with whom he has a covered relationship is or represents a party\nto such matter, and where the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter, the employee\nshould not participate in the matter unless he has informed the agen-\n\n243\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ncy designee of the appearance problem and received authorization\nfrom the agency designee.\nId. Under section 2635.502(a), as relevant here, an employee\xe2\x80\x99s circumstances must\nsatisfy two elements before the regulation counsels the employee either to decline\nto work on the matter or to obtain authorization from the agency designee: (1) the\nemployee must know that a person with whom he has a covered relationship is a\nparty or a party\xe2\x80\x99s representative in a particular matter, and (2) the employee or his\nagency must determine that a reasonable person would question his impartiality if\nhe participates in that matter.5\nIn our view, an employee who holds flight privileges and the airline that provided the flight privileges would have a \xe2\x80\x9ccovered relationship.\xe2\x80\x9d According to the\nregulation, \xe2\x80\x9c[a]n employee has a covered relationship with,\xe2\x80\x9d among other people,\n\xe2\x80\x9c(i) [a] person . . . with whom the employee has . . . a business, contractual or\nother financial relationship that involves other than a routine consumer transaction . . . [and] (iv) [a]ny person for whom the employee has, within the last year,\nserved as officer, director, trustee, general partner, agent, attorney, consultant,\ncontractor or employee . . . .\xe2\x80\x9d 5 C.F.R. \xc2\xa7 2635.502(b) (emphasis added). A flight\nprivileges arrangement would qualify as a \xe2\x80\x9ccontractual . . . relationship\xe2\x80\x9d under\nsection 2635.502(b)(i), because we understand that flight privileges are granted\nunder a contract or a benefit plan, or are otherwise subject to contractual terms. As\nthat relationship would involve \xe2\x80\x9cother than a routine consumer transaction\xe2\x80\x9d\xe2\x80\x94\nairlines, after all, do not routinely offer consumers free flight privileges\xe2\x80\x94the FAA\nemployee who holds flight privileges and the airline that provided them would\nhave a \xe2\x80\x9ccovered relationship\xe2\x80\x9d within the meaning of the regulation.\nThe OGE\xe2\x80\x99s informal guidance in this area further supports this construction of\nthe regulation. OGE has stated that \xe2\x80\x9c[u]nder 5 C.F.R. \xc2\xa7 2635.502(b)(1)(i), . . . [a]\nvested interest in a defined benefit plan funded and maintained by a former\nemployer would create a covered relationship,\xe2\x80\x9d an interpretation that applies with\nequal force to flight privileges. Defined Benefit Pension Plans at 3 n.3 (emphasis\nadded); cf. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (an\nagency\xe2\x80\x99s interpretation of its own regulations is entitled to \xe2\x80\x9ccontrolling weight\nunless it is plainly erroneous or inconsistent with the regulation\xe2\x80\x9d).\nWhether flight privileges would create an appearance problem, satisfying the\nsecond element of the regulation, is not a question we can answer in the abstract.\nAs OGE has advised, \xe2\x80\x9cOGE is not in a position to decide for an agency whether a\nreasonable person would question the impartiality of [an] employee\xe2\x80\x99s participation\nin a particular matter.\xe2\x80\x9d Office of Government Ethics, Receipt of Outside Awards\n5\nAlthough the first element is also satisfied if the employee knows that the particular matter is\nlikely to have a direct and predictable effect on the financial interest of a member of his household, the\nanalysis of that alternative would largely overlap our analysis of the criminal conflict of interest statute\nin Part I above.\n\n244\n\n\x0cEthical Issues Raised by Retention and Use of Flight Privileges by FAA Employees\n\nby Employees and Outside Activities by Employees, Informal Advisory Op. 00x4,\nat 4 (Apr. 11, 2000), available at http://www.oge.gov/OGE-Advisories/LegalAdvisories/Legal-Advisories (last visited May 24, 2013). The same generally\nholds for this Office; the question of an appearance problem is best left to the\nemployee and the agency based on the facts of a particular case. See id.; Office of\nGovernment Ethics, Covered Relationship With Private Partner, Informal Advisory\nOp. 93x25, at 2 (Oct. 1, 1993), available at http://www.oge.gov/OGE-Advisories/\nLegal-Advisories/Legal-Advisories (last visited May 24, 2013).6\nIII.\nYou also ask whether flight privileges are an interest that must be analyzed\nunder 5 C.F.R. \xc2\xa7 2635.503 (2003), an OGE regulation that generally prohibits a\ngovernment employee from participating, for two years, in matters involving his\nformer employer if the employee received an extraordinary payment from that\nemployer prior to entering government service. An \xe2\x80\x9cextraordinary payment\xe2\x80\x9d is\nany item, including cash or an investment interest, with a value in\nexcess of $10,000, which is paid:\n(i) On the basis of a determination made after it became known to\nthe former employer that the individual was being considered for\nor had accepted a Government position; and\n(ii) Other than pursuant to the former employer\xe2\x80\x99s established\ncompensation, partnership, or benefits program. A compensation,\npartnership, or benefits program will be deemed an established\nprogram if it is contained in bylaws, a contract or other written\nform, or if there is a history of similar payments made to others\nnot entering into Federal service.\nId. \xc2\xa7 2635.503(b)(1).\nUnder the plain terms of the regulation, flight privileges can be a prohibited\ntype of \xe2\x80\x9cpayment.\xe2\x80\x9d While the term \xe2\x80\x9cpayment\xe2\x80\x9d ordinarily suggests money or some\n6\nWe note that under the OGE regulations an agency need not wait for an employee to determine\nwhether a covered relationship would cause a reasonable person to question his impartiality. Section\n2635.502(c) says that \xe2\x80\x9cthe agency designee may make an independent determination\xe2\x80\x9d about impartiality \xe2\x80\x9cat any time\xe2\x80\x9d and \xe2\x80\x9con his own initiative.\xe2\x80\x9d 5 C.F.R. \xc2\xa7 2635.502(c) (emphasis added).\nSome might argue that an appearance problem could arise if a high percentage of FAA employees\nheld privileges not generally available to the public from the industry regulated by the FAA, but we do\nnot address the possible collective effect that widespread flight benefits among FAA employees might\nbe perceived to have. The legal standards discussed in this memorandum turn on analysis of individual\nemployees\xe2\x80\x99 personal interests, and there is no concept in the applicable laws of an \xe2\x80\x9cagency conflict of\ninterest.\xe2\x80\x9d Any effect that might be perceived because of the aggregation or widespread holding of\nindividuals\xe2\x80\x99 financial interests is an issue for policy makers to consider.\n\n245\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nother financial instrument, it also encompasses \xe2\x80\x9ccompensation.\xe2\x80\x9d Webster\xe2\x80\x99s Third\nNew Int\xe2\x80\x99l Dictionary of the English Language Unabridged 1659 (2002) (\xe2\x80\x9cpayment . . . : the act of paying or giving compensation . . .\xe2\x80\x9d). And there is no reason\nthat an airline employee could not be compensated with flight privileges. Moreover, the regulation states that \xe2\x80\x9cany item . . . with a value in excess of $10,000\xe2\x80\x9d\nmay constitute an extraordinary payment, not just cash or financial instruments.\nThus, it is the value, timing and extraordinary nature of a \xe2\x80\x9cpayment\xe2\x80\x9d that brings\nthe payment within the regulation\xe2\x80\x99s orbit, not its form. Granting privileges\xe2\x80\x94\nwhether flight privileges, country club privileges, or any other valuable privileges\xe2\x80\x94as a reward for accepting a government position would pose no less of an\nimpartiality problem than making an equivalent cash payment.\nWhile flight privileges can qualify as a type of payment, and therefore must be\nanalyzed under the regulation, we conclude that retiree flight privileges do not\nmeet the regulation\xe2\x80\x99s definition of extraordinary payment. First, we understand\nthat flight privileges are an ordinary benefit within the industry, not one awarded\n\xe2\x80\x9con the basis of a determination made after\xe2\x80\x9d a former employer learns that an\nindividual may enter government service. We are told that the FAA has sought our\nopinion in part because uncertainty about the ethical implications of flight\nprivileges has impeded the FAA\xe2\x80\x99s ability to recruit former airline industry\nemployees who are already entitled to such privileges and are free to use them if\nthey choose not to enter government service. Second, flight privileges are earned\nunder an \xe2\x80\x9cestablished . . . benefits program,\xe2\x80\x9d 5 C.F.R. \xc2\xa7 2635.503(b)(1)(ii), because, according to your letter, there is a history of granting them to retiring airline\nemployees who are not entering federal service. See also 57 Fed. Reg. 35,006,\n35,028 (Aug. 7, 1992) (OGE rejecting a proposal to define \xe2\x80\x9cextraordinary payment\xe2\x80\x9d to include payments made under an employment contract or employee\nbenefits plan).7\nIV.\nLastly, you ask whether flight privileges qualify as \xe2\x80\x9cstock\xe2\x80\x9d or \xe2\x80\x9cany other securities\xe2\x80\x9d within the meaning of 5 C.F.R. \xc2\xa7 6001.104(b) (2003), which forbids FAA\nemployees, their spouses and their minor children to \xe2\x80\x9chold stock or have any other\nsecurities interest in an airline.\xe2\x80\x9d\nUnder any conventional standard of meaning, flight privileges do not qualify as\n\xe2\x80\x9cstock or . . . any other securities interest.\xe2\x80\x9d \xe2\x80\x9cStock\xe2\x80\x9d represents an equity interest in\na company, while flight privileges entail no such ownership interest, but merely\nthe privilege of flying for free. Nor do flight privileges qualify as \xe2\x80\x9cany other\n7\nFor the same reason, an FAA employee\xe2\x80\x99s use of flight privileges that were earned by virtue of\nprior employment with the airline and that are available to all similarly situated retirees pursuant to the\ngeneral retirement benefit policy of the airline, regardless of subsequent government employment,\nwould not constitute a \xe2\x80\x9cgift\xe2\x80\x9d prohibited by the ethics rules. See 5 C.F.R. \xc2\xa7 2635.203(b)(6) (2003).\n\n246\n\n\x0cEthical Issues Raised by Retention and Use of Flight Privileges by FAA Employees\n\nsecurities interest,\xe2\x80\x9d as they are not an investment of any kind\xe2\x80\x94either in form or in\neconomic substance. See Securities Act of 1933, Pub. L. No. 73-22, \xc2\xa7 2(1), as\namended, 15 U.S.C. \xc2\xa7 77b(a)(1) (2000) (\xe2\x80\x9cThe term \xe2\x80\x98security\xe2\x80\x99 means any note,\nstock, treasury stock, security future, bond, debenture, evidence of indebtedness,\ncertificate of interest or participation in any profit-sharing agreement, collateraltrust certificate, preorganization certificate or subscription, transferable share,\ninvestment contract, voting-trust certificate, certificate of deposit for a security,\nfractional undivided interest in oil, gas, or other mineral rights, any put, call,\nstraddle, option, or privilege on any security, certificate of deposit, or group or\nindex of securities (including any interest therein or based on the value thereof), or\nany put, call, straddle, option, or privilege entered into on a national securities\nexchange relating to foreign currency, or, in general, any interest or instrument\ncommonly known as a \xe2\x80\x98security,\xe2\x80\x99 or any certificate of interest or participation in,\ntemporary or interim certificate for, receipt for, guarantee of, or warrant or right to\nsubscribe to or purchase, any of the foregoing.\xe2\x80\x9d); SEC v. Edwards, 540 U.S. 389,\n393 (2004) (explaining that under \xe2\x80\x9c[t]he test for whether a particular scheme is an\ninvestment contract,\xe2\x80\x9d and therefore is a \xe2\x80\x9csecurity,\xe2\x80\x9d \xe2\x80\x9c[w]e look to \xe2\x80\x98whether the\nscheme involves an investment of money in a common enterprise with profits to\ncome solely from the efforts of others\xe2\x80\x99\xe2\x80\x9d) (quoting SEC v. W.J. Howey Co., 328\nU.S. 293, 301 (1946)); Int\xe2\x80\x99l Bhd. of Teamsters v. Daniel, 439 U.S. 551, 553 (1979)\n(holding that a non-contributory, mandatory pension plan did not constitute a\n\xe2\x80\x9csecurity\xe2\x80\x9d under the Securities Act of 1933 or the Securities Exchange Act of 1934\nbecause there was no \xe2\x80\x9cinvestment of money\xe2\x80\x9d); id. at 559\xe2\x80\x9360 (\xe2\x80\x9cIn every decision of\nthis Court recognizing the presence of a \xe2\x80\x98security\xe2\x80\x99 under the Securities Acts, the\nperson found to have been an investor chose to give up a specific consideration in\nreturn for a separable financial interest with the characteristics of a security.\xe2\x80\x9d).\nContext bolsters this conclusion. A different section of the regulation, section\n6001.104(a), provides that no Federal Railroad Administration (\xe2\x80\x9cFRA\xe2\x80\x9d) employee\nmay \xe2\x80\x9chold stock or have any other financial interest, including outside employment, in a railroad company.\xe2\x80\x9d 5 C.F.R. \xc2\xa7 6001.104(a) (emphasis added). By\nbroadly prohibiting FRA employees from holding any financial interest in a\nrailroad, while narrowly prohibiting FAA employees from holding any securities\ninterest in an airline, the regulation confirms that the FAA limitation incorporates\nonly a narrow subset of financial interests and that it excludes non-securities\ninterests like flight privileges.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n247\n\n\x0c'


b"Continuing Obligations Under Congressional Subpoenas After\nthe Adjournment of Congress\nW hile congressional com m ittees\xe2\x80\x99 subpoenas are no longer effective after Congress\xe2\x80\x99 adjournm ent sine\ndie. the A dm inistrator o f the Environm ental Protection Agency should, in the interest o f com ity\nand accom m odation to the Legislative B ranch, continue to be as responsive as possible to those\ncom m ittees\xe2\x80\x99 requests for docum ents and other inform ation.\nT he A dm inistrator\xe2\x80\x99s obligations under one of the subpoenas may be construed in light of the\nsubcom m ittee ch airm an \xe2\x80\x99s subsequent m odification on the record o f its term s. Com pliance with the\nsubpoena as so m odified cannot form the basis o f the \xe2\x80\x9c willful default\xe2\x80\x9d that is necessary for\nprosecution under the relevant crim inal contem pt statutes, 2 U .S .C . \xc2\xa7\xc2\xa7 192, 194.\n\nDecember 23, 1982\nMEMORANDUM OPINION FOR THE ADMINISTRATOR,\nENVIRONMENTAL PROTECTION AGENCY\nThis responds to your request for guidance in defining your outstanding\nobligations, if any, under the subpoenas served on you on October 21, 1982, by\nthe Subcommittee on Oversight and Investigations of the House Committee on\nEnergy and Commerce (Energy and Commerce Subcommittee subpoena), and\non November 22, 1982, by the Subcommittee on Investigations and Oversight of\nthe House Committee on Public Works and Transportation (Public Works Sub\xc2\xad\ncommittee subpoena).\nThe Energy and Commerce Subcommittee subpoena requires you to produce\ncopies of all books, records, correspondence, legal and other\nmemoranda, papers and documents relative to the Tar Creek,\nOklahoma; Stringfellow Acid Pits, California; and Berlin and\nFarro, Michigan, hazardous waste sites, excepting shipping rec\xc2\xad\nords, contractor reports and other technical documents.1\nThe Public Works Subcommittee subpoena dated November 16, 1982, requires\nproduction of\nall books, records, correspondence, memorandums, papers,\nnotes and documents drawn or received by the Administrator and/\nor her representatives since December 11, 1980, including dupli\xc2\xad\n\n1 Attachment to the Energy and Commerce Subcommittee subpoena, issued Oct 14, 1982.\n\n814\n\n\x0ccates and excepting shipping papers and other commercial or\nbusiness docum ents, contractor and/or other technical docu\xc2\xad\nments, for those sites listed as national priorities pursuant to\nSection 105(8)(B) of P.L. 96-510, the \xe2\x80\x9c Comprehensive Environ\xc2\xad\nmental Response, Compensation, and Liability Act of 1980.\xe2\x80\x9d\nThe Office of Legal Counsel has taken the view that the adjournment sine die at\nthe conclusion of a particular Congress (in this case, the 97th Congress) causes a\nlapse in the effectiveness of subpoenas issued by committees and subcommittees\nof that Congress as far as imposing any continuing legal obligations to produce\ndocuments pursuant thereto.* Accordingly, we believe that the adjournment sine\ndie of the 97th Congress, coupled with the convening of the 98th Congress, will\nterminate your legal responsibilities under both subpoenas. However, since both\nSubcommittees appear to have continuing interests in the documents embraced\nby the subpoenas, and in the interest of comity and accommodation to the needs\nof the Legislative Branch, we urge that you nevertheless continue to be as\nresponsive as possible, within the bounds set forth in the President\xe2\x80\x99s November\n30th memorandum to you,2 to the requests of the Energy and Commerce and\nPublic Works and Transportation Subcommittees.\nWith respect to the Energy and Commerce Subcommittee subpoena, we\nunderstand that the Environmental Protection Agency (EPA) has provided to the\nSubcommittee staff at the Subcommittee staff offices copies of all documents\nwhich are encompassed by the subpoena, except those which have been deter\xc2\xad\nmined to be enforcement sensitive and which are therefore being withheld\npursuant to the President\xe2\x80\x99s November 30, 1982, instruction to you. The withheld\ndocuments were identified by you to the Subcommittee at its hearing on De\xc2\xad\ncember 14, 1982. For all documents which are being withheld, you have\nprovided the Subcommittee with a detailed list describing the contents of each\ndocument, and giving the title, date, the author and addressee, and the bases\nupon which the document was determined to be enforcement sensitive. We\nunderstand that, at this time, all documents responsive to the Energy and\nCommerce subpoena which have been discovered in the three regional offices\ninvolved or anywhere else within EPA have been forwarded to Washington for\nreview, and that all but 42 have been turned over to the Subcommittee. The\nlikelihood that any further discoveries of documents which might have been\ninadvertently overlooked in the regional offices is apparently slight and if any are\ndiscovered, it would probably involve a very small number of documents. We\nrecommend that you continue to forward any newly discovered nonsensitive\ndocuments to the Subcommittee, or, if the document must be withheld pursuant\nto the President\xe2\x80\x99s instructions, that you furnish to the Subcommittee a complete\ndescription of the document, including the basis for its nondisclosure in the same\n* N o t e : See memorandum opinion for the Attorney General, Dec. 14, 1982 (Continuing Effect of a C on\xc2\xad\ngressional Subpoena Following the Adjournment o f Congress), reprinted in this volume at p. 744, supra. Ed\n2 See also President Reagan\xe2\x80\x99s Nov. 4 ,1 9 8 2 , M emorandum for the Heads of Executive Departments and Agencies\nre Procedures Governing Responses to Congressional Requests for Information.\n\n815\n\n\x0cform utilized with respect to the other withheld documents. We suggest that the\ntransmittal letter also explain why the documents were not discovered prior to the\nreturn date of the subpoena.\nWith respect to the Public Works Subcommittee subpoena, Chairman Levitas,\nas you know, modified the terms of your compliance with the subpoena at the\nDecember 2, 1982, hearing on hazardous waste contamination at which you\ntestified. He did so explicitly, stating that\nthere is absolutely no need for the Environmental Protection\nAgency to reproduce any documents which are otherwise avail\xc2\xad\nable to the subcommittee staff.3\n*\n\n*\n\n*\n\n*\n\n*\n\nAs far as the documents that you have brought with you today,\ninsofar as the committee is concerned they are not fully respon\xc2\xad\nsive to the subpoena of the committee. Under the circumstances I\nwould suggest that they be held in abeyance until the matter is\nresolved one way or the other, and that they be maintained in your\ncustody until that time.4\nChairman Levitas\xe2\x80\x99 statement was made in response to your testimony that the\nactual, physical production of all documents encompassed by the subpoena in the\nSubcommittee\xe2\x80\x99s offices \xe2\x80\x9c would require the location, segregation, duplication,\nphotocopying and shipping of more than 787,000 pages of documents . . .,\xe2\x80\x9d5\n\xe2\x80\x9c could [not] be completed [until] between February 15th and March 1st, and\nwould cost approximately $245,000.\xe2\x80\x9d 6 In addition, you pointed out that produc\xc2\xad\ning all of these documents on a \xe2\x80\x9c rush\xe2\x80\x9d basis would require \xe2\x80\x9c the virtual halt of\nsome segments of [EPA\xe2\x80\x99s] enforcement programs for several weeks.\xe2\x80\x9d7\nNotwithstanding the various deficiencies in the Public Works Subcommittee\nsubpoena, without suggesting that it would have any continuing validity after the\n98th Congress convenes, and without suggesting that the arguably relevant\ncriminal contempt statutes, 2 U .S.C . \xc2\xa7\xc2\xa7 192, 194, are applicable to the current\nsituation, you have asked whether, absent those and other potential defenses, you\ncould be held responsible for compliance with its literal demands in light of\nC hairm an Levitas\xe2\x80\x99 apparent m odification of his expectations regarding the\nsubpoena.\n3 Transcript, Hearing on Hazardous Waste Contamination of Water Resources Before the Subcomm. on Inves\xc2\xad\ntigations and Oversight of the House Committee on Public Works and Transportation, Dec 2, 1982, p. 123, lines\n2902-04.\nIn addition, several other members of the Subcommittee also indicated that they were not interested in your\nproducing copies of documents which they already have available to them in the regional and headquarters offices.\nSee. e g .. Transcript, at p. 67, lines 1573-82; p. 77, lines 1821-25; p 97, lines 2281-86; p. 99, lines 2334-39; p.\n119, lines 2801-03.\n4 Id. at 135, lines 3192-98.\n5 Id. at 5 5 -5 6 , lines 1301-03.\n6 Id. at lines 1316-18. These figures reflect computations based on work performed on a \xe2\x80\x9c rush\xe2\x80\x9d basis, with the\nuse of contractors, overtime, and the reassignment of resources and personnel within the Agency. Performance of\nthe work on a non-\xe2\x80\x9crush\xe2\x80\x9d basis would take m ore than 10,000 hours o f staff time, cost roughly $145,000, and could\nprobably be completed between May 15th an d June 15th.\n7 Id. at lines 1318-19.\n\n816\n\n\x0cDecisions of the Supreme Court and the courts of appeals construing 2 U.S.C.\n\xc2\xa7 1928 have uniformly held that a congressional request for testimony or the\nproduction of documents by a witness which is suspended, delayed, or aban\xc2\xad\ndoned by a Subcommittee member in colloquy with the witness, and is not later\nrenewed by the Subcommittee, cannot form the basis of the \xe2\x80\x9c willful default\xe2\x80\x9d that\nis necessary for a lawful prosecution under \xc2\xa7 192. See Flaxer v. United States,\n358 U.S. 147 (1958).9 See also Emspak v. United States, 349 U.S. 190(1955);\nQuinn v. United States, 349 U.S. 155 (1955); M iller v. U nitedStates, 259 F. 2d\n187 (D.C. Cir. 1958).\nWe conclude that, when considered in light of the facts that the Subcommittee\napparently was not interested in any of the documents if it was not to receive all of\nthem ,10the provision of the statute which requires a violation to be willful, and in\nlight of the cases discussed above, Chairman Levitas\xe2\x80\x99 modification on the record\nof the terms of your compliance with the subpoena issued by his Subcommittee is\nsufficient to support a construction of your obligation that, without taking into\naccount other defenses, requires only that you make the requested documents\navailable in the EPA offices where the documents generally are maintained.\nHowever, in keeping with the three-tiered screening procedure that you have\ndeveloped to ensure that career and policy level attorneys in the Environmental\nProtection Agency, the Land and Natural Resources Division of the Department\nof Justice and the Office of Legal Counsel of the Department of Justice review all\ndocuments which are withheld as enforcement sensitive, we would recommend\n8 2 U.S.C. \xc2\xa7 192 provides.\nEvery person who having been summoned as a witness by the authonty of either House of\nCongress to give testimony or to produce papers upon any matter under inquiry before either House,\nor any joint committee established by a joint or concurrent resolution of the two Houses of Congress,\nor any committee of either House of Congress, willfully makes default, or who, having appeared,\nrefuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a\nmisdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a\ncommon jail for not less than one month nor more than twelve months\n9 The facts of Flaxer v United States, supra, are very similar to the circumstances raised by Chairman Levitas\xe2\x80\x99\nmodification o f the Public Works Subcommittee\xe2\x80\x99s subpoena. In Flaxer, supra, the president of a labor union was\nsubpoenaed to appear before a Senate subcommittee on October 5 ,1 9 5 1 , and to bring with him certain documents\nHe appeared, but did not bring all of the requested documents, apparently because of insufficient time to gather them\nall The Senator who chaired the hearing, after colloquy with the witness, said, \xe2\x80\x9c Since you have made the reply that\nit could be done in a week, that will be the order of the committee, that you submit that information as requested by\ncounsel for the committee within 10 days from this date.\xe2\x80\x9d 358 U.S at 149-50. The Court held that the witness could\nnot thereafter be prosecuted under 2 U.S C. \xc2\xa7 192 for willful default because he was not clearly apprised that the\nsubcommittee continued to require the documents on the return date of the subpoena rather than at the later date. The\nCourt stated.\nIn the present case, the position of the Committee was clear in one respect: it was plain it wanted\nthe [documentsl But, to say the least, there was ambiguity in its ruling on the time of performance.\nThe witness could well conclude, we think, that he had 10 days more to consider the matter, 10 days\nto face the alternative of compliance as against contempt. Certainly we cannot say that petitioner\ncould tell with a reasonable degree of certainty that the Committee demanded the [documents] this\nvery day, not 10 days hence.\nId. at 151. The Court then reiterated its language in Quinn v. United States, 349 U.S. at 170:\nGiving a witness a fairapprisal of the committee's ruling on an objection recognizes the legitimate\ninterests o f both the witness and the committee Just as the witness need not use any particular form\no f words to present his objection, so also the committee is not required to resort to any fixed verbal\nformula to indicate its disposition of the objection. So long as the witness is not forced to guess the\ncom m ittee\xe2\x80\x99s ruling, he has no cause to complain. And adherence to this traditional practice can\nneither inflict hardship upon the committee nor abridge the proper scope of legislative investigation\n358 U.S at 151-52.\n10 Transcript, at 135, lines 3192-98\n\n817\n\n\x0cthat you continue your policy of having copies of documents which are deter\xc2\xad\nmined by your regional staff potentially to be in the enforcement sensitive\ncategory shipped from the regional offices to Washington so that further review\nmay take place. Once a determination has been made to withhold any documents\npursuant to the President\xe2\x80\x99s instruction, you should continue to provide the\nSubcommittee, as you have in the past, with a list of such documents, describing\ntheir contents and explaining the bases for nondisclosure.\nIn order to avoid any misunderstanding relative to your further obligations\nunder the Public Works Subcommittee subpoena, and to confirm our interpreta\xc2\xad\ntion of your remaining responsibilities, I suggest that you send letters in the\nattached form to Chairmen Levitas and Dingell. This will give each of them an\nopportunity to ascertain your intentions with respect to the documents sought by\nthe subpoenas and to make any further comments they may deem appropriate.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice c f Legal Counsel\n\nAttachment\n\n818\n\n\x0cHonorable John Dingell\nChairman\nSubcommittee on Oversight and Investigations\nCommittee on Energy and Commerce\nUnited States House of Representatives\nWashington, D.C. 20515\nD e a r C h a ir m a n D in g e l l :\n\nIn an effort to cooperate as fully as possible with your Subcommittee in\nconnection with the subpoena served on me by your Subcommittee on October\n21, 1982, and with due regard for my responsibility to carry out the President\xe2\x80\x99s\nNovember 30 instruction to me \xe2\x80\x9c not to furnish copies of [sensitive documents\nfound in open law enforcement files] to the Subcommittee[ ]\xe2\x80\x9d but to \xe2\x80\x9c remain\nwilling to meet with [the] Subcommittee to provide such information as [I] can,\xe2\x80\x9d\nand notwithstanding your Subcommittee\xe2\x80\x99s vote on December 14, 1982, to find\nme in contempt of Congress for complying with the President\xe2\x80\x99s instructions, I\nwish to set forth the intentions of the Environmental Protection Agency with\nrespect to the documents sought by your Subcommittee under the October 21\nsubpoena, and to provide you with an opportunity to clarify, if you deem it\nappropriate to do so, the position of your Subcommittee in this regard.\nI\nbelieve at this time that we have furnished all documents relating to the\nStringfellow Acid Pits, Tar Creek, and Berlin and Farro sites which are respon\xc2\xad\nsive to your subpoena, except for the 42 documents which, having been deter\xc2\xad\nmined to be enforcement sensitive in the manner described to you on December\n14, 1982, are being withheld pursuant to the President\xe2\x80\x99s November 30, 1982,\ninstructions to me. For those documents withheld from your review, we have\nprovided you with a description of the contents of the documents, the name and\ntitle of the author and the addressee, the date, the number of pages, and an\nexplanation of why we believe that the document is enforcement sensitive.\nShould any further documents relating to the three sites encompassed by your\nsubpoena be found in our headquarters or regional office files, we will forward\nthe documents to you, or, upon a determination that the documents are enforce\xc2\xad\nment sensitive, we will forward to you a description of the document and an\nexplanation of the basis for its nondisclosure.\n819\n\n\x0cWe remain willing to provide you, your Subcommittee, or your Subcommit\xc2\xad\ntee\xe2\x80\x99s staff with any information o f a factual, technical, or policy nature regarding\nthe three specified hazardous waste sites to the extent not inconsistent with the\nPresident\xe2\x80\x99s instructions.\nSincerely,\n\nAnne M. Gorsuch\nAdministrator\nEnvironmental Protection Agency\n\n820\n\n\x0c"