b'Applicability of Trade Secrets Act to Intra-Governmental\nExchange of Regulatory Information\nT he d isclosure to certain federal financial regulatory agencies o f propriety inform ation o f the Office\no f F ederal H o u sin g E nterprise Oversight obtained from the finance institutions it regulates would\nb e \xe2\x80\x9c auth o rized by law \xe2\x80\x9d w ithin the m eaning o f the T rade S ecrets Act and therefore would not\nviolate that A c t\xe2\x80\x99s prohibitions against unauthorized agency disclosures o f trade secrets or other\nco n fidential business inform ation.\n\nApril 5, 1999\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nO f f ic e o f F e d e r a l H o u s in g E n t e r p r is e O v e r s ig h t\n\nThis responds to your request for our opinion regarding the applicability of\nthe Trade Secrets Act, 18 U.S.C. \xc2\xa7 1905 (Supp. II 1996) (\xe2\x80\x9c TSA\xe2\x80\x9d ), to the Office\nof Federal Housing Enterprise Oversight\xe2\x80\x99s (\xe2\x80\x9c OFHEO\xe2\x80\x9d ) proposed provision to\nother federal agencies of certain proprietary information that it receives in carrying\nout its statutory responsibilities.1 For reasons set forth below, we conclude that\nthe TSA does not prohibit the inter-agency, official purpose disclosures outlined\nin your request.\nI.\n\nOFHEO is a federal agency, within the Department of Housing and Urban\nDevelopment, created by the Federal Housing Enterprises Financial Safety and\nSoundness Act of 1992, Pub. L. No. 102-550, 106 Stat. 3941, 3944, (codified\nat 12 U.S.C. \xc2\xa7\xc2\xa7 4501-4641 (1994)) (\xe2\x80\x9c FHE Act\xe2\x80\x9d or \xe2\x80\x9c Act\xe2\x80\x9d ). Its purpose is, inter\nalia, to ensure that the Federal National Mortgage Association (Fannie Mae) and\nthe Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, \xe2\x80\x9c the\nEnterprises\xe2\x80\x9d ) \xe2\x80\x9c are adequately capitalized and operating safely\xe2\x80\x9d in accordance\nwith governing legislation. See 12 U.S.C. \xc2\xa7 4513(a). The Enterprises are the\nnation\xe2\x80\x99s largest housing finance institutions. OFHEO\xe2\x80\x99s oversight and regulatory\nresponsibilities with respect to them are similar to those exercised over banks\nand financial institutions by agencies such as the Federal Deposit Insurance Cor\xc2\xad\nporation and the Office of the Comptroller of the Currency. See OFHEO Letter\nat 1.\nIn carrying out its responsibilities under the Act, OFHEO from time to time\nrequires the Enterprises to submit various reports on their financial condition and\n1 See Letter for Lee J. Radek, Chief, Public Integrity Section, Criminal Division, Department o f Justice from\nAnne E. Dewey, General Counsel, Office of Federal Housing Enterprise Oversight (June 5, 1998) ( \xe2\x80\x9c OFHEO Letter\xe2\x80\x9d ).\nThe Attorney General has delegated her authority to provide legal opinions for departments and agencies of the\nexecutive branch to this O ffice and, accordingly, your request has been forwarded to us for disposition. See 28\nU.S C \xc2\xa7 \xc2\xa7 5 1 0 -5 1 3 (1994), 28 C.F.R. \xc2\xa70.25(a) (1997).\n\n74\n\n\x0cApplicability o f Trade Secrets Act to Intra-Governmental Exchange o f Regulatory Information\n\noperations. See 12 U.S.C. \xc2\xa74514. These reports, as well as other regulatory\ninformation obtained from the Enterprises by OFHEO in performing its duties,\nsometimes include sensitive proprietary information. OFHEO Letter at 2.\nAs explained in your letter, OFHEO desires to exchange regulatory information\nobtained from the Enterprises (including some proprietary information) with cer\xc2\xad\ntain other federal financial regulators in order to facilitate \xe2\x80\x9c fulfilling its safety\nand soundness mission.\xe2\x80\x9d Id. at 2. For purposes of this opinion, therefore, we\nassume that these arrangements will materially enhance OFHEO\xe2\x80\x99s performance\nof its statutory responsibilities. If such disclosures do take place, we are advised\nthat the governmental recipients of the information would be required to maintain\nits confidentiality and would, of course, be subject to the provisions of the TSA\nin their own handling and maintenance of that information. See id. at 2.\nThe TSA prohibits officers and employees of federal agencies from publishing\nor disclosing trade secrets and other confidential business information \xe2\x80\x9c to any\nextent not authorized by law.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1905.2 Because some of the proprietary\ninformation OFHEO wishes to share with other federal financial regulators would\nbe of the type otherwise covered by the TSA, you seek the Department\xe2\x80\x99s legal\nopinion whether the proposed provision of such information to other federal agen\xc2\xad\ncies under the circumstances outlined in your letter would violate the TSA.\n\nn.\nThere is significant precedential support for the view that the kind of disclosures\ndescribed in your letter would not violate the TSA. A number of federal court\nopinions have expressed the view that the TSA applies only to the public disclo\xc2\xad\nsure of covered information and does not apply to official intra-govemmental\ndisclosures of such information. Additionally, two opinions of this Office have\nconcluded that the TSA does not prohibit the exchange of trade secret or propri\xc2\xad\netary information between federal agencies for lawful governmental purposes \xe2\x80\x94\nat least where such disclosures are authorized by the Paperwork Reduction Act\n2 The TSA provides in pertinent part as followsWhoever, being an officer or employee o f the United States or o f any department or agency thereof,\nany person acting on behalf o f the Office o f Federal Housing Enterprise Oversight,\n. publishes, divulges,\ndiscloses, or makes known in any manner or to any extent not authonzed by law any information coming\nto him in the course of his employment or official duties or by reason of any examination or investigation\nmade by, or return, report or record made to or filed with, such department or agency or officer or employee\nthereof, which information concerns or relates to the trade secrets, processes, operations, style of work,\nor apparatus, or to the identity, confidential stausucal data, amount or source of any income, profits, losses,\nor expenditures o f any person, firm, partnership, corporation, or association,\nshall be fined under this title or imprisoned not more than one year, or both, and shall be removed\nfrom office or employment.\n18 U S C \xc2\xa7 1905 (emphasis added) The underscored phrase, extending the TSA to cover disclosures by \xe2\x80\x9c person[s]\nacting on behalf o f the [OFHEO],\xe2\x80\x9d was added by Pub L No. 102-550, tit XIII, \xc2\xa7 1353, 106 Stat at 3970 As\nshown by the Senate Report on a contemporaneous bill o f the same Congress containing the exact same provision,\nthe apparent purpose o f this addition to the statute was simply to \xe2\x80\x9c subjectU any consultant to the [OFHEOl to\nthe same criminal penalties for release o f confidential information as government employees \xe2\x80\x9d S. Rep. No. 102\xe2\x80\x94\n282, at 53 (1992).\n\n75\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nof 1980, Pub. L. No. 96-511, 94 Stat. 2812 ( \xe2\x80\x9c PRA\xe2\x80\x9d ), see 44 U.S.C. \xc2\xa7 3510(a)\n(Supp. I 1995), or by any other federal statute, either explicitly or implicitly. An\nadditional opinion of this Office, moreover, emphasizes the broader principle \xe2\x80\x94\ngrounded on the President\xe2\x80\x99s executive powers set forth in Article II of the Con\xc2\xad\nstitution \xe2\x80\x94 that the exchange of commercial regulatory information among federal\ngovernment agencies for legitimate government purposes is presumptively lawful,\nand that only explicit statutory language prohibiting such disclosure can overcome\nthat presumption.3 These opinions would suggest the conclusion that the TSA does\nnot apply to any authorized inter-agency disclosures. It is not necessary, however,\nfor us to reach that issue, because we conclude that the disclosures at issue here\nwould be \xe2\x80\x9c authorized by law\xe2\x80\x9d within the meaning o f the TSA itself. At a min\xc2\xad\nimum, the precedents call for a generous reading of statutes that may implicitly\nauthorize inter-agency disclosures such as those in question, and we thus read\nthe FHE Act as providing such authority here, as we discuss in Part II.C, below.\nA.\nIn Emerson Elec. Co. v. Schlesinger, 609 F.2d 898 (8th Cir. 1979), the Eighth\nCircuit considered whether the Equal Employment Opportunity Commission and\nthe Department of Labor\xe2\x80\x99s Office of Federal Contract Compliance could lawfully\nexchange certain information and records that those agencies had gathered from\nregulated companies reflecting the companies\xe2\x80\x99 compliance with federal employ\xc2\xad\nment discrimination laws. The court assumed arguendo that the information in\nquestion was of the type protected by the TSA. Based upon the pertinent\n\xe2\x80\x9c pronouncements of Congress, the President and the agencies\xe2\x80\x9d \xe2\x80\x94 notably, certain\nstatutory provisions authorizing inter-agency cooperation, see 42 U.S.C. \xc2\xa7 2000e4(g)(1) (1994) \xe2\x80\x94 the court first concluded that the particular exchanges of\ninformation proposed would be \xe2\x80\x9c authorized by law\xe2\x80\x9d within the meaning of the\nTSA even if that act were otherwise applicable to the inter-agency exchanges.\n609 F.2d at 907. The court then proceeded to elaborate upon the proper relation\xc2\xad\nship between inter-governmental information exchanges and the TSA.\nIt is again worth emphasizing that the disclosure contemplated\n. . . is between two agencies, both of which are charged with the\ntask of eliminating employment discrimination. We seriously doubt\nwhether \xc2\xa7 1905 was intended to prohibit any interagency informa\xc2\xad\ntion transfers. Since the Federal Reports Act, 44 U.S.C. \xc2\xa7 \xc2\xa7 3 5 0 1 3512, directly controls exchanges between agencies, it appears that\n3 An exam ple o f such an explicit statutory provision is contained in the Privacy Act. See 5 U S C \xc2\xa7552a(b)\n(1994) (providing that \xe2\x80\x9c [n]o agency shall disclose . . . to another agency\xe2\x80\x9d personal records covered by the Privacy\nAct, subject to listed exceptions). The category o f sensitive personal records protected by the Privacy Act is not\nimplicated by the disclosure o f commercial regulatory information proposed here\n\n76\n\n\x0cApplicability o f Trade Secrets Act to Intra-Governmental Exchange o f Regulatory Information\n\n\xc2\xa7 1905 was designed to apply only to public disclosures o f trade\nsecret material.\nId. at 907 (emphasis added).\n\nIn her separate opinion in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984),\nJustice O \xe2\x80\x99Connor expressed a similar view, observing: \xe2\x80\x9c The question of inter\xc2\xad\nagency use of trade secrets before 1972 is more difficult because the Trade Secrets\nAct most likely does not extend to such uses." Id. at 1023 (O\xe2\x80\x99Connor, J., concur\xc2\xad\nring in part and dissenting in part) (emphasis added). Other courts have also\nexpressed a restrictive interpretation of the TSA in this respect. See Tri-Bio Lab\xc2\xad\noratories, Inc. v. United States, 836 F.2d 135, 141 n.7 (3d Cir. 1987) ( \xe2\x80\x9c Because\nthe Trade Secrets Act . . . prohibits only public disclosure of application data,\nit does not bar internal agency use of submitted data.\xe2\x80\x9d ) (emphasis added), cert,\ndenied, 488 U.S. 818 (1988); Interco, Inc. v. FTC, 490 F. Supp. 39, 40 (D.D.C.\n1979) (documents including trade secrets could be disclosed by FTC to State\nAttorneys General who provide reasonable assurances of confidentiality because\nsuch disclosure would be \xe2\x80\x9c authorized by law\xe2\x80\x9d under a broad reading of section\n6(0 of the Federal Trade Commission Act). Cf. United States v. Wallington, 889\nF.2d 573, 579 (5th Cir. 1989) (in order to avoid arbitrary enforcement, court nar\xc2\xad\nrowly construed TSA to apply only to \xe2\x80\x9c confidential\xe2\x80\x9d information and \xe2\x80\x9c further\ndefined \xe2\x80\x98confidential\xe2\x80\x99 to require a t least that the government agency in question\nhave an official policy that the information not be disclosed (or that nondisclosure\nbe mandated by statute or regulation)\xe2\x80\x9d ).4\nThis Office invoked the above-quoted interpretation of the court in Emerson\nElectric in reaching the conclusion that, in light of the Paperwork Reduction Act,\nthe TSA did not prohibit the Department of Justice from sharing proprietary\ninformation obtained from companies under the National Cooperative Research\nand Production Act (\xe2\x80\x9c NCRPA\xe2\x80\x9d ), 15 U.S.C. \xc2\xa7 4305(d) (1994), with other federal\ndepartments and agencies. See Memorandum for Anne Bingaman, Assistant\nAttorney General, Antitrust Division, from Walter Dellinger, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Sharing o f M aterials with other Federal\nAgencies (May 31, 1994) ( \xe2\x80\x9c 1994 Opinion\xe2\x80\x9d ). As we noted in that opinion:\nWe have also considered whether provision of the information\nto other federal agencies might be prohibited by the Trade Secrets\nAct (TSA), 18 U.S.C. \xc2\xa7 1905, which prohibits federal officials from\n4 But see Shell Oil Co. v. Department o f Energy, A l l F. Supp 413. 419 (D Del 1979), a jfd , 631 F.2d 231\n(3d Cir. 1980), cert denied, 450 U S 1024 (1981), where the court assumed, without deciding, that the TSA applies\nto inter-agency disclosures, afier stating \xe2\x80\x9c While a number o f opinions of the Attorney General have suggested,\nlargely based on practical considerations, that [the TSA] was not intended to apply to inter-agency transfers of\nproprietary information, no court appears to have so held \xe2\x80\x9d The Shell Oil opimon was issued before the Eighth\nCircuit\xe2\x80\x99s opinion in Emerson Electric In any event, the Shell Oil court went on to hold that the Department of\nEnergy was \xe2\x80\x9c authorized by law\xe2\x80\x9d to disclose the proprietary data in question to any federal agency with a legitimate\nneed for such information pursuant to the Federal Energy Administration Act, 15 U S C \xc2\xa7\xc2\xa7761-790h (1994)\n\n77\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ndisclosing, \xe2\x80\x9c in any manner or to any extent not authorized by law,\xe2\x80\x9d\ntrade secrets or similar information in the possession of federal\nagencies. If the exchanges of information are not prohibited by the\nNCRPA or the [Hart-Scott-Rodino Antitrust Improvements Act],\nwe believe they would be authorized by 44 U.S.C. \xc2\xa73510 (part\nof the Paperwork Reduction Act (PRA)), which provides that \xe2\x80\x9c an\nagency may make available to another agency, information obtained\npursuant to an information collection request if the disclosure is\nnot inconsistent with any applicable law.\xe2\x80\x9d The Eighth Circuit held\nthe TSA inapplicable to inter-agency information transfers in\nEmerson E lectric Co. v. Schlesinger, 609 F.2d 898, 907 (1979),\nstating, \xe2\x80\x9c Since the Federal Reports Act (since supplanted by the\nPRA, as quoted above) directly controls exchanges between agen\xc2\xad\ncies, it appears that \xc2\xa7 1905 was designed to apply only to public\ndisclosures of trade secret material.\xe2\x80\x9d\n1994 Opinion at 3 n.4.\nWe expressed similar views in a 1981 opinion concluding that confidential trade\ninformation obtained by the Secretary of Commerce pursuant to the Export\nAdministration Act ( \xe2\x80\x9c EAA\xe2\x80\x9d ) may be lawfully released to federal law enforcement\nand intelligence agencies. See D isclosure o f Information Collected under the\nExport Administration A ct , 5 Op. O.L.C. 255 (1981). Although that opinion pri\xc2\xad\nmarily concerned interpretation of the EAA and the Paperwork Reduction Act,\nit also rejected the Commerce Department\xe2\x80\x99s argument that inter-agency disclosure\nof the information would violate the TSA:\nWe do not agree with the Department of Commerce that 18\nU.S.C. \xc2\xa7 1905, which prohibits the disclosure of confidential trade\ninformation unless authorized by law, would bar interagency disclo\xc2\xad\nsure because, assuming no other statutory prohibition against disclo\xc2\xad\nsure, \xc2\xa73510 of the Paperwork Reduction Act would authorize the\ndisclosure. 44 U.S.C. \xc2\xa73510.\nId. at 261 n.3.5\n\nAnother opinion of this Office, although not directly addressing the TSA, lends\nfurther general support to the view that federal statutes prohibiting public disclo\xc2\xad\nsure of proprietary regulatory information do not prohibit the exchange of such\ninformation between federal agencies for legitimate government purposes. See\nInter-Departm ental Disclosure o f Information Submitted Under the Shipping Act\n5 The opinion further observed. \xe2\x80\x9c The question whether 18 U.S C \xc2\xa7 1905 applies to intra-govemmental transfers\n. . has never been resolved.\xe2\x80\x9d Id at 262 n 6. Although it did not seek to resolve that question, the opinion did\nestablish a framework for construing the TSA\xe2\x80\x99s phrase \xe2\x80\x9c authorized by law\xe2\x80\x9d that provides the basis for our analysis\nhere. See Part II.C, infra.\n\n78\n\n\x0cApplicability o f Trade Secrets Act to Intra-Govemmental Exchange o f Regulatory Information\n\no f 1984, 9 Op. O.L.C. 48 (1985) (\xe2\x80\x9c Shipping Act Opinion\xe2\x80\x9d ). There, we concluded\n\nthat the confidentiality provisions of section 6(j) of the Shipping Act, 46 U.S.C.\napp. \xc2\xa7\xc2\xa71701-1719 (Supp. II 1984),6 do not prohibit the Federal Maritime\nCommission from disclosing Shipping Act information to other federal govern\xc2\xad\nment agencies. Id. at 48-49. In reaching that conclusion, we discussed the broader\nconstitutional considerations that may be implicated by legislative restrictions on\nthe disclosure of regulatory information between executive branch departments\nand agencies for official purposes. Referring to \xe2\x80\x9c the general presumption that\ninformation obtained by one federal government agency is to be freely shared\namong federal government agencies,\xe2\x80\x9d and after noting that \xe2\x80\x9c [i]t is axiomatic that\nall information and documents in the possession of Executive Branch agencies\nare within the control of the President as the head of the Executive Branch,\xe2\x80\x9d\nid. at 52-53, we continued:\nWe believe it follows from these general constitutional principles\nthat a decision by Congress to restrict the flow of information\namong federal agencies when such information relates to the\nperformance of the official duties of these agencies must be\nexecuted by legislation that leaves no doubt as to Congress\xe2\x80\x99 intent.\nParticularly regarding the development by the President o f his for\xc2\xad\neign policy, it would be untenable to read into the statute at issue\nhere an implied intent to deny to those subordinates of the President\ncharged with the formulation of foreign policy those documents and\ninformation deemed relevant to that formulation.\nId. at 53. We therefore concluded that section 6(j) of the Shipping Act, as its\nlanguage indicates, prohibits only public disclosure of information obtained under\n\nthat Act and that such information may be disclosed for official purposes to other\nfederal agencies or executive branch departments.\nThe Trade Secrets Act would not appear to satisfy the standards of specificity\nand clarity described in our Shipping Act opinion \xe2\x80\x94 i.e., \xe2\x80\x9c legislation that leaves\nno doubt as to Congress\xe2\x80\x99 intent\xe2\x80\x99 \xe2\x80\x99 \xe2\x80\x94 as necessary for legislation to prohibit the\nofficial exchange of commercial regulatory records between executive branch\nagencies.7 On the contrary, there is more than considerable doubt that Congress\n6 Section 6(j) o f ihe Shipping Act provides in relevant part.\nExcept for an agreement filed under section 1704 of this Appendix, information and documentary material\nfiled with the Commission under section 1704 o f this Appendix or this section is exempt from disclosure\nunder section 552 o f Utle 5 [United States Code the Freedom of Information Act] and may not be made\npublic except as may be relevant to an administrative or judicial action or proceeding This section does#\nnot prevent disclosure to either body of Congress or to a duly authorized committee or subcommittee\nof Congress.\n46 U.S C app. 1705(j) (emphasis added)\n7 Earlier opinions o f the Attorney General are also consistent with the conclusion we reach here In an opinion\nconcluding that a predecessor trade secrets nondisclosure statute similar to the TSA (section 708 of the Act of\nContinued\n\n79\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nintended the TSA to criminalize such intra-govemmental exchanges, which do\nnot involve the kind of misuse or misappropriation of proprietary information\nwhich the TSA was intended to forestall. See Emerson Electric, 609 F.2d at 906.\nAlthough the foregoing judicial and administrative precedents support the view\nthat the proposed disclosure of proprietary information to other agencies is not\nthe kind of disclosure that the TSA was intended to prohibit, we need not decide\nhere whether the TSA is wholly inapplicable to authorized inter-agency disclo\xc2\xad\nsures. Taking into account the background of these precedents, we believe that\nthe provisions of the Federal Housing Enterprises Act (together with OFHEO\nregulations recently promulgated thereunder, see Part II.D, infra) provide adequate\nauthorization for such disclosures to fall within the \xe2\x80\x9c authorized by law\xe2\x80\x9d exception\nto the TSA \xe2\x80\x99s prohibitions.\nB.\nBefore turning to the FHE Act, we first consider the availability of the Paper\xc2\xad\nwork Reduction Act as a source o f authority for the particular category of disclo\xc2\xad\nsures contemplated here. That statute warrants consideration because the above\xc2\xad\nquoted opinions of this Office emphasized that the inter-agency exchanges of\ninformation which they approved had been affirmatively authorized by the PRA\nand were therefore \xe2\x80\x9c authorized by law\xe2\x80\x9d within the meaning of the TSA. See\n1994 Opinion at 3 n.4; 5 Op. O.L.C. at 261 n.3. Similarly, the court in Emerson\nElectric bolstered its conclusion that the TSA applies \xe2\x80\x98\xe2\x80\x98only to public disclosures\xe2\x80\x99 \xe2\x80\x99\nby stressing that the Federal Reports Act (predecessor statute to the PRA) \xe2\x80\x9c con\xc2\xad\ntrols exchanges between agencies.\xe2\x80\x9d 609 F.2d at 907.\nThe PRA provides in relevant part:\n(a) The Director [of the Office of Management and Budget] may\ndirect an agency to make available to another agency, or an agency\nm ay make available to another agency, information obtained by a\nSept 8, 1916, 39 Stat. 756, 798) did not prohibit the U S. Tariff Commission from providing the W ar Trade Board\ncertain trade secrets obtained by the Commission in performing its regulatory duties, the Attorney General stated:\nIt will be noted that the inhibition in the foregoing section is directed against the disclosure of trade\nsecrets \xe2\x80\x9c to any person \xe2\x80\x9d It is a well-recognized rule o f law that the sovereign power is not included\nby the general terms o f a statute.\nThese considerations, it seems to me, are persuasive o f an interpretation of section 708, which, m pursu\xc2\xad\nance o f the cooperation authorized by section 707, would not preclude the availability o f all the information\ngathered by the Tariff Commission fo r any appropriate use by any Department or independent branch\no f the Government, including the War Trade Board\nT ariff C om m ission\xe2\x80\x94 Disclosure o f Trade Secrets, 31 Op. A tt\xe2\x80\x99y Gen 541, 542-43 (1919) (emphasis added). See\nalso Authority o f Federal Communications Commission to Disclose Confidential Information to Senate Committee\non Interstate and Foreign Commerce, 41 Op. A tt\xe2\x80\x99y Gen. 221 (1955). There, in concluding that the Federal Commu\xc2\xad\nnications C om m ission\xe2\x80\x99s disclosure of certain proprietary information to a Senate committee was \xe2\x80\x9c authorized by\nlaw \xe2\x80\x9d w ithin the meaning o f the TSA, the Attorney General opined that the statutory or other authorization for\nsuch intra-govemmental disclosure of such material may be \xe2\x80\x9c reasonably implied rather than express.\xe2\x80\x9d Id at 228\n\n80\n\n\x0cApplicability o f Trade Secrets Act to Intra-Govemmental Exchange o f Regulatory Information\n\ncollection o f information if the disclosure is not inconsistent with\n\napplicable law.\n44 U.S.C. \xc2\xa7 3510(a) (emphasis added).\nIt does not appear, however, that the particular category of information ref\xc2\xad\nerenced in your opinion request is the kind of information covered by the PRA \xe2\x80\x94\nthat is, information obtained by a \xe2\x80\x9c collection of information,\xe2\x80\x9d see 44 U.S.C.\n\xc2\xa73502(3) (Supp. I 1995). In this regard, your letter refers to \xe2\x80\x9c reports on [the]\nfinancial condition and operations\xe2\x80\x9d of the Enterprises required by OFHEO; other\nspecial reports submitted by the Enterprises that, in the judgment of the Director,\nare necessary to carry out the purposes of the 1992 Act; and other \xe2\x80\x9c sensitive,\nproprietary data\xe2\x80\x9d received from the Enterprises by OFHEO \xe2\x80\x9c [i]n carrying out\nits oversight authorities.\xe2\x80\x9d OFHEO Letter at 2.\nUnder the PRA, the term \xe2\x80\x9c collection of information\xe2\x80\x9d is defined as\nthe obtaining, causing to be obtained, soliciting, or requiring the\ndisclosure to third parties or the public, of facts or opinions by\nor for an agency, regardless of form or format, calling for either \xe2\x80\x94\n(i) answers to identical questions posed to, or identical reporting\nor recordkeeping requirements imposed on, ten or more persons,\nother than agencies, instrumentalities, or employees o f the United\nStates\', or\n\n(ii) answers to questions posed to agencies, instrumentalities, or\nemployees o f the United States which are to be used fo r general\nstatistical purposes\', . . . .\n44 U.S.C. \xc2\xa7 3502(3)(A) (emphasis added).\nThe information obtained by OFHEO from the Enterprises does not appear to\nhave been obtained by a \xe2\x80\x9c collection of information\xe2\x80\x9d that conforms to the defini\xc2\xad\ntion under either subparagraph (i) or (ii). Subparagraph (i) appears inapplicable\nbecause OFHEO\xe2\x80\x99s collection efforts are not imposed on \xe2\x80\x9c ten or more persons.\xe2\x80\x9d\nRather, it appears that they are imposed only on the two Enterprises. Subparagraph\n(ii) likewise appears inapplicable based upon both of its criteria. The Enterprises\nare both private entities, rather than agencies or instrumentalities of the United\nStates. See 12 U.S.C. \xc2\xa7 1716b (1994) (Fannie Mae re-established as \xe2\x80\x9c a Govern\xc2\xad\nment-sponsored private corporation\xe2\x80\x9d ); American Bankers Mortgage Corp. v. Fed\xc2\xad\neral Home Loan M ortgage Corp., 75 F.3d 1401, 1408 (9th Cir.) (Freddie Mac\nis not a government entity), cert, denied , 519 U.S. 812 (1996); Patriot, Inc. v.\nHUD, 963 F. Supp. 1, 7 (D.D.C. 1997) (\xe2\x80\x9c Fannie Mae is a \xe2\x80\x98private corporation,\xe2\x80\x99\n12 U.S.C. \xc2\xa7 1716b, owned by its private shareholders, and as a private entity,\nit does not issue regulations.\xe2\x80\x9d ); Liberty Mortgage Banking, Ltd. v. Federal Home\n81\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nLoan M ortgage Corp., 822 F. Supp. 956, 958-60 (E.D.N.Y. 1993) (Freddie Mac\n\nis a private corporation rather than a government agency). Moreover, it does not\nreadily appear that the information in question here is to be used for general statis\xc2\xad\ntical purposes. Rather, it is to be used for specific regulatory and oversight pur\xc2\xad\nposes bearing upon the Enterprises.\nBecause the information at issue does not appear to have been obtained through\na \xe2\x80\x9c collection of information\xe2\x80\x9d within the meaning of the PRA, we do not believe\nthat the PRA \xe2\x80\x99s authorization for inter-agency disclosures, see 44 U.S.C. \xc2\xa7 3510(a),\nmay be relied upon as affirmative authority for the disclosures proposed here.\nThat raises the question whether the proposed inter-agency disclosure is otherwise\n\xe2\x80\x9c authorized in a general way by law,\xe2\x80\x9d Liquidation o f Reconstruction Finance\nCorporation \xe2\x80\x94 D isclosure o f Information, 41 Op. Att\xe2\x80\x99y Gen. 166, 169 (1953). We\nbelieve that it is.\nC.\nThis Office has previously considered whether certain information or records\nnot covered by the express authorizations of the PRA (and also exempt from\ndisclosure to the public under the FOLA, as in the case of trade secrets) may\nnonetheless be disclosed or provided by one federal agency to another for official\nagency purposes. See 5 Op. O.L.C. 255 (1981). As we framed the issue in that\nopinion:\nThe existence of an affirmative authorization in the Paperwork\nReduction Act for certain information arguably implies that some\nauthorization is required, whether by statute, either expressly or by\nnecessary implication, or by substantive regulation. Moreover, it\nmay be necessary to determine whether there is an authorization\nfor disclosure to federal law enforcement and intelligence agencies\nto avoid the strictures of 18 U.S.C. \xc2\xa7 1905.\nId. at 262. We then described the kind of authorization \xe2\x80\x9c by law\xe2\x80\x9d that would\n\nsatisfy this concern when the PRA is not apparently applicable:\nThe phrase \xe2\x80\x9c authorized by law\xe2\x80\x9d does not mean that the authoriza\xc2\xad\ntion must be \xe2\x80\x9c specifically authorized by law\xe2\x80\x9d ; it is sufficient that\nthe disclosure is \xe2\x80\x9c authorized in a general way by law.\xe2\x80\x9d 41 Op.\nAtt\xe2\x80\x99y Gen. 166, 169 (1953).\nId. We then listed some examples of the kinds of authorizations that satisfy the\n\nforegoing standard, ranging from subpoenas and requests from congressional\ncommittees, to substantive agency regulations that expressly or implicitly authorize\n82\n\n\x0cApplicability o f Trade Secrets Act to Intra-Govemmental Exchange o f Regulatory Information\n\nthe waiver of confidentiality, to authorizations that are based upon \xe2\x80\x9c necessary\nstatutory implication.\xe2\x80\x9d Id. at 263.8\nApplying these standards to the matter presented here, we believe the legislation\nestablishing the OFHEO and its powers and responsibilities (i.e., the FHE Act)\ncontemplates a degree of inter-agency cooperation and interaction that reasonably\nimplies authorization to exchange regulatory information obtained by OFHEO\nwith cooperating federal agencies in furtherance of OFHEO\xe2\x80\x99s statutory purposes.\nC f Interco, 490 F. Supp. at 44, 46 (construing section 6(f) of FTC Act to authorize\n\xe2\x80\x9c non-public release\xe2\x80\x9d of trade secret material to State Attorneys General for law\nenforcement purposes, even while acknowledging that the \xe2\x80\x9c statute does not on\nits face authorize [such] release\xe2\x80\x9d ); Shell Oil Co. v. DOE, A ll F. Supp. at 433.9\nInitially, we note that the Director of OFHEO is broadly authorized to \xe2\x80\x9c take\nsuch actions . . . as the Director determines necessary\xe2\x80\x9d regarding a broad range\nof matters, including \xe2\x80\x9c examinations of the enterprises,\xe2\x80\x9d \xe2\x80\x9c other matters relating\nto safety and soundness [of the enterprises],\xe2\x80\x9d and \xe2\x80\x9c conducting research and finan\xc2\xad\ncial analysis.\xe2\x80\x9d 12 U.S.C. \xc2\xa74513(b)(2), (5), and (10). In exercising this broad\nauthority, the Director could reasonably conclude that appropriately controlled\nregulatory information exchanges with other federal financial regulators are\nneeded to maintain the level of knowledge and understanding demanded in the\nhighly complex and technical field of federal financial regulation. In this regard,\nwe note that OFHEO\xe2\x80\x99s letter to this Office asserts that the proposed exchanges\nof supervisory information would \xe2\x80\x9c enable[] Federal agencies to proactively\naddress regulatory compliance more effectively and efficiently.\xe2\x80\x9d OFHEO Letter\nat 3. OFHEO further stales that it seeks to exchange the information in question\n\xe2\x80\x9c [i]n fulfilling its safety and soundness mission.\xe2\x80\x9d Id. at 2. In view of such rep\xc2\xad\nresentations, the proposed reciprocal inter-agency exchanges would appear to fall\nwithin the broad discretionary authority granted the Director under 12 U.S.C.\n\xc2\xa7 4513(b).\nAdditional, and more specific, grants of authority to the OFHEO Director under\nthe FHE Act reinforce our conclusion that the statute taken as a whole provides\nadequate, albeit implicit, authorization for the proposed inter-agency disclosures.\n8 In this regard, we believe that an application o f the Paperwork Reduction Act that would effectively bar official\npurpose inter-agency disclosures by negative implication would be plainly inconsistent with lhat legislation\xe2\x80\x99s stated\nobjective \xe2\x80\x9c to maximize the utility o f information created, collected, maintained, used, shared and disseminated by\nor for the Federal Government \xe2\x80\x9d 44 U S.C \xc2\xa7 3501(2) (Supp. I 1995).\n9 In holding that the Federal Energy Administration Act provided adequate authority for inter-agency disclosure\nof energy company financial and operational information that would otherwise be barred by the TSA, the court\nin the Shell Oil case stated.\nGiven the purpose o f the National Energy Information System and the express declaration of a policy\nfavonng agency cooperauon with respect to energy data, it is difficult to argue lhat Congress did not\ncontemplate disclosure o f energy information by the Administrator at least to those other federal agencies\nwho are vested with policy making responsibility in the energy area\n477 F Supp at 433 The court went on to hold that the information could be disclosed to any other federal agency\nwhich had a legitimate need for that information. Id. at 433-35. See also Emerson Electric, 609 F.2d at 906, where\nthe court, in referring to the provisions of the Federal Reports Act (the predecessor version of the PRA), stated\n\xe2\x80\x9c the provisions o f the Act are to be read with an eye toward encouraging interagency cooperation . .\n\n83\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nFor example, the Act provides: \xe2\x80\x9c In carrying out the duties of the Office, the\nDirector may use information, services, staff, and facilities of any executive\nagency, independent agency, or department on a reimbursable basis, with the con\xc2\xad\nsent of such agency or department.\xe2\x80\x9d 12 U.S.C. \xc2\xa7 4 5 15(c). Additionally, 12 U.S.C.\n\xc2\xa7 4 5 17(c) authorizes OFHEO, through the Director, to contract with other federal\nbanking agencies (such as the Comptroller of the Currency, the FDIC, and the\nOffice of Thrift Supervision) for the services of examiners to assist OFHEO in\nconducting examinations of the Enterprises required by the Act. The examiners\nappointed from other agencies \xe2\x80\x9c shall have the same authority and . . . shall be\nsubject to the same disclosures, prohibitions, obligations, and penalties as are\napplicable to examiners employed by the Federal Reserve banks.\xe2\x80\x9d Id. \xc2\xa7 4517(d).\nIn authorizing OFHEO to use the information, personnel, and services of other\nagencies in carrying out its statutory responsibilities, it is reasonable to assume\nthat these provisions contemplate that OFHEO could disclose its regulatory\ninformation to those agencies insofar as necessary to obtain the authorized assist\xc2\xad\nance or support.\nIn sum, we conclude that these and other provisions of the OFHEO legislation\nprovide adequate \xe2\x80\x9c general\xe2\x80\x9d authorization for OFHEO to disclose proprietary\nregulatory information to other federal agencies for the official purposes stated,\nand subject to appropriate controls to maintain confidentiality, without violating\nthe TSA .10\n\nD.\nWe note finally that, subsequent to the submission of the request for this\nopinion, OFHEO promulgated new regulations governing the release of its docu\xc2\xad\nments and information. See Releasing Information, 63 Fed. Reg. 70,998 (1998)\n(to be codified at 12 C.F.R. pt. 1710). Two of the new provisions appear pertinent\nto the issue of inter-agency disclosure presented here. The new \xe2\x80\x9c General rule\xe2\x80\x9d\nin \xc2\xa7 1710.6 provides:\nExcept as authorized by this part or as otherwise necessary in\nperforming official duties, no employee shall in any manner dis\xc2\xad\nclose or permit disclosure of any document or information in the\n10 As indicated in our Shipping Act Opinion (discussed infra pp 78-80), only a clear and specific legislative\nprohibition is sufficient to overcome \xe2\x80\x9c the general presumption that information obtained by one federal government\nagency is to be freely shared among federal government agencies\xe2\x80\x9d when such information \xe2\x80\x9c relates to the [official]\nperform ance o f the official duties of these agencies \xe2\x80\x9d 9 Op O L C at 52-53 That position could be said to rest\non the more fundamental proposition that executive agencies have inherent authority to exchange such information\nfor valid official purposes in the absence of specific legislation, or constitutional provision, prohibiting such exchange.\nBecause w e conclude that the provisions o f the legislation establishing OFHEO adequately authorize the disclosures\nin question by statutory implication, and because the information at issue here is proprietary in nature and thus\nraises special considerations, we need not base our conclusion on an assertion of such inherent authority.\n\n84\n\n\x0cApplicability o f Trade Secrets Act to Intra-Govemmental Exchange o f Regulatory Information\n\npossession of OFHEO that is confidential or otherwise of a non\xc2\xad\npublic nature, including that regarding OFHEO or [the Enterprises].\n12 C.F.R. \xc2\xa7 1710.6. Further, with respect to OFHEO\xe2\x80\x99s reports of examinations\nof the Enterprises, which may include confidential financial information of the\ntype otherwise covered by the TSA, the new regulations provide: \xe2\x80\x9c The Director\nmay make available reports of examination for the confidential use of Federal\nagencies responsible for investigating or enforcing applicable Federal laws.\xe2\x80\x9d Id.\n\xc2\xa7 1710.8(c).\nThese new regulations provide further support for our conclusion. As recognized\nin our 1981 opinion, duly promulgated agency regulations based on valid statutory\nauthority provide a lawful source of disclosure authority for purposes of the TSA\xe2\x80\x99s\n\xe2\x80\x9c authorized by law\xe2\x80\x9d exception. See 5 Op. O.L.C. at 262 (stating that agency\nregulations may provide the requisite authorization by law, \xe2\x80\x9c provided that the\nauthority on which the regulation is based includes, either expressly or by nec\xc2\xad\nessary implication, the power to waive the confidentiality of the information\xe2\x80\x9d ).\nCourts have held to the same effect. See, e.g., CNA Fin. Corp. v. Donovan, 830\nF.2d 1132, 1138 (D.C. Cir. 1987), cert, denied, 485 U.S. 977 (1988); Doctors\nHosp. o f Sarasota, Inc. v. Califano, 455 F. Supp. 476, 481 (M.D. Fla. 1978)\n( \xe2\x80\x9c information disclosure pursuant to a validly enacted agency regulation is author\xc2\xad\nized by law for purposes of 18 U.S.C. \xc2\xa7 1905\xe2\x80\x9d ). Here, OFHEO expressly invoked\nthe provisions of 12 U.S.C. \xc2\xa74513 (discussed above) as well as other provisions\nof the FHE Act as providing authority for the regulations in question. Thus, these\nregulations fortify our conclusion that disclosures of confidential information made\npursuant to them would be \xe2\x80\x9c authorized by law\xe2\x80\x9d and thus outside the prohibitions\nof the TSA. For example, 12 C.F.R. \xc2\xa7 1710.8(c) authorizes the Director to make\navailable reports of examinations of the Enterprises \xe2\x80\x9c for the confidential use of\nFederal agencies responsible for investigating or enforcing applicable Federal\nlaws.\xe2\x80\x9d We understand that these reports may include the kind of confidential or\nproprietary business information otherwise covered by the TSA. This regulation\nwould authorize disclosures of such information to other financial regulatory agen\xc2\xad\ncies, provided that the agencies in question have some federal investigatory or\nenforcement authority.11\n11 It should be recognized that OFHEO\xe2\x80\x99s disclosures o f confidential or proprietary information must comply with\nits own regulations even if such disclosures are not prohibited by the TSA. Thus, new \xc2\xa7 1710 6 o f the regulations\nspecifically provides that OFHEO employees may disclose confidential information in possession of OFHEO only\nif the disclosure is authorized by part 1710 or is otherwise \xe2\x80\x9c necessary in performing official duties \xe2\x80\x9d Apart from\n\xc2\xa71710.6 itself and \xc2\xa71710 8 (governing inter-agency disclosure o f reports of examinations of the Enterprises), we\nhave not identified any other provision o f part 1710 that authonzes disclosure of confidential or proprietary informa\xc2\xad\ntion to other federal agencies. Consequently, \xc2\xa7 1710 6 appears to limit O FHEO\xe2\x80\x99s disclosures of confidential informa\xc2\xad\ntion to other agencies (other than that covered by \xc2\xa7 1710 8) to situations where the disclosure is considered \xe2\x80\x9c necessary\nin performing official duties \xe2\x80\x9d We believe that the Director would have considerable discretion, however, in deter\xc2\xad\nmining whether particular disclosures are \xe2\x80\x9c necessary\xe2\x80\x9d within the meaning of the regulation\n\n85\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nConclusion\nFor all the foregoing reasons, we conclude that the type o f inter-agency, official\npurpose disclosures set forth in your letter would be \xe2\x80\x9c authorized by law\xe2\x80\x9d within\nthe meaning of the Trade Secrets Act and therefore would not violate that act.\nWILLIAM MICHAEL TREANOR\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n86\n\n\x0c'


b'February 27, 1978\n\n78-12\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, DEPARTMENT OF\nENERGY\nArms Control and Disarmament Act\n(22 U.S.C. \xc2\xa7 2576)\xe2\x80\x94 Arms Control Impact\nStatements\xe2\x80\x94 Nonweapons Program\n\nIn response to your request, we have considered the question whether \xc2\xa7 36(a)\nof the Arms Control and Disarmament Agency Act, as amended, 89 Stat. 758,\n22 U .S.C . \xc2\xa7 2576(a), permits the Director of the Arms Control and Disarma\xc2\xad\nment Agency (ACDA) to require the Department of Energy to prepare an\n\xe2\x80\x9c Arms Control Impact Statem ent\xe2\x80\x9d (ACIS) for research, development, or\nproduction programs that do not involve \xe2\x80\x9c w eapons\xe2\x80\x9d technology. We under\xc2\xad\nstand that this would involve nonmilitary programs that may affect arms control\npolicy. For the reasons stated below, we conclude that \xc2\xa7 36(a) does not require\nthe preparation of an ACIS for programs not designed or intended to be applied\nas weapons.\nSection 36(a) of the Arms Control and Disarmament Agency Act provides as\nfollows:\n(a) In order to assist the Director in the performance o f his duties\nwith respect to arms control and disarmament policy and negotia\xc2\xad\ntions, any Government agency preparing any legislative or budgetary\nproposal for\xe2\x80\x94\n(1) any program of research, development, testing, engineer\xc2\xad\ning, construction, deploym ent, or modernization with respect to\nnuclear arm am ents, nuclear implements o f war, military facilities\nor military vehicles designed or intended primarily for the delivery\no f nuclear weapons,\n(2) any program of research, development, testing, engineer\xc2\xad\ning, construction, deploym ent, or modernization with respect to\narm am ents, amm unition, implements o f war, or military facilities,\nhaving\xe2\x80\x94\n(A) an estimated total program cost in excess of $250,000,000,\nor\n54\n\n\x0c(B) an estimated annual program cost in excess of $50,000,000,\nor\n(3)\nany other program involving weapons systems or technol\xc2\xad\nogy which such Government agency or the Director believes may\nhave a significant impact on arms control and disarmament policy\nor negotiations,\nshall, on a continuing basis, provide the Director with full and timely\naccess to detailed information, in accordance with the procedures\nestablished pursuant to section 2575 of this title, with respect to the\nnature, scope, and purpose of such proposal.\nThe section requires reports to the Director for three categories of programs: (1)\nall programs involving nuclear armaments, implements of war, or their delivery\nsystems; (2) programs involving \xe2\x80\x9c armaments, ammunition, implements of\nwar, or military facilities\xe2\x80\x9d costing $250 million or more or $50 million per\nyear; and (3) \xe2\x80\x9c any other program involving weapons systems or technology"\nwhich the agency or the Director of ACDA \xe2\x80\x9c believes may have a significant\nimpact on arms control and disarmament policy or negotiations.\xe2\x80\x9d [Emphasis\nadded.] These reports are the first stage in preparing an A C IS .1 Since the\nprograms in question do not fall within category (1) or (2), the issue is whether\nthe term \xe2\x80\x9c w eapons\xe2\x80\x9d in subsection (a)(3) modifies \xe2\x80\x9c technology\xe2\x80\x9d as well as\n\xe2\x80\x9c system s,\xe2\x80\x9d so as to require reports only for \xe2\x80\x9c weapons technology.\xe2\x80\x9d\nWe understand that ACDA believes that \xe2\x80\x9c w eapons\xe2\x80\x9d does not modify\n\xe2\x80\x9c technology\xe2\x80\x9d and that it can therefore require an ACIS for such nonweapons\nprograms as the breeder reactor. On the other hand, the Department of Energy\nconcludes that established principles of statutory construction and the legislative\nhistory demonstrate that \xc2\xa7 36(a)(3) should be read to mean \xe2\x80\x9c weapons systems\nor weapons technology.\xe2\x80\x9d\nIt is a familiar principle of statutory construction that terms should be read in\ncontext and that specific terms control general ones. See, Philbrook v.\nGlodgett, 421 U.S. 707, 713-714 (1975); Weyerhauser S.S. Co. v. United\nStates, 372 U.S. 597, 600-601 (1963). The whole of \xc2\xa7 36(a) is concerned with\nthe effect of programs for weapons, delivery systems, and supporting facilities\non arms control. Subsections (1) and (2) require reports on weapons programs\nthat are significant per se because of their nature or size. Subsection (3), in this\ncontext, gives ACDA discretion to require reports on lesser weapons programs\nthat may have significant effects. The structure of subsection (3) is consistent\nwith this interpretation. Modifying a series of terms with an adjective placed at\nthe head is a common way of preventing needless repetition. It is reasonable to\nconclude, as you have, that the draftsman of \xc2\xa7 36(a) did not intend to expand\nthe scope o f subsection (3) beyond the remainder of the section merely by using\na familiar stylistic device.\n\'U nder \xc2\xa7 36(b)(2)(A ) o f the Act, an ACIS must accom pany all requests to Congress for\nauthorization or appropriations for category (I) or (2) programs. Under \xc2\xa7 36(b)(2)(B), a category\n(3) program requires an ACIS only if NSC accepts the D irector\xe2\x80\x99s advice that the program will have\na significant impact on arm s control policy or negotiations.\n\n55\n\n\x0cThe legislative history supports this interpretation. Section 36(a)(3) origi\xc2\xad\nnated in the House o f R epresentatives,2 and the legislative history is particu\xc2\xad\nlarly significant. The general explanation in the House committee report states\nthat \xc2\xa7 36 would:\nGenerate[s] vital and necessary information for both the Executive\nBranch and Congress by:\n(a) providing for [ACDA] participation in assessing and analyzing\nthe impact on arms control and disarmament policy o f proposed\nweapons programs or technology . . . ,3\nThis, it continues, would allow Congress to exercise an informed foreign\npolicy judgm ent \xe2\x80\x9c in the all important area o f proposed defense program s.\xe2\x80\x9d 4\nThe bill would accomplish this by requiring reporting o f all weapons programs\nabove its dollar limits. In addition, the report continues:\n. . . For weapons programs which fall below the $50 million annual\nlimit and policy issues with no expenditure as such, the legislation\nprovides a discretionary authority for the Director to make an arms\ncontrol and disarmament assessment and analysis identical to the\nprocedure outlined above. The intent in providing this discretionary\nauthority to the Director is to include programs which, regardless of\ncost, have a potentially significant arms control impact. Included in\nthis intent are items of a \xe2\x80\x9c sem inal\xe2\x80\x9d nature, such as major philosophi\xc2\xad\ncal or doctrinal changes in defense posture or new weapons concepts\nin various stages of research and development\xe2\x80\x94 any o f which could\nhave far-reaching implications for arms control and disarmament\npolicy and planning.5\nThe section-by-section analysis of the bill states that \xe2\x80\x9c weapons systems or\ntechnology\xe2\x80\x9d refers to the above program s.6 Finally, Representative Zablocki,\nChairman of the House Foreign Affairs Committee and floor manager of the\nbill, said in his opening statement that the purpose of \xc2\xa7 36(a) was to allow\nACDA participation in the assessment o f \xe2\x80\x9c defense program s.\xe2\x80\x9d 7\nIt thus appears that the bill was concerned with the effect of \xe2\x80\x9c defense\nprogram s\xe2\x80\x9d on arms control. M oreover, there is strong evidence that the House\nunderstood the bill to be limited to such programs. Representative Simon\nintroduced an amendment that would have required ACDA to report to the\nNational Security Council (NSC) and Congress on the transfer of any nuclear\n\n2See H. Conf. Rept. No. 94-660, 94th C ong.. 1st sess. (1975), at 26; 121 Cong. Rec. 21853\n(1975).\n\'\xe2\x80\x99H. Rept. No. 94-281, 94th C o n g ., 1st sess. (1975), at 3.\n4M ., at 5.\n5l d . , at 6.\nbld ., at 11.\n7121 Cong. Rec. 21848 (1975).\n\n56\n\n\x0cmaterial to a foreign country.8 Its purpose, he stated, was to assure that ACDA\ninformed the NSC and Congress of the impact of such transfers on nuclear\nproliferation.9 A point o f order was then raised that the amendment covered\nnuclear material transferred for peaceful purposes and was thus not germane to\nthe bill. Representative Jordan, in the chair, ruled that the amendment was not\ngermane to \xc2\xa7 36, \xe2\x80\x9c which merely requires the furnishing o f information\nregarding defense system s.\xe2\x80\x9d The ruling was not challenged.\nFrom the committee report and the history of the Simon amendment, it is\nthus evident that the House intended \xc2\xa7 36 to apply only to programs with a\nmilitary purpose. The history of the Senate version of the bill is not to the\ncontrary. Senators Humphrey and Stennis, who prepared that version, explained\nthat the \xe2\x80\x9c weapons system or technology\xe2\x80\x9d provision was intended to give\nACDA discretion to study less important weapons program s.10 Nowhere in the\nlegislative history, in either House, is there support for the conclusion that\n\xc2\xa7 36(a)(3) includes all technology which may affect arms control.\nWe conclude that \xc2\xa7 36(a)(3) o f the Arms Control and Disarmament Agency\nAct does not give the Director of ACDA authority to require reports on the\nDepartment of Energy\xe2\x80\x99s nonmilitary technology programs which may affect\narms control policy or negotiations."\nLarry A. H\n\nammond\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9cThe am endm ent provided:\nNo agreem ent betw een the U nited States and any foreign country providing for the sale or\nother transfer to such country o f any nuclear m aterial may be entered into, and no license\nfor the sale or other transfer to any foreign country of any nuclear m aterial may be issued\nunless the Director has subm itted a report analyzing the impact o f such sale or other\ntransfer on arm s control and disarm am ent policies and negotiations to the National\nSecurity Council and the C ongress. 121 Cong. Rec. 21853 (1975).\n9121 Cong. Rec. 21854.\nI0121 Cong. Rec. 28687-88 (1975).\n" W e note that under \xc2\xa7 35 o f the Arm s Control and D isarm am ent A gency A ct, 22 U .S .C . \xc2\xa7 2575,\nand Executive O rder No. 11044 , 3 CFR 627 \xc2\xa7 2 (1959-1963 Com pilation), the President may\nrequire the Departm ent o f Energy to keep ACDA informed \xe2\x80\x9c on all significant aspects o f the United\nStates arm s control and disarm am ent policy and related m atters, including current and prospective\npolicies, plans, and p ro g ram s."\n\n57\n\n\x0c'


b'Expiration of Authority of Recess Appointees\nTwo members of the National Labor Relations Board who received recess appointments between the\nfirst and second sessions of the 107th Congress may not continue to serve on the Board after the\nSenate adjourned the second session sine die.\n\nNovember 22, 2002\n\nMEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT\nYou have asked whether two members of the National Labor Relations Board\n(\xe2\x80\x9cBoard\xe2\x80\x9d) who received recess appointments between the first and second sessions\nof the 107th Congress may continue to serve on the Board after the Senate\nadjourned the second session sine die. We believe that these members may not\ncontinue to serve after that adjournment.\nThe Constitution provides that \xe2\x80\x9c[t]he President shall have Power to fill up all\nVacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 2,\ncl. 3. The commissions of the recess appointees in question thus expired when the\nSenate adjourned the second session of the 107th Congress sine die. At that point,\nthe recess appointees no longer were members of the Board and had no authority\nto exercise any power of Board members. See Memorandum for Cindy Daub,\nChairman, Copyright Royalty Tribunal, from Walter Dellinger, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Tenure of Recess Appointees on the\nCopyright Royalty Tribunal at 8 (Nov. 24, 1993) (\xe2\x80\x9c1993 Opinion\xe2\x80\x9d).\nThe statute for the Board does not provide that members may hold over after\ntheir terms of office. See 29 U.S.C. \xc2\xa7 153 (2000). While \xe2\x80\x9cit is, at the least, a grave\nand doubtful proposition that a recess appointee/holdover could continue to serve\nin an important office (possibly as a principal officer of the United States) without\na presidential commission\xe2\x80\x9d even if Congress authorized the service, 1993 Opinion\nat 8, we need not reach that question here. In any event, the members may not\nserve past the Senate\xe2\x80\x99s adjournment sine die.\nThe Senate\xe2\x80\x99s resolution on adjournment, S. Con. Res. 160, provided that, \xe2\x80\x9cthe\nHouse of Representatives concurring,\xe2\x80\x9d the Senate \xe2\x80\x9cstand[s] adjourned sine die.\xe2\x80\x9d\nBy its terms, therefore, S. Con. Res. 160 did not become effective until the House\nconcurred. Indeed, under a unanimous consent resolution, see 148 Cong. Rec.\n23,429-30 (Nov. 20, 2002), the Senate was to return today, November 22, at 2:00\np.m., if the House had not acted on the resolution of adjournment by then. We\nunderstand, however, that the House did pass S. Con. Res. 160 today, and the\nSenate thus was in recess sine die as soon as the House acted. That time marks the\nend of the recess appointments at issue here.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n216\n\n227-329 VOL_26_PROOF.pdf 226\n\n10/22/12 11:13 AM\n\n\x0c'


b'Authority for Military Police to Issue Traffic Citations to\nMotorists on Bolling Air Force Base\nM ilitary p o lice h av e th e authority to issue citations, enforceable in federal court, to m otorists who\nviolate traffic law s on B olling A ir Force B ase.\nC ongress has given the G eneral Services A dm inistration lim ited authority over m ilitary installations\nfor th e n arro w p u rpose o f issuing and enforcing the regulations related to m otor vehicle violations.\n\nJune 5, 2000\nM\n\nem orandum\n\nO p in io n\n\nfo r the\n\nD epartm ent\n\nD eputy G\n\nof\n\neneral\n\nC o u n sel\n\nD efen se\n\nThis memorandum responds to a request from the Air Force Judge Advocate\nGeneral\xe2\x80\x99s Office ( \xe2\x80\x9c Air Force JAG\xe2\x80\x9d ) and the United States Attorney\xe2\x80\x99s Office for\nthe District of Columbia ( \xe2\x80\x9c U.S. Attorney\xe2\x80\x99s Office\xe2\x80\x9d ) concerning the authority of\nmilitary police to issue citations, enforceable in federal court, to motorists who\nviolate traffic laws on Bolling Air Force Base in the District of Columbia (\xe2\x80\x9c Dis\xc2\xad\ntrict\xe2\x80\x9d or \xe2\x80\x9c D .C.\xe2\x80\x9d ).1 We conclude that the military police may properly issue such\ncitations pursuant to a delegation from the General Services Administration\n( \xe2\x80\x9c GSA\xe2\x80\x9d ) o f the authority GSA possesses under 40 U.S.C. \xc2\xa7\xc2\xa7318\xe2\x80\x94318d to issue\nregulations governing GSA-controlled property and to enforce these regulations\nin federal courts, as provided for by Congress when it amended 40 U.S.C. \xc2\xa7318c\nin 1996.\nThe Air Force JAG\xe2\x80\x99s Office has expressed concern that this delegation proce\xc2\xad\ndure implies that GSA has charge and control over military bases. See Memo\xc2\xad\nrandum for HQ USAF/JAG Attn: Colonel Stucky, from 11WG/JA, William T.\nBurke, Captain, USAF, Assistant Staff Judge Advocate, Re: 40 U.S.C. \xc2\xa7 3 1 8 (Aug.\n14, 1996) ( \xe2\x80\x9c Stucky Memorandum\xe2\x80\x9d ). Based on our review of the text of the rel\xc2\xad\nevant statutory provisions, the statutory scheme, and the legislative history, we\nconclude that, in amending 40 U.S.C. \xc2\xa7 318c in 1996, Congress did not alter long\xc2\xad\nstanding statutory provisions and place military bases under GSA\xe2\x80\x99s charge and\ncontrol. Rather, it has given GSA limited authority over military installations for\nthe narrow purpose o f issuing and enforcing the regulations related to motor\nvehicle violations covered by \xc2\xa7318c(b)(l).\n\xe2\x96\xa0The A ir Force initially sought review of ihis m atter by the U.S Attorney\xe2\x80\x99s Office See Letter for Rhonda C.\nFields, Chief, Economic Crim es Section, Criminal Division, U.S. Attorney\xe2\x80\x99s Office, from Robert S Schwartz,\nColonel, USAF, Staff Judge Advocate (Sept 9, 1996). The U.S. A ttorney\xe2\x80\x99s Office determined that the legal questions\npresented should be forwarded to the Office of Legal Counsel for review and decision See Letter for Robert S.\nSchwartz, Colonel, USAF, Staff Judge Advocate, from Rhonda C. Fields, Chief, Economic C nm es Section, Criminal\nDivision, U.S. A ttorney\xe2\x80\x99s O ffice (Sept 17, 1996) ( \xe2\x80\x9c Fields Letter\xe2\x80\x9d ) On behalf o f your office, you have also asked\nus to respond to this request.\n\n72\n\n\x0cAuthority fo r Military Police to Issue Traffic Citations to Motorists on Bolling A ir Force Base\n\nI\nFor approximately one year in the early 1970s, the U.S. Attorney\xe2\x80\x99s Office pros\xc2\xad\necuted all traffic violations occurring at military installations within D.C. before\nUnited States Magistrates in federal district court. See Letter for Martin R. Hoff\xc2\xad\nman, General Counsel, Department of Defense, from Earl J. Silbert, United States\nAttorney at 1 (May 31, 1974) (\xe2\x80\x9c Silbert Letter\xe2\x80\x9d ). These prosecutions relied on\nthe Assimilative Crimes Act, 18 U.S.C. \xc2\xa7 13 (Supp. IV 1998) (\xe2\x80\x9c ACA\xe2\x80\x9d ), which\nadopts for each federal enclave the criminal law of the state within which the\nenclave is located. Were the ACA applicable in the District of Columbia, viola\xc2\xad\ntions of local D.C. law on federal enclaves in the District would become federal\ncrimes that could be prosecuted in federal court. After closer review of the\napplicable law, however, the U.S. Attorney concluded in 1974 that the ACA did\nnot permit such an incorporation of local law for federal enclaves in the District.\nSee Silbert Letter at 1. According to the U.S. Attorney, without operation of the\nACA, a federal magistrate had no jurisdiction over traffic violations. Id. The U.S.\nAttorney also concluded that D.C. Superior Court would offer an alternate forum\nfor such prosecutions or that federal legislation could be enacted specifically to\ngovern military installations. Id. at 2.\nIn a 1984 opinion concerning the investigative jurisdiction of the Federal Bureau\nof Investigation in the District of Columbia, we addressed whether federal enclave\njurisdiction extended to federal buildings and installations in the District. See\nMemorandum for Stephen S. Trott, Assistant Attorney General, Criminal Division,\nfrom Theodore B. Olson, Assistant Attorney General, Office o f Legal Counsel\nRe: FBI Investigative Jurisdiction in Washington, D.C. at 1 (Feb. 7, 1984) ( \xe2\x80\x9c Olson\nMemo\xe2\x80\x9d ). The U.S. Attorney\xe2\x80\x99s Office \xe2\x80\x94 consistent with the Silbert Letter \xe2\x80\x94 did\nnot argue that the ACA applied to federal sites in the District. The issue was\nwhether title 18 offenses applicable in the \xe2\x80\x9c \xe2\x80\x98special maritime and territorial juris\xc2\xad\ndiction of the United States\xe2\x80\x99 \xe2\x80\x99\xe2\x80\x99 applied in the District. See id. at 8 n.7 (quoting\n18 U.S.C. \xc2\xa77). In concluding that 18 U.S.C. \xc2\xa77 did not confer jurisdiction over\nfederal crimes committed on federal sites in the District, we observed that there\nwere two reasons why neither 18 U.S.C. \xc2\xa77 (the federal enclave statute) nor 18\nU.S.C. \xc2\xa713 (the ACA)\xe2\x80\x94 \xe2\x80\x9c related\xe2\x80\x9d provisions, Olson Memo at 7 \xe2\x80\x94 applied in\nthe District. First, the ACA, on its face, incorporates state offenses, not acts\n\xe2\x80\x98 \xe2\x80\x9c made penal by a law of Congress,\xe2\x80\x99 \xe2\x80\x9d such as the D.C. Code. See id. at 8\n(quoting 1984 version of 18 U.S.C. \xc2\xa7 13). Second, the rationale for both the federal\nenclave jurisdiction provision and the ACA \xe2\x80\x9c is to fill the jurisdictional gap created\nwhen the federal government acquires, and a State cedes, land.\xe2\x80\x9d Id. In the case\nof the District of Columbia, because the D.C. Code functions as the equivalent\nof state law, no such gap exists. Id. Thus, based on an examination of the legisla\xc2\xad\ntive history, case law, and the structure and legislative history of the criminal\ncode of which both the ACA and the federal enclave jurisdiction statute were\n73\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\npart, we concluded that Congress intended to exclude the District of Columbia\nfrom the scope of federal enclave jurisdiction. Id. at 4-10. Consequently, the ACA\ncould not support federal court prosecution of violations of the D.C. Code on\nfederal enclaves in the District of Columbia. Id. at 8. A footnote in that opinion\nnoted:\nWe are informed that the military authorities in the District of\nColumbia intend to employ federal magistrates to preside over\nprosecutions of civilians who commit offenses on military reserva\xc2\xad\ntions within the District. To the extent these prosecutions would\nbe based on federal enclave jurisdiction . . . rather than . . . fed\xc2\xad\neral criminal jurisdiction . . . or territorial jurisdiction . . . our\nconclusion indicates that such prosecutions would be unauthorized.\nId. at 13 n . l l (citations omitted).\n\nAccording to conversations with the GSA General Counsel\xe2\x80\x99s Office in\nDecember 1998, GSA began, in the 1980s, receiving requests from military\ncomponents for delegation of authority to issue and enforce traffic regulations\nfor military installations. See Telephone Interview with Scarlett D. Grose, Assist\xc2\xad\nant General Counsel, Real Property Division, GSA (Dec. 8, 1998) (\xe2\x80\x9c Grose Inter\xc2\xad\nview\xe2\x80\x9d ); Telephone Interview with Harmon Eggers, Acting Associate General\nCounsel, Real Property Division, GSA (Dec. 3, 1998). In 1981 GSA delegated\nauthority to the Department of Defense (\xe2\x80\x9c DoD\xe2\x80\x9d ) pursuant to which DoD issued\nDoD Directive No. 5525.4, entitled Enforcement o f State Traffic Laws on DoD\nInstallations (\xe2\x80\x9c DoD Directive\xe2\x80\x9d ). S ee DoD Directive No. 5525.4 (Nov. 2, 1981),\nreprinted in 32 C.F.R. pt. 634, app. C (1997). That directive was issued pursuant\nto policies \xe2\x80\x9c for the enforcement, on DoD military installations, of those state\nvehicular and pedestrian traffic laws that cannot be assimilated\xe2\x80\x9d under the ACA.\nSee 32 C.F.R. \xc2\xa7210.1. The directive mandates that \xe2\x80\x9c [a]ll persons on a military\ninstallation shall comply with the vehicular and pedestrian traffic laws of the state\nin which the installation is located,\xe2\x80\x9d 32 C.F.R. pt. 634, app. C HC(2); delegates\nto \xe2\x80\x9c installation commanders of all DoD installations in the United States and over\nwhich the United States has exclusive or concurrent legislative jurisdiction . . .\nthe authority to establish additional vehicular and pedestrian traffic rules and regu\xc2\xad\nlations,\xe2\x80\x9d id. UC(3); and establishes penalties set forth in 40 U.S.C. \xc2\xa7318c for\nsuch violations, 32 C.F.R. pt. 634, app. C HC(4).2 The delegation from the GSA\nstates that the GSA \xe2\x80\x9c authorizes the Secretary of Defense to assist in controlling\nvehicular and pedestrian traffic on military installations in the United States\xe2\x80\x9d\n240 U S C \xc2\xa7318c(a) provides that \xe2\x80\x9c whoever violates any rule or regulation promulgated\n318a .\nshall be fined not more than $50 or imprisoned not more than thirty days, or both\nauthorizes the GSA to \xe2\x80\x9c to make all needful rules and regulations for the government of the\ncharge and control, and to annex to such rules and regulations such reasonable penalties, within\nin section 318c o f this title, as will ensure their enforcem ent.\xe2\x80\x9d\n\n74\n\npursuant to section\n\xe2\x80\x9d 40 U .S C . \xc2\xa7318a\nproperty under tits]\nthe limits prescribed\n\n\x0cAuthority fo r Military Police to Issue Traffic Citations to Motorists on Bolling A ir Force Base\n\npursuant to authority vested in the GSA by the Federal Property and Administra\xc2\xad\ntive Services Act of 1949 (\xe2\x80\x9c FPASA\xe2\x80\x9d ) and the Act of June 1, 1948. Id. (Enclosure\nNo. 1). Neither the DoD Directive nor the delegation from the GSA explains why\nGSA delegation is either appropriate or necessary in order for the DoD to issue\nsuch regulations.\nIn 1996, the U.S. Attorney\xe2\x80\x99s Office called our 1984 opinion to the attention\nof the Air Force and informed the Air Force that it would no longer prosecute\ncertain violations without a determination by our Office that federal jurisdiction\nover those violations was proper. See Fields Letter.\n\nn\nThe GSA has general authority under 40 U.S.C. \xc2\xa7\xc2\xa7 318\xe2\x80\x943 18d to issue and\nenforce regulations for federal property and thereby has general responsibility for\nthe protection and policing of that property. This includes the authority \xe2\x80\x9c to make\nall needful rules and regulations for the government of the property under [its]\ncharge and control.\xe2\x80\x9d See 40 U.S.C. \xc2\xa7318a. Under this authority, the GSA has\nissued regulations governing such matters as vehicular and pedestrian traffic, drug\nand alcohol use, operation of gambling devices, and collection of private debts\non GSA-controlled property. See 41 C.F.R. \xc2\xa7\xc2\xa7 101-20.300 to 101-20.315 (1997).\nViolations of these regulations are subject to fines of not more than $50 or impris\xc2\xad\nonment for not more than thirty days, or both. See 40 U.S.C. \xc2\xa7318c; 41 C.F.R.\n\xc2\xa7101-20.315.\nUnder the same statutory scheme, GSA is authorized to \xe2\x80\x9c appoint uniformed\nguards [of the GSA] as special policemen . . . for duty in connection with the\npolicing of all buildings and areas owned and occupied by the United States and\nunder the charge and control of the Administrator.\xe2\x80\x9d 40 U.S.C. \xc2\xa7 318(a). The duties\nof these officers include enforcing regulations promulgated under \xc2\xa7 318a, including\ntraffic regulations where applicable. Section 318 continues:\nSpecial policemen appointed under this section shall have the same\npowers as sheriffs and constables upon property referred to in sub\xc2\xad\nsection (a) . . . to enforce the laws enacted for the protection of\npersons and property, and to prevent breaches of the peace, to sup\xc2\xad\npress affrays or unlawful assemblies, and to enforce any rules and\nregulations promulgated by the [GSA] for the property under [its]\njurisdiction; except that the jurisdiction and policing powers of such\nspecial policemen shall not extend to the service of civil process.3\n3 The powers held by sheriffs and constables under the common law include \xe2\x80\x9c the power to prevent and detect\ncrime, to arrest criminals, and to protect life and properly \xe2\x80\x9d H olland v. Commonwealth, 502 S E.2d 145, 148 (Va.\nCt App. 1998). One state court has concluded that\nContinued\n\n75\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nId. \xc2\xa7 318(b). According to the GSA General Counsel\xe2\x80\x99s office, violations of regula\xc2\xad\n\ntions under this provision rarely give rise to prosecutions \xe2\x80\x94 usually, offenders are\nsimply escorted off the property. See Grose Interview at 2. When they are pros\xc2\xad\necuted, violators are tried before a federal magistrate. Id. The special police offi\xc2\xad\ncer\xe2\x80\x99s authority extends only to the boundary of the federal property, and officers\nare not currently permitted to exercise any authority on the surrounding property.\nThis statutory authority of GSA, however, does not encompass military installa\xc2\xad\ntions. The GSA\xe2\x80\x99s policing and protection power extends only to \xe2\x80\x9c the government\nof the property under [its] charge and control.\xe2\x80\x9d 40 U.S.C. \xc2\xa7318a. While this\nlimitation is not further defined in that statute, 40 U.S.C. \xc2\xa7285 (1994) defines\n\xe2\x80\x9c Buildings under control o f Administrator of General Services\xe2\x80\x9d as follows:\nAll courthouses, customhouses, appraiser\xe2\x80\x99s stores, barge offices,\nand other public buildings outside of the District of Columbia and\noutside o f m ilitary reservations 4 which have been purchased or\nerected, or are in course of construction, or which may be erected\nor purchased out o f any appropriation under the control o f the\nAdministrator o f General Services, together with the site or sites\nthereof, are expressly declared to be under the exclusive jurisdiction\nand control and in the custody of the Administrator of General\nServices . . . .\nId. (emphasis added).5 Both the GSA and the representatives of the Air Force\n\nagree that the military installation is not within GSA\xe2\x80\x99s jurisdiction for purposes\nthe common law power o f the sheriff to m ake arrests without warrant for felonies and for breaches of\nthe peace committed in his presence . . [is] so widely known and so universally recognized that it is\nhardly necessary to cite authority for the proposition . . . [Thus], [u]nless the sheriffs common law power\nto make warrantless arrests for breaches o f the peace committed in his presence has been abrogated, it\nis clear that a sheriff (and his deputies) m ay make arrests for motor vehicle violations which amount to\nbreaches o f the peace committed in [his] presence\nCommonwealth v Leet, 641 A .2d 299, 303 (Pa. 1994) (citation omitted); see also Prosser v. Parsons, 141 E 2d\n342, 345 (S.C 1965) (common law power of sheriff and constable to arrest without warrant felons or persons reason\xc2\xad\nably suspected o f having committed a felony and those who had committed a misdemeanor in his presence which\namounted to a breach o f the peace \xe2\x80\x9c is not applicable to any violation of the criminal laws of this State committed\nwithin the view o f such an o ffic e r\xe2\x80\x9d ) (citing 5 Am. Jur. (2d) Arrest, Sec. 24, el seq.)\\ Commonwealth v Taylor,\n677 A.2d 846 (Pa. Super. Ct 1996) (constables possess power to make warrantless arrests for felony, violations\nof drug laws).\n4 Although there is no definition in title 40 for \xe2\x80\x9c military reservation,\xe2\x80\x9d \xe2\x80\x9c reservation\xe2\x80\x9d is defined in title 16 (which\nconcerns conservation), for purposes o f Utle 16, chapter 12, as follows:\n\xe2\x80\x9c [R]eservations\xe2\x80\x9d means national forests, tribal lands embraced within Indian reservations, military reserva\xc2\xad\ntions, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or\nwithheld from private appropriation and disposal under the public land laws; also lands and interests in\nlands acquired and held for any public purposes; but shall not include national monuments or national\nparks.\n16 U S C \xc2\xa7796(2) (1988); see also Black\xe2\x80\x99s Law Dictionary 1307 (6th ed. 1990) ( \xe2\x80\x9c A reservation is a tract of land,\nmore or less considerable in extent, which is by public authonty withdrawn from sale or settlement, and appropriated\nto specific public uses; such as parks, military posts, Indian lands, etc \xe2\x80\x9d )\n5This provision is based on a similar provision in the Sundry Civil Appropriation Act of July 1, 1898, placing\nthe control o f these buildings in the Department of Treasury. As the debate on this provision indicates, the first\nversion o f this provision had neither the exceptions for \xe2\x80\x9c the District of Columbia\xe2\x80\x9d nor \xe2\x80\x9c military reservations.\xe2\x80\x9d\n\n76\n\n\x0cAuthority f o r Military Police to Issue Traffic Citations to Motorists on Bolling A ir Force Base\n\nof 40 U.S.C. \xc2\xa7\xc2\xa7 318\xe2\x80\x94318d. On its face, then, the GSA is not an obvious source\nof authority to police military installations in the District of Columbia.\nIn internal memoranda responding to questions raised by the U.S. Attorney\xe2\x80\x99s\nOffice about authority for federal prosecution of motor vehicle offenses on mili\xc2\xad\ntary installations in the District of Columbia, the Air Force suggests that GSA\xe2\x80\x99s\nstatutory authority to extend its rules to property under the control of other depart\xc2\xad\nments or agencies of the United States may be applicable. See Memo for Record,\nfrom William T. Burke, Captain, USAF, Assistant Staff Judge Advocate, Re: 40\nU.S.C. \xc2\xa7 3 1 8 \xe2\x80\x94 Enforcement o f Local Traffic Laws on Bolling AFB (Aug. 15,\n1996) (\xe2\x80\x9c Burke Memo\xe2\x80\x9d ). According to the Burke Memo, the predecessor statute\nto 40 U.S.C. \xc2\xa7318, enacted in 1948, \xe2\x80\x9c authorized the Administrator of Federal\nWorks to make all needful rules and regulations for the property under the charge\nand control of the Federal Works Agency [(\xe2\x80\x9c FW A\xe2\x80\x9d ) the predecessor to the GSA],\nFurthermore, section 3 of that statute authorized the Administrator to extend such\nrules to property of the United States under the control of other departments or\nagencies of the United States.\xe2\x80\x9d Burke Memo at ^]2. As currently codified, this\nsection provides as follows:\nUpon the application of the head of any department or agency of\nthe United States having property of the United States under its\nadministration and control, the Administrator of General Services\nor officials of the Administration . . . are authorized to detail any\nsuch special policemen for the protection of such property and if\nhe deems it desirable, to extend to such property the applicability\nof any such regulations and to enforce the same as set forth herein\n\n40 U.S.C. \xc2\xa7 3 1 8b. This provision empowers GSA to provide policing of military\ninstallations outside GSA\xe2\x80\x99s charge and control only if GSA details its own officers\nto provide the policing services. In this case, however, it is not the GSA special\npolice who are policing the military installations, but rather the military\xe2\x80\x99s own\npolice. Section 318b, then, does not provide a complete basis for GSA to delegate\nto DoD policing authority for property under DoD\xe2\x80\x99s (rather than GSA\xe2\x80\x99s) charge\nand control.\nSee 31 Cong. Rec 3506 (1898). An amendment was proffered exempting the District of Columbia Id. Upon the\nreading of the bill. Senator Hawley pointed out the problem that the \xe2\x80\x9c provision puts the entire control of [a post\noffice on a military reservation] in the hands of the Treasury Department. The supreme control of it has to be\nin the commanding officer really \xe2\x80\x94 the final control.\xe2\x80\x9d Id The following bnef colloquy ensued\n[Sen ] Allison The Senator will see that the provision as it came from the House placed all public buildings\nunder the control o f the Secretary o f the Treasury We have inserted the words \xe2\x80\x9c outside the District of\nC olum bia\xe2\x80\x9d How would it do to say \xe2\x80\x9c outside o f the District o f Columbia and military reservations9\xe2\x80\x9d\n[Sen ] H aw ley I think there would be less likely to be any controversy in that case.\nId The amendment was then adopted. See 31 Cong Rec 5604 (1898) (Statement of Conference Report)\n\n77\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nThe Burke Memo suggests a mechanism for filling the gap. It notes that \xe2\x80\x9c Sec\xc2\xad\ntion 103(d) [of FPASA, the 1949 Act that created the GSA] authorized the newly\ncreated Administrator of the GSA \xe2\x80\x98to delegate and to authorize successive\nredelegation of any authority transferred to or vested in him by this Act to . . .\nthe head of any other Federal Agency.\xe2\x80\x99 \xe2\x80\x9d Burke Memo at ^[3. GSA could delegate\nboth the authority to provide protection and the authority to appoint special police\nto DoD for property under DoD\xe2\x80\x99s charge and control.6 Id. at ^4.\nGSA has relied on a similar delegation procedure in other contexts where similar\nauthority concerns have been raised, such as providing security for the National\nSecurity Agency ( \xe2\x80\x9c NSA\xe2\x80\x9d ). According to the GSA, it \xe2\x80\x9c does not have charge and\ncontrol over property on military reservations,\xe2\x80\x9d which includes property of the\nNSA. See Letter for George Fruchterman, Legislation and Regulatory Counsel\nDivision, Office of General Counsel, NSA, from Scarlett D. Grose, Assistant Gen\xc2\xad\neral Counsel, Real Property Division, GSA (Oct. 9, 1997) ( \xe2\x80\x9c Grose Letter\xe2\x80\x9d ).\nNevertheless, the GSA concluded that it could delegate its statutory authority\n\xe2\x80\x9c upon application by the head of the agency . . . to detail GSA special police\nto NSA for the protection of property under NSA\xe2\x80\x99s charge and control\xe2\x80\x9d through\n\xe2\x80\x9c [s]ection 205(d) of the [FPASA]\xe2\x80\x9d which \xe2\x80\x9c authorizes the Administrator to dele\xc2\xad\ngate any authority transferred or vested in him under [FPASA] to the head of\nany other Federal agency.\xe2\x80\x9d Id. at 1. By a delegation of its authority to protect\nproperty under NSA\xe2\x80\x99s charge and control along with its authority to appoint spe\xc2\xad\ncial police under 40 U.S.C. \xc2\xa7318, GSA could confer on NSA the authority \xe2\x80\x9c to\nappoint special police for the protection of property under [NSA\xe2\x80\x99s] charge and\ncontrol.\xe2\x80\x9d Grose Letter at 2.\nAlthough \xc2\xa7205 of FPASA, 40 U.S.C. \xc2\xa7486 (1994), may have offered authority\nfor delegation by GSA to DoD prior to the 1996 amendment, now there is a\nstatutory provision directly providing for the delegation of authority in this specific\ncircumstance by GSA to DoD. As a result, reliance on \xc2\xa7 486 is no longer needed.\nIn 1996, Congress amended 40 U.S.C. \xc2\xa7318c by adding the following provision:\n(b)(1) Whoever violates any military traffic regulation shall be fined\nan amount not to exceed the amount of the maximum fine for a\nlike or similar offense under the criminal or civil law of the State,\nterritory, possession, or district where the military installation in\nwhich the violation occurred is located, or imprisoned for not more\nthan 30 days, or both.\n6 Section 103 o f the FPASA transfers all functions of the FWA to the GSA Section 205(d) of the FPASA, now\ncodified at 40 U S.C \xc2\xa7 486(d), authorizes the n ew agency\xe2\x80\x99s Administrator to delegate and redelegate \xe2\x80\x9c any authority\ntransferred to o r vested in him by [FPASA]\xe2\x80\x9d to any official in the GSA or the head of any other Federal agency.\nSection 205(e) o f FPASA, now \xc2\xa7 486(e), grants the GSA Administrator similar authonty to delegate functions to\nheads of other Federal agencies It appears to us that \xc2\xa7 486(e) is the more appropnate source of authonty for the\ndelegation at issue here\n\n78\n\n\x0cAuthority fo r Military Police to Issue Traffic Citations to Motorists on Bolling Air Force Base\n\n(2) For purposes of this subsection, the term \xe2\x80\x9c military traffic regu\xc2\xad\nlation\xe2\x80\x9d means a rule or regulation for the control of vehicular or\npedestrian traffic on military installations that is promulgated by\nthe Secretary of Defense, or the designee of the Secretary, under\nthe authority delegated pursuant to section 318a of this title.\n40 U.S.C. \xc2\xa7318c(b).7 This amendment provides the DoD with independent statu\xc2\xad\ntory authority to issue rules for regulating traffic on base, the violations of which\nwould be federal offenses, so DoD need no longer rely on the delegation authori\xc2\xad\nties in \xc2\xa7 486, provided it obtains GSA authorization.\nOn its face, it is unclear from the statutory scheme of 40 U.S.C. \xc2\xa7\xc2\xa7318\xe2\x80\x94318d\nwhy Congress would direct the DoD to turn to GSA for this authority. Nor does\nthe legislative history of this amendment aid in explaining why Congress utilized\nthis mechanism for authorizing DoD to issue these regulations. The provision was\nadded by an amendment contained in the National Defense Authorization Act for\nFiscal Year 1997, Pub. L. No. 104-201, \xc2\xa71067, 110 Stat. 2422, 2654 (1996).\nOn June 25, 1996, the text of the provision that was eventually enacted first\nappears, as a bill, S. 1745, 104th Cong. (1996), with no discussion accompanying\nits appearance. See 142 Cong. Rec. 15,198 (1996). The next day, Senator\nHutchison offered the provision as amendment No. 4319 to the defense authoriza\xc2\xad\ntion bill with the stated purpose, \xe2\x80\x9c To increase penalties for certain traffic offenses\non military installations\xe2\x80\x9d and reported that the amendment was cleared by the\nother side, and the amendment passed soon after. See 142 Cong. Rec. 15,386\n(1996). The title of the provision as introduced suggests that the purpose of the\namendment was to increase penalties, not to give DoD authority to issue and\nenforce regulations regarding traffic offenses. The Conference Report on H.R.\n3230, which replaced the competing House and Senate versions of the defense\nauthorization bill, on the other hand, states only that the Senate version \xe2\x80\x98 \xe2\x80\x98contained\na provision (sec. 1079) that would allow the Secretary of Defense or his designee\nto promulgate rules or regulations concerning traffic offenses committed on mili\xc2\xad\ntary installations and apply the surrounding community\xe2\x80\x99s authorized punishments\nto those offenses in specified circumstances. . . . The House recedes on this.\xe2\x80\x9d\nH.R. Conf. Rep. No. 104-724, at 793 (1996), reprinted in 1996 U.S.C.C.A.N.\n2948, 3300 (emphasis added). No mention is made in the conference report about\nthe fact that the provision, according to its original title, purported only to increase\npenalties; rather, the provision is now entitled \xe2\x80\x9c Assimilative crimes authority for\ntraffic offenses on military installations (sec. 1067),\xe2\x80\x9d id., and the report suggests\n7The Air Force JA G \xe2\x80\x99s Office and the U S Attorney\xe2\x80\x99s Office were concerned that the reference to \xe2\x80\x9c state vehicular\nand pedestrian traffic laws\xe2\x80\x9d in the DoD Directive would not include assimilation of laws in the District. See Memo\xc2\xad\nrandum for HQ USAF/JG, Attn. Colonel Stucky, from 1IW G/JA, Robert S. Schwartz, Colonel, USAF, Staff Judge\nAdvocate, Re: Applicability o f 40 i f S C. \xc2\xa7318 to the District o f Columbia at ^ 4 (Sept. 26, 1996). This concern\nis presumably mooted by the language of 40 U S C \xc2\xa7318c(b)(l) which refers expressly to \xe2\x80\x9c district\xe2\x80\x9d laws as well\nas state and other local laws\n\n79\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nit was intended to \xe2\x80\x9c allow\xe2\x80\x9d the Secretary to issue these rules and regulations.8\nThe National Defense Authorization Act for Fiscal Year 1997, of which this provi\xc2\xad\nsion was part, became law on September 23, 1996.\nAlthough the legislative history of this amendment sheds no light as to why\nCongress adopted this means of giving the military authority to issue regulations\ngoverning traffic violations on military bases, a transmittal to this Office from\nDoD\xe2\x80\x99s Office of General Counsel includes a two-page request from DoD to Con\xc2\xad\ngress in 1996 for a similar provision and an accompanying section-by-section anal\xc2\xad\nysis. This analysis suggests that the request for this amendment was prompted\nby federal court decisions, see, e.g., United States v. Golden, 825 F. Supp. 667\n(D.N.J. 1993), that the ACA does not permit the assimilation of non-criminal state\noffenses on federal installations. See Fax Transmission for Robert Delahunty, Spe\xc2\xad\ncial Counsel, Office o f Legal Counsel, from Nicole M. Doucette, Office of Gen\xc2\xad\neral Counsel, Department o f Defense, Re: Enforcement o f Traffic Violations on\nM ilitary Installations in D C (Apr. 17, 1997) (\xe2\x80\x9c Doucette Fax\xe2\x80\x9d ). The DoD version\nincluded in this request was modified before it was introduced in Congress; unlike\nthe version that was introduced, the DoD version references the ACA and\nincreases the fines for such violations to $1000. Nevertheless, the section-by-section analysis\xe2\x80\x99s explanation of the delegation procedure is consistent with the\napproach Congress adopted in the enacted law. It sets forth the procedure as fol\xc2\xad\nlows:\nWhere state law cannot be assimilated, persons may be prosecuted\nunder section 318c of title 40, United States Code. This section\nauthorizes prosecution for a violation of a regulation to control Fed\xc2\xad\neral property promulgated by the Administrator of the General\nServices Administration under section 318a of title 40. With respect\nto military installations, the Administrator has delegated the\nauthority to promulgate regulations to the Secretary of Defense,\nwho has in turn delegated the authority to the commanders of mili\xc2\xad\ntary installations. Under this authority, the military services have\nby joint regulation adopted state traffic laws. Installation com\xc2\xad\nmanders may issue additional regulations.\nSee Draft Legislative Proposal in Doucette Fax at 5. While this request does not\n\nprovide the legal rationale for turning to the GSA for delegation of authority over\ntraffic law on military bases, and does not examine whether GSA has or should\nbe given charge and control over the military installations, the analysis does sug\xc2\xad\n8 A lthough the 1996 amendment does not directly provide for an increase in penalties, it does permit both criminal\nor civil prosecution o f the offense based on the law o f the surrounding jurisdiction, thus potentially broadening\nthe scope and severity o f available penalties See 40 U S C \xc2\xa7 3 1 8c(b)(l) (violations \xe2\x80\x9c shall be fined an amount\nnot to exceed the amount o f the maximum fine for a like or sim ilar offense under the criminal or civil law of\nthe State, tem tory, possession, o r district where the military installation\xe2\x80\x9d is located)\n\n80\n\n\x0cAuthority fo r Military Police to Issue Traffic Citations to Motorists on Bolling A ir Force Base\n\ngest that Congress may have opted for the somewhat unwieldy procedure of\ndirecting the GSA to delegate to the Secretary of Defense the authority to issue\nthe regulations, who in turn redelegates this authority to the installation com\xc2\xad\nmanders, who are then responsible for enforcing these motor vehicle regulations\non the installations, based on the suggestion of the DoD.9 More importantly, how\xc2\xad\never, the amendment also establishes that violations of these regulations are federal\noffenses regardless of whether they may or not be otherwise assimilated under\nthe ACA.\nIt appears from some of the correspondence that has been forwarded to us,\nas well as conversations subsequent to the 1996 amendment, that the Air Force\nis concerned that adopting the procedures set forth in the 1996 amendment to\nthe GSA policing and protection authority provisions with regard to Bolling Air\nForce Base would imply that with that amendment Congress placed military\ninstallations under GSA\xe2\x80\x99s charge and control. See Telephone Interview with Major\nMark Strickland, Legal Counsel\xe2\x80\x99s Office, Bolling Air Force Base (Dec. 3, 1998);\nStucky Memorandum at ^ 3. We consider this to be an implausible reading of\nthe statutory scheme. It would require reading the 1996 amendment effectively\nto repeal the exception in \xc2\xa7 285 for military reservations. It is unlikely that Con\xc2\xad\ngress would seek to effect a wholesale repeal of \xc2\xa7 285, placing public buildings\nand surrounding sites on military reservations under GSA\xe2\x80\x99s charge and control,\nwith no discussion of the implications of such a change. Indeed, such a reading\nwould be contrary to general principles of statutory interpretation. See 1A Norman\nJ. Singer, Sutherland Statutory Construction \xc2\xa723.10 (5th ed. 1993) (\xe2\x80\x9c The\npresumption against implied repeals is founded upon the doctrinc that the legisla\xc2\xad\nture is presumed to envision the whole body of the law when it enacts new legisla\xc2\xad\ntion. Therefore, the drafters should expressly designate the offending provisions\nrather than leave the repeal to arise by implication from the later enactment\n. . . .\xe2\x80\x9d ). Because there is no evidence in the legislative history of any intent\nto repeal any part of \xc2\xa7285, we do not read the 1996 amendment to 40 U.S.C.\n\xc2\xa7 318 as an implied repeal of the exception in \xc2\xa7 285 pertaining to military reserva\xc2\xad\ntions: \xe2\x80\x9c [I]n the absence of some affirmative showing of an intention to repeal,\nthe only permissible justification for a repeal by implication is when the earlier\nand later statutes are irreconcilable or if the later act covers the whole subject\nof the earlier one and is clearly intended as a substitute.\xe2\x80\x9d Id. \xc2\xa723.09. Section\n318 of title 40, as amended in 1996, and \xc2\xa7285, although intuitively inconsistent,\nare reconcilable, obviating any need to find an implied repeal of \xc2\xa7 285. The 1996\namendment to \xc2\xa7318 may be read, consistent with \xc2\xa7285, as a limited grant of\nauthority to GSA over military installations for the narrow purpose of regulating\ntraffic on the installations. The 1996 amendment gives GSA no additional\nauthority over military property. It may be, however, that because the existing\n9 Perhaps Congress, in view o f the history o f delegations by GSA, selected the procedure that most closely matched\nthe practice, even if that procedure was unwieldy.\n\n81\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\ndelegation is based on the previous statutory scheme, a new delegation based on\nthe 1996 amendment to \xc2\xa7 318 is required.10\n\nin\nIn the 1996 amendment to 40 U.S.C. \xc2\xa7\xc2\xa7 318\xe2\x80\x94318d, Congress gave the Secretary\no f Defense the power to issue regulations to enforce local traffic law on bases\nand enforce such violations as federal offenses. The 1996 amendment mandates,\nhowever, that in order to issue and enforce these regulations, the Secretary of\nDefense must initially obtain an appropriate delegation of authority from the GSA.\nGSA is authorized by its governing statutes to issue regulations for federal prop\xc2\xad\nerty under its charge and control; appoint special police officers to enforce those\nregulations; and impose certain statutorily limited penalties for violations of these\nregulations which are rendered federal offenses. Although the legislative history\nof the 1996 amendment offers little insight into the underlying congressional\nintent, consistent with general principles of statutory interpretation and the statu\xc2\xad\ntory scheme, we conclude that in amending \xc2\xa7 3 18c in 1996, Congress did not\nintend to change the statutory definition of property under GSA charge and con\xc2\xad\ntrol. Rather, Congress granted GSA authority over military installations for the\nsole purpose of regulating traffic on the base and directed it to delegate this\nauthority to the Secretary of Defense. The traffic violations may then be pros\xc2\xad\necuted pursuant to the DoD\xe2\x80\x99s regulations. Adopting such a procedure does not\nplace military installations such as Bolling Air Force Base under GSA\xe2\x80\x99s authority\n10 Air Force personnel have also expressed concerns that any such traffic enforcement actions taken by the military\npolice against civilians may violate the Posse Comitatus Act (\xe2\x80\x9c PCA\xe2\x80\x9d ). We do not believe that these concerns are\nwarranted. The PCA provides as follows:\nW hoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Con\xc2\xad\ngress, willfully uses any part o f the Army o r the Air Force as a posse comitatus or otherwise to execute\nthe laws shall be fined under this title or imprisoned not more than tw o years, or both.\n18 U.S C \xc2\xa71385 (1994). The weight of authonty indicates that the detention and arrest of civilians by military\npolice for on-base violations o f civil law is not prohibited by the PCA. See United States v Banks, 539 F 2 d 14,\n16 (9th Cir. 1976) (affirming authonty of military police to detain and arrest civilian for heroin possession on base\nand turn over to civilian authonties, holding \xe2\x80\x9c [PCA] does not prohibit military personnel from acting upon onbase violations committed by civilians\xe2\x80\x99\xe2\x80\x99); United States v. Dillon, 983 F. Supp. 1037 (D. Kan. 1997) (upholding\nDUI conviction subsequent to arrest on military base); Eggleston v. D e p \xe2\x80\x99t o f Revenue, Motor Vehicle Div., 895\nP.2d 1169, 1170 (Col. Ct. App 1995) (PCA does not prohibit military personnel from acting upon cnminal violations\ncommitted by civilians on military base \xe2\x80\x9c because the power to maintain order, secunty, and discipline on a military\nfacility is necessary for military operations\xe2\x80\x9d ); Municipality o f Anchorage v King, 754 P.2d 283 (Alaska Ct App.\n1988) (holding no violation o f PCA where military police arrested civilian at entry to base for DUI and turned\nhim over to civilian authorities) Although never addressing the specific question of issuing traffic tickets and sum\xc2\xad\nmonses, we have in the past \xe2\x80\x9c conclude[d] that the Posse Comitatus Act does not restrict the use of military police\non a military reservation to maintain order by apprehending civilians who commit crimes on the reservation.\xe2\x80\x9d Law\nEnforcement at San Onofre N uclear Generation Plant, I O p O.L.C 204, 209 (1977) (citing prior OLC opinions),\nsee also Use o f M ilitary Personnel to maintain Order Among Cuban Parolees on Military Bases, 4B Op O L.C.\n643, 646 (1980) ( \xe2\x80\x9c In interpreting the applicability of the prohibition o f the Posse Comitatus Act to the use of\nmilitary personnel, the Department o f Justice and the Department o f Defense generally have been careful to distin\xc2\xad\nguish between the use o f such personnel on military bases, on the one hand, and off military bases on the other.\xe2\x80\x9d ).\nEven if such activities might otherwise be prohibited by the PCA, moreover, in the 1996 amendment, Congress\nexpressly authonzed the Secretary o f Defense to obtain authonty for enforcing traffic control on bases, thereby\narguably creating an exception to any posse comitatus problems.\n\n82\n\n\x0cAuthority fo r Military Police to Issue Traffic Citations to Motorists on Bolling A ir Force Base\n\nexcept for the narrow purpose contemplated by the statute of issuing motor vehicle\nregulations. In order to ensure that the current delegation is proper, we recommend\nthat the Secretary of Defense obtain a new delegation from GSA reflecting 40\nU.S.C. \xc2\xa7 318c, as amended, and issue an updated directive.\nWILLIAM MICHAEL TREANOR\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n83\n\n\x0c'