b'Ex Parte Communications During\nFCC Rulemaking\nEx parte com m u n icatio n s by W hite House officials to Federal C om m unications C om m ission\ncom m issioners that advocate positions on the FC C rulem aking proceeding to evaluate finan\xc2\xad\ncial interest and syndication rules would be perm issible.\nA ccording to FC C regulations, as interpreted by the FCC G eneral C ounsel, com m unications b y\nthe W hite H ouse m u st be disclosed in the FC C rulem aking record if they are o f substantial\nsignificance and clearly intended to affect the ultim ate decision.\nAlthough solicitation o f the view s o f W hite H ouse officials by FCC com m issioners would be\nperm issible and n eed not be included in the rulem aking record, any response by W hite\nH ouse officials to such a solicitation w ould be subject to the sam e disclosure requirem ents\nthat apply to u n so licited com m unications.\n\nJanuary 14, 1991\nMem\n\norandum\n\nCo u n s e l\n\nOp in io n\nto th e\n\nfo r th e\n\nDe p u t y\n\nPr e s i d e n t\n\nThis memorandum responds to your request that we answer certain ques\xc2\xad\ntions regarding ex parte communications between White House officials and\nCommissioners of the Federal Communications Commission (\xe2\x80\x9cFCC\xe2\x80\x9d) in con\xc2\xad\nnection with the FCC \xe2\x80\x99s ongoing rulemaking proceeding to evaluate its\nfinancial interest and syndication rules relating to television network in\xc2\xad\nvolvement in the programming marketplace. Specifically, you have asked\n(1) whether it is permissible for White House officials to contact FCC Com\xc2\xad\nmissioners to advocate a position on this rulemaking; (2) whether any such\ncommunications would be subject to FCC disclosure requirements; and (3)\nwhether it would be permissible for FCC Commissioners to solicit the views\nof White House officials and whether any such communications would be\nsubject to the FCC disclosure requirements.\nWe conclude that the communications by White House officials would be\npermissible and, according to FCC regulations, they must be disclosed in the\nFCC rulemaking record if they are of substantial significance and clearly\nintended to affect the ultimate decision. Solicitations of the views of White\n\n1\n\n\x0cHouse officials by FCC Commissioners would be permissible and need not\nbe included in the rulemaking record. Any response by White House offi\xc2\xad\ncials to such a solicitation, however, would be subject to the same disclosure\nrequirements that apply to unsolicited communications.\nI.\nWe believe it is clearly permissible, as a matter of general administrative\nlaw, for White House officials, including senior members from the Council\nof Economic Advisors and officials from the Office of the Vice President,\nOffice of Management and Budget, and Office o f White House Counsel, to\ncontact FCC Commissioners to advocate a position on this rulemaking. This\nconclusion is compelled by Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir.\n1981), the leading ex parte contacts case under the Administrative Procedure\nAct (\xe2\x80\x9cAPA\xe2\x80\x9d), 5 U.S.C. \xc2\xa7\xc2\xa7 551-559, 701-706.\nIn Sierra Club, an Environmental Protection Agency (\xe2\x80\x9cEPA\xe2\x80\x9d) rulemaking\nwas challenged as procedurally defective in a variety of ways, including that\nthe decisionmaking was influenced by an \xe2\x80\x9cundocketed meeting . . . attended\nby the President, White House staff, other high ranking members of the\nExecutive Branch, as well as EPA officials, and which concerned the issues\nand options presented by the rulemaking.\xe2\x80\x9d Id. at 404. In holding that the\nmeeting was permissible and need not have been \xe2\x80\x9cdocketed\xe2\x80\x9d (i.e., a sum\xc2\xad\nmary placed in EPA\xe2\x80\x99s rulemaking record),1 the D.C. Circuit Court of Appeals\nrecognize[d] the basic need of the President and his White\nHouse staff to monitor the consistency of executive agency\nregulations with Administration policy. He and his White\nHouse advisers surely must be briefed fully and frequently\nab o u t ru les in the m aking, and their con trib u tio n s to\npolicymaking considered. The executive power under our Con\xc2\xad\nstitution, after all, is not shared \xe2\x80\x94 it rests exclusively with\nthe President.\nId. at 405. The court not only concluded that \xe2\x80\x9c[t]he authority of the Presi\xc2\xad\n\ndent to control and supervise executive policymaking is derived from the\nConstitution,\xe2\x80\x9d id. at 406, but added that\nthe desirability of such control is demonstrable from the prac\xc2\xad\ntical realities of administrative rulemaking. Regulations such\n\n1 The Sierra Club holding on \xe2\x80\x9cdocketing\xe2\x80\x9d did not m odify the APA case law providing that purely\nfactual and \xe2\x80\x9cconduit\xe2\x80\x9d (i.e.. from interested parties outside the government) information provided in the\ncourse o f such com m unications should be included in agency rulemaking records. See Contacts Be\xc2\xad\ntween the Office o f M anagement and B udget and Executive Agencies Under Executive Order No. 12,291,\n5 Op. O.L.C. 107 (1981).\n\n2\n\n\x0cas those involved here demand a careful weighing of cost,\nenvironmental, and energy considerations. They also have\nbroad implications for national economic policy. Our form of\ngovernment simply could not function effectively or rationally\nif key executive policymakers were isolated from each other\nand from the Chief Executive. Single mission agencies do\nnot always have the answers to complex regulatory problems.\nAn over-worked administrator exposed on a 24-hour basis to a\ndedicated but zealous staff needs to know the arguments and\nideas of policymakers in other agencies as well as in the White\nHouse.\nId. (footnotes omitted).\n\nJust as the court found in Sierra Club that it was permissible under the\nAPA for the President and other White House officials to meet with EPA\nofficials in an effort to influence the results of an EPA rulemaking, we\nbelieve it is permissible for White House officials to contact FCC Commis\xc2\xad\nsioners in an effort to influence the results of an FCC rulemaking. The\nconstitutional and administrative rationales set forth in Sierra Club are fully\napplicable to the FCC rulemaking on financial interest and syndication rules.2\nSierra Club makes it clear that, in addition to the general requirements of\nthe APA, any more specific statutory requirements must be considered. Id.\nat 406-07. The only such requirements that we are aware of that might\napply in the present situation are those contained in the laws and regulations\ngoverning FCC proceedings. The FCC\xe2\x80\x99s notice of proposed rulemaking ex\xc2\xad\npressly states that the FCC has determined that ex parte communications are\npermissible in this rulemaking proceeding. See 55 Fed. Reg. 11,222, 11,223\n(1990) (\xe2\x80\x9cAfter June 13, 1990, the proceeding will become a non-restricted\nproceeding, in which ex parte presentations will be permissible, subject to\nthe disclosure requirements set forth in the Commission\xe2\x80\x99s rules.\xe2\x80\x9d) The FCC\xe2\x80\x99s\nex parte communication regulations, 47 C.F.R. Subpart H, apply by their\nterms to ex parte communications from any person outside the FCC, ex\xc2\xad\npressly including presentations from government officials. See 47 C.F.R. \xc2\xa7\n2Sierra Club is not distinguishable on the basis th at the FC C , un lik e the EPA , m ight be v ie w ed as an\n\xe2\x80\x9c in d e p e n d en t agency." Sierra Club is the leading con stru ctio n o f the APA o n ex parte c o n ta c ts d uring\nru lem ak in g , and the APA clearly applies equally to the FC C and the EPA. See 5 U .S.C. \xc2\xa7 551 (1). T h u s,\nthe Sierra Club rationale concerning \xe2\x80\x9cthe practical realities o f a d m in istrative ru lem aking,\xe2\x80\x9d 657 F.2d at\n4 0 6 , applies fully to all agency rulem aking, w hether done by a p u rely executive o r \xe2\x80\x9c ind ep en d en t" agency.\nIndeed, the only ex cep tio n to its holdings on W hite H ouse co n tacts that Sierra Club sp ec ifica lly id e n ti\xc2\xad\nfies is w here the co n tacts \xe2\x80\x9cdirectly co ncern the o utcom e o f ad ju d icatio n s or q u a si-ad ju d ica to ry p ro c e e d \xc2\xad\nin g s,\xe2\x80\x9d thus im plying that all ru lem ak in g is covered by the m ain holding Id. a t 407. M oreover, w h a t\xc2\xad\ne v e r the c o n stitu tio n ality o f restricting the rem oval o f the heads o f \xe2\x80\x9c in dependent ag en c ie s," there is no\nd o u b t that the P resid en t has the constitutional au th o rity to in fo rm (directly o r through h is staff) an\n"in d e p e n d en t ag en cy " o f the A d m in istratio n \'s p rogram , in an effort to c o o rdinate p o lic y w ithin the\nex ecu tiv e b ranch. See Morrison v. Olson. 487 U .S. 654 (1988). A ccordingly, the P resid e n t retains\na u th o rity to attem pt to influence rulem aking decisions by \xe2\x80\x9cin d ep en d en t a g en c ie s\xe2\x80\x9d in the w a y s e ndorsed\nin Sierra Club.\n\n3\n\n\x0c1.1206(a)(l)-(3) note 1 (\xe2\x80\x9c[P]resentations from members of Congress or their\nstaff or from other agencies or branches of the Federal Government or their\nstaff that are o f substantial significance and clearly intended to affect the\nultimate decision shall be treated as ex parte presentations . . .\nAccordingly,\nwe conclude that ex parte communications by White House officials in connec\xc2\xad\ntion with this rulemaking are permissible under the FCC ex parte regulations.\nAlthough ex parte communications to FCC Commissioners by White House\nofficials are thus legally permissible, we note the current White House policy\nguidance applicable to contacts with independent regulatory agencies like\nthe FCC. See Memorandum for White House Staff, from C. Boyden Gray,\nCounsel to the President, R e: Prohibited Contacts with Agencies. That\nguidance states:\nAs a general rule, no member of the staff should make an ex\np a rte contact with a regulatory agency in regard to any par\xc2\xad\nticular matter pending before that agency, regardless o f whether\nthe proceedings are deemed to be rulemaking or adjudicative,\nwhen such a contact may imply preferential treatment or the\nuse o f influence on the decision-making process.\n. . . White House staff members should avoid even the mere\nappearance of interest or influence \xe2\x80\x94 and the easiest way to\ndo so is to avoid discussing matters pending before the inde\xc2\xad\npendent regulatory agencies with interested parties and avoid\nmaking ex parte contacts with agency personnel. Should an\noccasion arise . . . where it appears necessary [for White House\nstaff] to discuss general policy matters with the staff of an\nindependent regulatory agency, to avoid any appearance of\nimpropriety, [the W hite House staff individual] should first\nconsult with the Office of the Counsel to the President to\ndetermine whether such contact would be appropriate under\nthe circumstances.\nId. at 1-2.\n\nII.\nYou have also asked whether, if ex parte communications to FCC Com\xc2\xad\nmissioners by White House officials are permissible, the communications\nmust be publically disclosed: i.e., included in the FCC\xe2\x80\x99s rulemaking record.\nAlthough Sierra Club makes it clear that such disclosure is not required as a\nm atter of general administrative law, see 657 F.2d at 404-08, the FCC regu\xc2\xad\nlations on ex parte com munications provide for disclosure o f certain\n\n4\n\n\x0ccommunications of that nature. We have consulted the FCC General Counsel\xe2\x80\x99s\nOffice to ascertain the FCC\xe2\x80\x99s interpretation of its regulations.3 The follow\xc2\xad\ning discussion is based on that interpretation.4\nAs noted above, the FCC\xe2\x80\x99s notice of proposed rulemaking states that \xe2\x80\x9cex\nparte presentations will be permissible\xe2\x80\x9d in this proceeding, \xe2\x80\x9csubject to the\ndisclosure requirements set forth in the Commission\xe2\x80\x99s rules.\xe2\x80\x9d 55 Fed. Reg.\nat 11,223. This statement is consistent with the FCC regulations, which\nprovide that all informal rulemaking proceedings, except proceedings on\nallotment of specific radio or television channels, are \xe2\x80\x9cnon-restricted pro\xc2\xad\nceedings,\xe2\x80\x9d see 47 C.F.R. \xc2\xa7 1.1206(b)(1), in which \xe2\x80\x9cex parte presentations are\npermissible . . . if [certain enumerated] disclosure requirements are met.\xe2\x80\x9d\n47 C.F.R. \xc2\xa7 1.1206(a). The regulations specify which communications dur\xc2\xad\ning a non-restricted proceeding from government sources outside the FCC\nshould be viewed as ex parte communications that must be included in the\nrulemaking record:\nUnless otherwise exempted under Section 1.1204, presenta\xc2\xad\ntions from members of Congress or their staff or from other\nagencies or branches of the Federal Government or their staff\nthat are of substantial significance and clearly intended to af\xc2\xad\nfect the ultim ate decision shall be treated as ex p a r te\npresentations and placed (if oral, a written summary of the\npresentation shall be prepared and placed) in the record of the\nproceeding by Commission staff or in accordance with the\nprocedures set forth in Section 1.1206(a)(l)-(3).\n47 C.F.R. \xc2\xa7 1.1206(a)(l)-(3) note 1. Thus, unless otherwise exempted under\nsection 1.1204(b), all ex parte communications from government officials or\nemployees that \xe2\x80\x9care of substantial significance and clearly intended to affect\nthe ultimate decision\xe2\x80\x9d must be placed in the rulemaking record. If the\ncommunications are oral, they may be placed in the record either by the\nmeans of a written summary prepared by Commission staff or by a written\nmemorandum submitted by the ex parte \xe2\x80\x9ccommunicator\xe2\x80\x9d on the day of the\ncommunication. 47 C.F.R. \xc2\xa7 1.1206(a).\nAccordingly, the FCC regulations require the placement in the FCC\nrulemaking record of a memorandum summarizing any ex parte communica\xc2\xad\ntion by a White House official to an FCC Commissioner in which the White\nHouse official advocates a position on this rulemaking, so long as the com\xc2\xad\nmunication is \xe2\x80\x9cof substantial significance and clearly intended to affect the\n\n3 We con su lted D avid H . Solom on, A ssistant G eneral C ounsel, A d m inistrative Law D ivision.\n4 We d o not ad d ress in th is m em orandum the au th o rity o f the P resident to d ire c t the FC C to change its\nregulations.\n\n5\n\n\x0cultim ate decision.\xe2\x80\x9d The regulations apply by their terms to all parts of the\ngovernment and make no exception for communications from White House\nofficials. Nor would any o f the section 1.1204(b) exemptions appear to be\napplicable. In particular, the FCC does not believe that exemption (5) is\navailable. See 47 C.F.R. \xc2\xa7 1.1204(b)(5) (exempting presentations \xe2\x80\x9cto or\nfrom an agency or branch of the Federal Government or its staff [that] in\xc2\xad\nvolved a matter over which that agency or branch and the Commission\nshare jurisdiction\xe2\x80\x9d). In the view of the FCC General Counsel\xe2\x80\x99s Office, the\nexemption for agencies that \xe2\x80\x9cshare jurisdiction\xe2\x80\x9d pertains only to other fed\xc2\xad\neral agencies that exercise statutory authority that overlaps with the FCC\xe2\x80\x99s\nauthority; it is not addressed to a government entity that might supervise the\nFCC. Accordingly, the White House does not, within the meaning of the\nexemption, \xe2\x80\x9cshare jurisdiction\xe2\x80\x9d with the FCC over financial interest and\nsyndication rules. We believe that the FCC\xe2\x80\x99s interpretation of exemption (5)\nis reasonable.\n\nin .\nFinally, you have asked whether it would be permissible for an FCC Com\xc2\xad\nm issioner to solicit the views of White House officials and whether any such\nsolicitation would be subject to the FCC disclosure requirements. We are\nunaware of any statutory or regulatory provisions that would prohibit such a\nsolicitation or require that it be included in the rulemaking record. The\nconclusions reached above regarding Sierra Club should apply equally to a\nsolicitation by an FCC Commissioner, because nothing in the court\xe2\x80\x99s ratio\xc2\xad\nnale suggested that the protection of ex parte White House communications\nshould be \xe2\x80\x9cone-way\xe2\x80\x9d : i.e., protecting communications by White House offi\xc2\xad\ncials\' but not to them.\nM oreover, nothing in the FCC regulations would preclude such a so\xc2\xad\nlicitation (indeed, the regulations contemplate solicitatigns, see 47 C.F.R.\n\xc2\xa7 1.1206(a)(3)) or require that it be docketed. The FCC General Counsel\xe2\x80\x99s\nOffice has advised us that solicitations are permissible and whether they are\nrecorded in the rulemaking record is discretionary. Any communication by\na W hite House official in response to a solicitation, however, would be sub\xc2\xad\nje c t to d isc lo su re under the sam e standards governing un so licited\ncommunications. See 47 C.F.R. \xc2\xa7\xc2\xa7 1.1204(b) note, 1.1206(a)(3), 1.1206(a)(1)(3) note 1.\n\nCONCLUSION\nEx parte communications by White House officials to FCC Commission\xc2\xad\ners that advocate positions on the ongoing FCC rulemaking proceeding to\nevaluate financial interest and syndication rules would be permissible. Ac\xc2\xad\ncording to FCC regulations, as interpreted by the FCC General Counsel\xe2\x80\x99s\nOffice, such communications must be disclosed in the FCC rulemaking record\n6\n\n\x0cif they are of substantial significance and clearly intended to affect the ulti\xc2\xad\nmate decision. Solicitations of the views of White House officials by FCC\nCommissioners would be permissible and need not be included in the\nrulemaking record. Any response by White House officials to such a solici\xc2\xad\ntation, however, would be subject to the same disclosure requirements that\napply to unsolicited communications.\nJOHN O. MCGINNIS\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n1\n\n\x0c'


b'Application of the Airport and Airway Improvement Act\nto the Proposed Lease of the Albany County Airport\nS ectio n 5 1 1 (a)(1 2 ) o f th e Airport an d A irw ay Im provem ent A ct perm its an airport ow ner o r\no p e ra to r to reco up its unreim bursed capital o r operating costs from airport revenues, regard\xc2\xad\nle ss o f w hen th e expenses were incurred. T h e Federal A viation A dm inistration, how ever, in\nth e ex ercise o f discretion co nferred upon the Secretary o f T ransportation by th e Act, m ay\no v ersee the rates charged to airp o rt users by private lessees to ensure that such rates rem ain\nfair an d reaso n able\n\nFebruary 12, 1991\nM\n\nem orandum\n\nO p in io n\n\nf o r t h e a c t in g\n\nDepartm ent\n\nG\n\neneral\n\nC\n\no u n sel\n\no f t r a n s p o r t a t io n\n\nThis memorandum responds to your request for our opinion on a pro\xc2\xad\nposed lease arrangement pursuant to which Albany County, New York, the\nowner of Albany Airport, would lease the Airport to a private joint venture.1\nYou have asked us to address two narrow questions. First, you have asked\nwhether the County\xe2\x80\x99s use of an initial lease payment of thirty million dollars\nfor general expenditures unrelated to the Airport would violate section\n511(a)(12) of the Airport and Airway Improvement Act of 1982, as amended\n(the \xe2\x80\x9cAAIA\xe2\x80\x9d), 49 U.S.C. app. \xc2\xa7 2210(a)(12). That section requires airport\nowners or operators who receive federal assistance to use all airport-gener\xc2\xad\nated revenues \xe2\x80\x9cfor the capital or operating costs of the airport, the local\nairport system, or other local [airport-related] facilities.\xe2\x80\x9d Second, you have\n\n1 L etter for W illiam P. Barr, Assistant Attorney G eneral, Office of Legal Counsel, from Philip D. Brady,\nG eneral C ounsel, Departm ent of Transportation (Mar. 5, 1990) (the \xe2\x80\x9cMarch Letter\xe2\x80\x9d). Mr. Brady subse\xc2\xad\nquently provided us with an undated and unsigned memorandum o f law prepared by the Federal Aviation\nA dm inistration (\xe2\x80\x9c FAA\xe2\x80\x9d ) (the \xe2\x80\x9cFAA M emorandum\xe2\x80\x9d ) discussing the issues raised by the proposed lease.\nL etter for J. M ichael Luttig, Acting A ssistant Attorney General, Office of Legal Counsel, from Philip D.\nBrady, G eneral Counsel, Department o f Transportation (July 27, 1990).\nYou have also provided us with internal legal memoranda prepared by the Department of Transporta\xc2\xad\ntion and the FAA, certain correspondence between the FAA and Albany County, and a memorandum\npresenting the views o f USAir, a current user of the Albany Airport. We have also received the written\nviews o f Baker, W orthington, Crossley, Stansbetty & Wolf, counsel to Lockheed Air Terminal.\n\n26\n\n\x0casked whether the AAIA permits the FAA to oversee the lessee\xe2\x80\x99s recoup\xc2\xad\nment of the thirty million dollars through rates charged to current and future\nairport users.2\nThe County maintains that its use of the thirty million dollar payment for\ngeneral municipal purposes does not violate the revenue-retention require\xc2\xad\nment in the statute because the payment constitutes reimbursements for capital\nand operating costs that the County has incurred for the Airport over the\npast three decades. The FAA argues, however, that section 511(a)(12) does\nnot permit an airport owner or operator to elect to recoup its capital and\noperating investments in an airport as long after those investments were\nmade as it has been since Albany County made its investments.\nWe conclude that section 51 l(a)(12) of the AAIA permits an airport owner\nor operator like Albany County to recoup its unreimbursed capital and oper\xc2\xad\nating expenses from airport revenues, regardless of when the expenses were\nincurred. The statute requires only that airport revenues be used \xe2\x80\x9cfor the\ncapital or operating costs\xe2\x80\x9d of the airport. The use of airport revenues to\nreimburse past capital or operating expenses may fairly be characterized as\nan expenditure \xe2\x80\x9cfor the capital or operating costs\xe2\x80\x9d of the airport within- the\nmeaning of the statute. We also conclude, however, that the FAA has discre\xc2\xad\ntion under other provisions of the AAIA to oversee the rates that the private\nlessee charges airport users. Therefore, whether and to what extent those\nrates should be permitted to reflect the lessee\xe2\x80\x99s investment, including the\nthirty million dollar payment, is a judgment that must be made in the first\ninstance by the FAA.3\nI.\nAlbany County has requested the FAA to approve a proposal made by a\njoint venture consisting of British American, Ltd. and Lockheed Air Termi\xc2\xad\nnal (\xe2\x80\x9cBALLAT\xe2\x80\x9d), to lease Albany Airport from the County for forty years,\nwith an option to renew the lease for an additional forty years, and to man\xc2\xad\nage the Airport either directly or through BALLAT\xe2\x80\x99s affiliates.4 Under the\n2 In his original request, Mr. Brady framed the issue raised by the proposed lease in term s of whether\n\xe2\x80\x9crecoupment of a private lessee\'s up-front or periodic payments from airport user charges would be\ninconsistent with [section 51l(a)(12)]\xe2\x80\x9d if the private lessee \xe2\x80\x9cretain[s] any portion\xe2\x80\x9d of such charges for\nits own use. March Letter at 1, 2 (emphasis added). Mr. Brady thereafter recast the request and asked\nus to address (1) whether the AAIA permits Albany County to use the thirty million dollar paym ent for\ngeneral expenditures; (2) whether the lessee may charge the thirty million dollar payment, as well as\ncertain other expenses, such as management and construction fees, to airport users; and (3) whether,\nunder the proposed lease, the County would retain sufficient control of the Airport to satisfy the contrac\xc2\xad\ntual assurance and funding eligibility requirements of the AAIA. FAA Memorandum at 3. As we have\ndiscussed with your office, the only issues we address herein are the two presented by your m odified\nrequest and set forth in the text above. The remaining issues you have raised turn on policy judgm ents\nthat m ust be made in the first instance by the FAA. See discussion infra note 15.\n\xe2\x80\x99 In his original request, Mr. Brady asked us whether it makes any legal difference if the lessee is a\npublic rather than a private entity. March Letter at 2. We do not believe that it does.\n4 The Secretary of Transportation has delegated the Administrator of the FAA the authority to carry out the\nfunctions vested in the Secretary by the AAIA. Memorandum for the Federal Aviation Administrator, from\nContinued\n\n27\n\n\x0cterms o f the proposal, Albany County would receive an initial payment of\nthirty million dollars, lease payments of $500,000 per year for the first twenty\nyears, and lease payments o f one million dollars per year thereafter. The\nCounty, which will retain title to the airport, intends to place the annual lease\npayments in an interest-bearing account for use in airport development and to\nuse the thirty million dollar payment for general expenditures unrelated to\nthe Airport.5 There is no dispute that the thirty million dollar payment to the\nCounty constitutes \xe2\x80\x9crevenue[] generated by the airport\xe2\x80\x9d within the meaning\no f section 51 l(a)( 12). See FAA Memorandum at 3-4.6 Furthermore, the FAA\ndoes not contest that as a general matter section 511 (a)( 12) permits an airport\nowner or operator to recoup airport-related capital and operating costs through\nairport revenues. Id. at 5. The narrow questions before us, therefore, are\nwhether the statute imposes a temporal limitation on the recovery of such\ncosts and, if not, whether the FAA can oversee BALLAT\xe2\x80\x99s recoupment of its\npayment to the County through rates charged to airport users.\nAccording to the FAA, see id. at 4, the County contends that it may use\nthe thirty million dollar payment for general municipal purposes without\nviolating the revenue-retention requirement in section 51 l(a)(12) because\nthe payment represents reimbursement for capital and operating costs that\nthe County has incurred for the Airport over the past three decades.7 In\n\n\xe2\x80\x98 (....continued)\nDrew Lew is. Secretary of Transportation (Sept. 15,1982). The County cannot transfer a property interest\nin the A irport w ithout the approval of the FAA because the County has received approxim ately twentyfour m illion dollars in federal assistance under the AAIA and related programs since acquiring the A ir\xc2\xad\nport from the City o f Albany in 1960. A s an AAIA grantee, the County has agreed that \xe2\x80\x98\xe2\x80\x98[i]t will not sell,\nlease, encum ber or otherwise transfer or dispose o f any part of its title or other interests in the [Airport]\nproperty . . . for the duration of the term s, conditions, and assurances in the grant agreement without\napproval by the Secretary.\xe2\x80\x9d FAA Advisory Circular No. 150/5100-16A, app. I at 3 (Oct. 4, 1988). Even\nif the proposed lease is executed, the County would remain subject to the assurance requirements in\nsection 5 1 1(a). Id. -, see also infra note 11. The County\xe2\x80\x99s obligations under the grant assurance require\xc2\xad\nm ents do not expire until the year 2010. See FAA Memorandum at 2.\n\xe2\x80\x99 The thirty m illion dollars would be paid by BALLAT to the County as consideration for a 170-acre\nparcel o f land adjacent to the Airport. BALLAT will immediately transfer the parcel back to the County,\nhowever, for one dollar for inclusion in the Airport\xe2\x80\x99s layout plan. FAA Memorandum at 1.\n6See also FAA O rder No. 5100 38A at 73 (Oct. 24, 1989) ("Airport revenue is revenue generated by\nfacilities and activities on or off airport. Examples of airport revenue include revenue from service fees,\nlanding fees, lease or rental fees, usage fees, sale o f commodities such as agricultural or forest products,\nproceeds from m ineral sales, or other net revenue produced from real property."). When it was origi\xc2\xad\nnally proposed that the Airport be sold to BALLAT rather than leased, proponents of the arrangem ent\nargued that the thirty million dollar paym ent to the County was not airport revenue. Memorandum of\nBaker, W orthington, Crossley, Stansberry & Wolf at 7-8 (Aug. 3, 1990). To our knowledge, however,\nnone o f the parties now contends that the lease payment is not \xe2\x80\x9crevenue[] generated by the airport.\xe2\x80\x9d\n\xe2\x80\x99 Prelim inary inform ation furnished to the FAA by the County indicates that its unreimbursed capital\nand operating costs consists o f (1) $4,437 million in cash paid to the City of Albany in 1960; (2) $8.62\nm illion in outstanding debt related to the Airport; (3) $9,148 million transferred to the Airport by the\nCounty between 1963 and 1985; and (4) $4,194 million in services contributed by the County for the\nbenefit o f the Airport, for a total of approximately $26.3 million. FAA Memorandum at 4. We express\nno view herein on the accuracy of these figures. We note, however, that the AAIA grants the FAA\ndiscretion to im pose documentation and accounting requirements on airport owners and operators. See\n49 U.S.C. app. \xc2\xa7 2210(a)( 10) ("[T]he airport operator or owner will submit to the Secretary such . . .\nairport financial and operations reports as the Secretary may reasonably req u est. . . .\xe2\x80\x9d). Thus, the FAA\nmay require the County to produce records sufficient to support the amounts claimed.\n\n28\n\n\x0cother words, the County maintains that the lease proposal would merely per\xc2\xad\nmit it to recover its earlier airport-related expenses which, consistent with\nsection 511(a)(12), it could have elected to recover from airport revenues at\nthe time the expenses were incurred. See id. at 5.8\nThe FAA, on the other hand, argues that section 51 l(a)(12) \xe2\x80\x9ccontem\xc2\xad\nplates a timing relationship between the expenditures for capital or operating\ncosts (or the commitment to do so) and the actual recoupment o f revenues.\xe2\x80\x9d\nId.9 The FAA does not define the time period within which capital or oper\xc2\xad\nating expenditures must be recouped. It simply contends that section\n511 (a)( 12) implicitly requires that an airport owner or operator elect to re\xc2\xad\ncoup such costs at the time the costs are incurred, or within a relatively\nshort period of time thereafter. Id .10\n\nII.\nUnder the AAIA, both \xe2\x80\x9cpublic\xe2\x80\x9d and \xe2\x80\x9cpublic-use\xe2\x80\x9d airports may apply for\nfederal grants to help fund airport development projects. 49 U.S.C. app. \xc2\xa7\xc2\xa7\n2202(a)(22), 2208(a)(1). If an application for AAIA assistance is approved,\nthe United States will typically bear ninety percent of the project costs. Id.\n\xc2\xa7 2209(a). Section 511(a) of the AAIA requires that as a condition to ap\xc2\xad\nproval of a project grant, the airport owner or operator must provide certain\nwritten \xe2\x80\x9cassurances\xe2\x80\x9d to the Secretary of Transportation. Id. \xc2\xa7 2210(a).11 In\norder to comply with section 511(a), an airport owner or operator who receives\n\xe2\x80\xa2The perm issibility o f the County\xe2\x80\x99s proposed use of the thirty million dollar payment depends entirely\nupon the County\xe2\x80\x99s unreimbursed capital and operating costs, not the capital or operating costs o f BALLAT.\nIn turn, whether BALLAT can charge the thirty million dollars to airport users depends upon whether,\nin the FAA\xe2\x80\x99s view, the inclusion of the thirty million dollars in BALLAT\xe2\x80\x99s rates is consistent with the\nCounty\'s continuing obligation under the AAIA to make the Airport available for public use on fair and\nreasonable terms. See discussion infra Part III.\n9 In recent years, the FAA appears to have expressed different views on the timing issue. In 1985, the\nFAA relied upon an argument sim ilar to the one it advances here in rejecting a proposal by the C ity o f\nBurlington, Vermont, to use surplus revenues from Burlington International Airport to reim burse the\nCity for unreimbursed airport subsidies. Letter for the Honorable Bernard Sanders, M ayor o f Burlington,\nVermont, from J.W. Murdock III, Chief Counsel, FAA (Jan. 8, 1985).\nIn 1989, however, in response to a proposal by the Albany Capital District Transit Agency whereby\nthe Transit Agency should have acquired a long-term lease interest in the Airport for $25.25 m illion,\nthe FAA Chief Counsel replied that \xe2\x80\x9cif the payment to Albany County is limited to payment o f the\ncurrently outstanding debt incurred for the capital or operating costs of the airport, we would not expect\nm ajor obstacles to transfer." Letter for the Honorable James T. Coyne, Albany County Executive, from\nGregory S. Walden, Chief Counsel, FAA at 2 (Dec. 4, 1989).\nFor the reasons discussed in Part II below, we believe that the latter view more accurately reflects the\ncorrect interpretation of section 511 (a)( 12)\n10We do not understand the FAA to argue that once an airport owner or operator has elected to recover\ncapital or operating costs, the recovery must necessarily be accomplished within a particular period of\ntime. Indeed, section 511 (a)( 12) itself contemplates the use of airport revenues to retire long-term debt.\n" Section 511 provides in part:\n(a) Sponsorship\nAs a condition precedent to approval of an airport development project contained in a\nproject grant application submitted under this chapter, the Secretary [of Transportation]\nshall receive assurances, in writing, satisfactory to the Secretary, that\nContinued\n\n29\n\n\x0cfederal assistance must satisfy all of the contractual assurance requirements\nenumerated in the statute.\nSection 511 (a)(12) requires that an airport owner or operator provide the\nSecretary with assurances that \xe2\x80\x9call revenues generated by the airport\xe2\x80\x9d will\nbe expended for \xe2\x80\x9ccapital or operating costs\xe2\x80\x9d related to the airport. 49 U.S.C.\napp. \xc2\xa7 2210(a)(12).12 The FAA agrees (as it must) that there is no express\nlimitation in section 51 l(a)(l 2) on the time within which airport capital and\noperating costs may be recovered through airport revenues, or any affirma\xc2\xad\ntive evidence in the history o f section 511 (a)( 12) that such a limitation should\nbe implied. FAA Memorandum at 4-5, 6. The FAA argues, however, that\nthe text and history of the AAIA as a whole indicate that Congress intended\nto incorporate such a limitation in section 511(a)(12). Id. at 5-7. We do not\ndiscern any such intent in either the text or the legislative history.\nThe FAA advances two essentially textual arguments in support o f its\nposition. First, the FAA analogizes unreimbursed airport expenses to \xe2\x80\x9ca\n\xe2\x80\x98debt\xe2\x80\x99 of the airport to the [owner or operator\xe2\x80\x99s] general treasury.\xe2\x80\x9d Id. at 5.\nIt then reasons from the express exception to the revenue-retention requirement\n\n" (....continued)\n(1) the airport to which the project relates will be available for public use on fair and\nreasonable terms and without unjust discrim ination.. . .\n(12) a ll revenues generated b y the airport, if it is a public airport, and any local taxes on\naviation fuel (other than taxes in effect on December 30, 1987) will be expended fo r the\ncapital o r operating costs o f the airport, the local airport system, or other local facilities\nw hich are ow ned or operated by the owner or operator of the airport and directly and sub\xc2\xad\nstantially related to the actual air transportation o f passengers or property; except that if\ncovenants or assurances in debt obligations issued before September 3, 1982, by the owner\nor operator o f the airport, or provisions enacted before September 3,1982, in the governing\nstatutes controlling the owner o r operator\xe2\x80\x99s financing, provide for the use o f revenues from\nany o f the airport owner or operator\xe2\x80\x99s facilities, including the airport, to support not only\nthe airport but also the airport ow ner or operator\xe2\x80\x99s general debt obligations or other facili\xc2\xad\nties, then this limitation on the use of all other revenues generated by the airport (and, in the\ncase o f a public airport, local taxes on aviation fuel) shall not apply. . . .\n(b) Com pliance\nTo insure compliance with this section, the Secretary shall prescribe such project sponsorship\nrequirem ents, consistent with the terms of this chapter, as the Secretary considers necessary.\n49 U .S.C. app. \xc2\xa7 2210 (emphases added); see also FAA Advisory Circular No. 150/5100-16A, app. 1 at 6,\n7 (Oct. 4, 1988) (incorporating language of sections 511(a)(1) and 511(a)(12) into the contractual assur\xc2\xad\nances required o f grant recipients).\nl2The phrase \xe2\x80\x9ccapital or operating costs\xe2\x80\x9d in section 51 l(a)(12) is not defined. The Supreme Court has\nstated, how ever, that "it should be generally assumed that Congress expresses its purposes through the\nordinary m eaning o f the words it uses.\xe2\x80\x9d Escondido Mut. Water Co. v. La Jolla Band o f M ission Indians,\n466 U.S. 765, 772 (1984). \xe2\x80\x9cCapital costs" and \xe2\x80\x9coperating costs\xe2\x80\x9d are generally understood as referring,\ncollectively, to all o f the costs incurred by a business. See, e.g., Eric Louis Kohler, A Dictionary fo r\nA ccountants at 82, 333 (5th eJ. 1975). Consistent with this common meaning, section 511(g) o f the\nAAIA, which perm its the use of certain airport-generated revenues in the State of Hawaii for highway\nconstruction projects, broadly defines the phrase \xe2\x80\x9cairport capital and operating costs\xe2\x80\x9d as \xe2\x80\x9ccosts incurred\n. . . for operation o f all airports . . and costs for debt service incurred . . . in connection with capital\nprojects for such airports, including interest and amortization of principal costs.\xe2\x80\x9d 49 U.S.C. app. \xc2\xa7\n2210(g)(4)(A ). The FAA does not suggest that a different meaning should be ascribed to the phrase\n\xe2\x80\x9ccapital or operating costs" in section 511 (a)( 12)\n\n30\n\n\x0cin section 51 l(a)(12) for certain non-airport-related debt obligations incurred\nprior to the effective date of the AAIA that the statute generally does not\npermit an airport owner or operator to recoup past capital or operating ex\xc2\xad\npenses on a reimbursement theory. We do not believe that the exception in\nsection 511 (a)( 12) supports the inference that the FAA would have us draw.\nThe exception merely permits airport owners or operators to use airport\nrevenues to retire certain debt obligations that were incurred for expendi\xc2\xad\ntures that were not airport-related. The exception implies nothing about the\nrecoverability of costs that were airport-related, and certainly nothing about\na time limitation on the recoverability of airport-related costs. Indeed, if the\nexception suggests anything about the proper interpretation o f section\n511(a)(12), it is that when Congress intended to limit or to permit the recov\xc2\xad\nery of costs based upon when the costs were incurred, it did so expressly.\nSecond, the FAA advances a similar textual argument based upon a 1987\namendment to the revenue-retention requirement. As originally enacted in\n1982, section 511 (a)( 12) of the AAIA permitted an airport owner to use\nairport revenues \xe2\x80\x9cfor . . . other local facilities which are owned or operated\nby the owner or operator of the airport and directly related to the actual\ntransportation of passengers or property.\xe2\x80\x9d Tax Equity and Fiscal Responsi\xc2\xad\nbility Act (\xe2\x80\x9cTEFRA\xe2\x80\x9d), Pub. L. No. 97-248, tit. V, \xc2\xa7 51 l(a)(12), 96 Stat. 324,\n687 (1982). In 1987, section 511 (a)( 12) was amended by, inter alia, requir\xc2\xad\ning that such local facilities be \xe2\x80\x9cdirectly and substantially related to the\nactual air transportation of passengers or property.\xe2\x80\x9d Airport and Airway\nSafety and Capacity Expansion Act of 1987, Pub. L. No. 100-233, tit. I, \xc2\xa7\n109, 101 Stat. 1486, 1499. The FAA asserts, without explanation, that \xe2\x80\x9c[t]his\nlimitation is inconsistent with the broad interpretation [of the statute] re\xc2\xad\nquired for the reimbursement theory.\xe2\x80\x9d FAA Memorandum at 6.\nThe 1987 amendment, however, is not inconsistent with the recovery of\nunreimbursed, airport-related capital or operating expenses under the statute.\nThe 1987 amendment simply narrowed the permissible uses of airport rev\xc2\xad\nenues to expenditures that were not only \xe2\x80\x9cdirectly\xe2\x80\x9d but also \xe2\x80\x9csubstantially\xe2\x80\x9d\nrelated to actual air transportation, to further ensure that such revenues would\nnot be diverted for general expenses. See H.R. Conf. Rep. No. 484, 100th\nCong., 1st Sess. 63-64 (1987); H.R. Rep. No. 123, 100th Cong., 1st Sess., pt.\n2, at 13 (1987). The amendment thus is concerned solely with the relation\xc2\xad\nship between expenditures and transportation services provided by the airport\n(i.e., the relationship must be \xe2\x80\x9cdirect[] and substantial[]\xe2\x80\x9d); the amendment\nsimply does not bear on whether Congress did or did not intend to limit the\nrecoverability of past capital or operating costs after a certain period of time.13\n13 The FAA also submits that an airport owner or operator\'s recoupment o f unreimbursed investments is\ninconsistent with sections 511(a)(1) and 511(a)(3) of the AAIA, 49 U.S.C. app. \xc2\xa7\xc2\xa7 2210(a)(1), (a)(3),\nwhich require, respectively, that an airport owner or operator provide assurances to the Secretary that\n\xe2\x80\x9cthe airport . . . will be available for public use on fair and reasonable terms and without unjust d is\xc2\xad\ncrim ination," and that \xe2\x80\x9cthe airport and all facilities thereon or connected therewith will be suitably\noperated and maintained \xe2\x80\x9d FAA Memorandum at 5-6, 8. Although the requirement in section 511 (a)( 1)\nContinued\n\n31\n\n\x0cApart from its arguments from the text of the AAIA, the FAA asserts that\nthe \xe2\x80\x9clegislative history of the [Act] and predecessor legislation indicates\nstrong congressional concerns about the use of funds generated at [federally\nfinanced] facilities.\xe2\x80\x9d FAA Memorandum at 6. The FAA, however, does not\ncite to any particular passage in the legislative record that in any way sug\xc2\xad\ngests that C ongress intended to im pose a tem poral lim itation on the\nrecoverability of unreimbursed \xe2\x80\x9ccapital or operating costs\xe2\x80\x9d through airport\nrevenues, and we have not found any evidence in the legislative history that\nCongress intended such a limitation.\nThe AAIA was enacted in 1982 as title V of TEFRA, Pub. L. No. 97-248,\n96 Stat. 324, 671. The House and Senate Conference Reports of TEFRA\ndescribe the revenue-retention requirement in section 511 (a)( 12) as follows:\nOne [requirement] is that airports receiving assistance under\nthis program must dedicate all revenues generated by the air\xc2\xad\nport for the capital [and] operating costs o f that airport, the\nlocal airport system, or other local facilities which are owned\nby the owner or operator of the airport and used for the trans\xc2\xad\nportation of passengers or property. This provision is designed\nto ensure that airport systems which are receiving Federal as\xc2\xad\nsistance are utilizing all locally generated revenue for the\nsystems which they operate. Airports that are part of a uni\xc2\xad\nfied ports authority are exempt from this requirem ent if\ncovenants or assurances in previously issued debt obligations\nor controlling statutes require that these funds are available\nfor use at other port facilities.\nHowever, airports users should not be burdened with \xe2\x80\x9chid\xc2\xad\nden taxation\xe2\x80\x9d for unrelated municipal services.\nH.R. Conf. Rep. No. 760, 97th Cong., 2d Sess. 712 (1982); S. Conf. Rep.\nNo. 530, 97th Cong., 2d Sess. 712 (1982); see also S. Rep. No. 494, vol. 2,\n97th Cong., 2d Sess. 28 (1982); S. Rep. No. 97, 97th Cong., 1st Sess. 27-28\n(1981).14 As the Conference Reports state, section 511 (a)( 12) is intended to\n\nl3(. ...continued)\nthat an airport be made available "on fair and reasonable term s\xe2\x80\x9d may, in practical effect, ultimately limit\nan ow ner or o p erato r\xe2\x80\x99s ability to recoup unreimbursed investments from airport users, section 511 (a)( 1)\ncannot be read to flatly prohibit such recoupm ent. The FAA alternatively suggests that section 511(a)(3)\nprohibits the contem plated reimbursement because it requires an airport owner or operator \xe2\x80\x9cto spend its\nown m oney to keep the airport running.\xe2\x80\x9d FAA Memorandum at 8 (emphasis added). Neither the text\nnor the legislative history o f section 511 (a)(3) in any way supports this assertion.\n14 Som e legislative m aterials relevant to the interpretation o f the AAIA pre-date its enactment in 1982.\nThe AAIA was originally passed by the Senate in 1980, but failed to receive consideration in the House\nprior to the end o f the 96th Congress In 1981, the AAIA was reported out of the Senate Comm ittee on\nCom m erce, Science, and Transportation, but was not passed in either chamber. See S. Rep. No. 97,\n97th Cong., 1st Sess. 1-2 (1981).\n\n32\n\n\x0censure that airport owners or operators who receive federal assistance \xe2\x80\x9care\nutilizing all locally generated revenue for the systems which they operate,\xe2\x80\x9d\nand that the users of such airports are \xe2\x80\x9cnot . . . burdened with \xe2\x80\x98hidden taxa\xc2\xad\ntion\xe2\x80\x99 for unrelated municipal services.\xe2\x80\x9d The plain purpose of section 511 (a)( 12)\nis simply to prevent an airport owner or operator who receives federal assis\xc2\xad\ntance from using airport revenues for expenditures unrelated to the airport.\nThus, a grant recipient cannot use airport revenues to pay for \xe2\x80\x9ccapital or\noperating costs\xe2\x80\x9d that are not airport-related. There is no suggestion, how\xc2\xad\never, that section 511 (a)( 12) was intended to limit the time within which an\nairport owner or operator may elect to recover \xe2\x80\x9ccapital or operating costs\xe2\x80\x9d\nthat are airport-related.\nThe FAA finally argues that construing section 511(a)(12) to permit air\xc2\xad\nport owners or operators to recoup their past capital or operating expenses\nfrom airport revenues on a reimbursement theory is unwise as a matter of\npolicy, and would raise a host of administrative difficulties. FAA Memoran\xc2\xad\ndum at 7-12. Whatever the merits of these policy arguments, they do not\nsupport the conclusion that, as a matter of law, section 511 (a)( 12) precludes\nthe recoupment of such expenses on a reimbursement theory.15\nIn sum, section 51 l(a)(12) does not by terms impose a temporal limita\xc2\xad\ntion on the recovery of airport capital or operating costs through airport\nrevenues, nor is there any evidence that Congress intended to impose such a\nlimitation. Accordingly, we conclude that, consistent with section 51 l(a)(12),\nan airport owner or operator may elect to recoup its airport-related capital or\noperating costs when the costs are incurred or at any time thereafter.\n\nIII.\nYou have additionally asked us whether, assuming that Albany County is\npermitted to accept and use the thirty million dollar lease payment for gen\xc2\xad\neral expenditures unrelated to the Airport, the FAA retains authority to oversee\nthe rates the BALLAT charges to airport users. We conclude that the FAA\ndoes retain such authority. Section 511(a)(1) of the AAIA provides in part\n15 Among other things, the FAA argues that the lease of an airport may collapse traditional distributions\nbetween airport owners and operators, who are required to keep revenues on-airport, and airport busi\xc2\xad\nnesses such as service providers and concessionaires, who are permitted to take revenues off-airport,\nraising issues as to whether various kinds of income received by the lessee constitute \xe2\x80\x9crevenues gener\xc2\xad\nated by the airport\xe2\x80\x9d within the meaning of section 511 (a)( 12). FAA Memorandum at 8-10. In addition,\nthe FAA questions whether a lease arrangement affords an airport owner or operator sufficient control o f\nthe airport to satisfy its assurances o f compliance with the requirements o f section 511(a) as a whole, and\nto remain eligible for federal funds. Id. at 10-13.\nThese questions call for policy judgm ents that must be made \xe2\x80\x94 and, in our understanding, traditionally\nhave been made \xe2\x80\x94 in the first instance by the FAA. See, e.g., id. at 9 (\xe2\x80\x9cIt would be possible, applying\nprinciples o f traditional public utility rate regulation and existing FAA policy, to make judgm ents about\nwhat categories of \xe2\x80\x98costs\xe2\x80\x99 can be included in the rate base.\xe2\x80\x9d ) (emphasis added); id. at 11 (\xe2\x80\x9cthe [lease]\narrangement is inherently inconsistent with the sponsor\xe2\x80\x99s obligation to provide adequate assurances" to\nthe Secretary). We therefore do not address which airport receipts received by BALLAT in its capacity as\nlessee would constitute "revenues generated by the airport\xe2\x80\x9d within the meaning of the statute, or whether\nthe lease of Albany Airport is consistent with the County\xe2\x80\x99s obligation under the AAIA to maintain co n \xc2\xad\ntrol o f the Airport. See discussion supra note 2.\n\n33\n\n\x0cthat, as a condition to approval of a project grant, an airport owner or opera\xc2\xad\ntor must assure the Secretary of Transportation that \xe2\x80\x9cthe airport to which the\nproject relates will be available for public use on fair and reasonable terms.\xe2\x80\x9d\n49 U.S.C. app. \xc2\xa7 2210(a)(1).16 Although the FAA does not view the AAIA\nas having established a \xe2\x80\x9cfull-scale ratemaking regulatory regime,\xe2\x80\x9d FAA Memo\xc2\xad\nrandum at 5-6, the FAA acknowledges that under the authority of section\n511(a)(1), it currently \xe2\x80\x9creview[s] the reasonableness of the level and struc\xc2\xad\nture of specific airport charges.\xe2\x80\x9d Id. at 6; see also id. at 9.17 Consistent with\nsection 511(a)(1) and the discretion that has traditionally been conferred on\nadministrative bodies that monitor the rates charged by a regulated industry,\nwe believe that the AAIA grants the Secretary of Transportation substantial\ndiscretion to limit the rates charged to airport users by BALLAT. It would\nbe within the discretion of the FAA, for example, to employ historical cost\nratemaking principles or some other approach in determining whether the\nrates charged by BALLAT are \xe2\x80\x9cfair and reasonable.\xe2\x80\x9d The methodology im\xc2\xad\nposed by the FAA will in turn determine whether and to what extent the\nrates BALLAT charges airport users may reflect BALLAT\xe2\x80\x99s lump sum pay\xc2\xad\nment to the County.\n\nCONCLUSION\nWe conclude for the foregoing reasons that section 511(a)(12) of the\nAAIA does not limit the time within which an airport owner or operator may\nrecoup unreimbursed capital or operating costs through airport revenues. We\n\n\xe2\x80\x9c Section 5 1 1(a)(1) continues a provision that originally appeared in the Federal Airport Act of 1946,\nch. 377, \xc2\xa7 11(1), 60 Stat. 170, 176, and was subsequently reenacted in the Airport and Airway Develop\xc2\xad\nm ent A ct o f 1970, Pub. L. No. 91-258, tit. I, \xc2\xa7 18(1), 84 Stat. 219, 229. The phrase \xe2\x80\x9cfair and reasonable\nterm s\xe2\x80\x9d is not defined in the 1946 Act, the 1970 Act, or the AAIA, and the legislative history o f this\nprovision is sparse. See, e.g., H.R. Rep. No. 844, 79th Cong., 1st Sess. 4 (1945) (\xe2\x80\x9cThe Administrator\n[of C ivil Aeronautics] may require project sponsors to enter into agreements insuring, among other\nthings, the continued availability of the airport for public use on fair and reasonable terms . . . .\xe2\x80\x9d); see\nalso H.R. Rep. No. 601, 91st Cong.. 1st Sess. 24 (1969); H.R Conf. Rep. No. 760, 97th Cong., 2d Sess.\n711-12 (1982). The standard in section 511(a)(1) is comparable to the standard in the Anti-Head Tax\nAct, which provides in part that a State or political subdivision thereof that owns or operates an airport\nmay \xe2\x80\x9clevy[] or co!lect[] reasonable rental charges, landing fees, and other service charges from aircraft\noperators fo r the use o f airport facilities." 49 U.S.C. app. \xc2\xa7 1513(b).\n17 Cf. 49 U .S.C. app. \xc2\xa7 2 2 18(a) (\xe2\x80\x9cThe Secretary is empowered to perform such acts . . . pursuant to and\nconsistent with the provisions of this chapter, as the Secretary considers necessary to carry out the\nprovisions o f . . this chapter.\xe2\x80\x9d); New England Legal Found, v. M assachusetts P o n A u th ., 883 F.2d 157,\n169 (1st Cir. 1989) (noting that \xe2\x80\x9cCongress has entrusted the administration of \xc2\xa7 511 to the Secretary\xe2\x80\x9d\nand w ithin the bounds o f the statutory framework \xe2\x80\x9cthe Secretary has wide discretion\xe2\x80\x9d ), City o f Denver\nv. C ontinental A ir Lines, Inc., 712 F. Supp. 834, 839 (D. Colo. 1989) (\xe2\x80\x9cThe enforcement o f . . section\n[511 (a)( 12)] is exclusively within the administrative authority of the Secretary o f the Department of\nT ransportation.\xe2\x80\x9d ).\n\n34\n\n\x0calso conclude, however, that in the exercise of the discretion conferred upon\nthe Secretary of Transportation by the AAIA, the FAA may oversee the rates\ncharged to airport users by BALLAT \xe2\x80\x94 including the extent to which they\nmay permissibly reflect BALLAT\xe2\x80\x99s thirty million dollar payment to Albany\nCounty \xe2\x80\x94 to ensure that these rates remain fair and reasonable.\nJ. MICHAEL LUTTIG\nAssistant Attorney General\nOffice o f Legal Counsel\n\n35\n\n\x0c'


b'September 12, 1979\n\n79-67\n\nMEMORANDUM OPINION FOR THE ACTING\nDIRECTOR, EXECUTIVE OFFICE FOR U.S.\nATTORNEYS\nAssistant U.S. Attorney\xe2\x80\x94Residence Requirement\n(28 U.S.C. \xc2\xa7 545)\n\nYour Office requested our opinion whether a prospective appointee to\nthe position o f Assistant U.S. A ttorney for the Eastern District o f North\nCarolina satisfies the residency requirement o f 28 U .S.C . \xc2\xa7 545(a) (1976).\nT hat section provides:\nEach United States attorney and assistant United States attorney\nshall reside in the district for which he is appointed, except that\nthese officers o f the District o f Columbia and the Southern\nDistrict o f New York may reside within 20 miles thereof.\nThe U.S. A ttorney for the Eastern District o f North Carolina wishes to\nappoint Mr. A, who currently resides in the Middle District o f North\nCarolina, as an Assistant U.S. A ttorney for the Eastern District o f North\nCarolina. It would be a hardship for A \xe2\x80\x99s family to move to the Eastern\nDistrict because his wife is completing her undergraduate degree at a\nuniversity in N orth Carolina.\nAccording to the inform ation provided to us, A is willing to establish a\nresidence in the Eastern District to avoid conflict with the residency re\xc2\xad\nquirem ent. He plans to rent an apartm ent at which he usually will be\navailable during the workweek. His family would relocate when his wife\ncompletes her undergraduate work. A is also willing to change his voting\nregistration to W ake C ounty in the Eastern District and take other\nmeasures necessary to satisfy the residency requirement.\nThe term \xe2\x80\x9c residence\xe2\x80\x9d generally refers only to physical presence, not to\nlegal domicile or voting residence. Weible v. United States, 244 F. (2d)\n158, 163 (9th Cir. 1957); In Re National Discount Corp., 196 F. Supp.\n766, 769 (W .D .S.C . 1961). A person can have only one domicile, but may\nhave more than one residence or no residence at all. Corwin Consultants,\nInc. v. Interpublic Group o f Companies, Inc., 512 F. (2d) 605, 610 (2d Cir.\n360\n\n\x0c1975). The meaning o f the term varies depending on its context and must\nbe interpreted in light o f the statute in which it appears. See, Guessefeldt\nv. McGrath, 342 U.S. 308, 311-12 (1951). In In Re National Discount\nCorp., supra, 1% F. Supp. at 769, the court stated:\nIn statutory construction, it is settled that \xe2\x80\x98reside\xe2\x80\x99 is an elastic\nterm to be interpreted in the light o f the purpose o f the statute in\nwhich such term is used; \xe2\x80\x98reside\xe2\x80\x99 is a term whose statutory mean\xc2\xad\ning depends upon the context and purpose o f the statute in which\nit occurs.\nIt appears from the legislative history that the purpose o f the residency re\xc2\xad\nquirement was to ensure the availability o f the attorneys. The residency re\xc2\xad\nquirement for Assistant U.S. Attorneys first was enacted in 1896, in a\ngeneral appropriation measure. Legislative, Executive and Judicial Ex\xc2\xad\npenses Appropriations Act, ch. 252, \xc2\xa7 8, 29 Stat. 181 (1896). Residency\nhas been a requirement since that time, although exceptions were provided\nfor the Southern District o f New York and the District o f Columbia. In\nthe debates o f the bill amending the statute to except the District o f C o\xc2\xad\nlumbia, congressional concern focused on the attorneys\xe2\x80\x99 physical presence\nwithin the district, not on legal domicile. Representative McLaughlin,\nspeaking in favor o f the bill, commented that the residency provision re\xc2\xad\nquires the attorneys to \xe2\x80\x9c move into\xe2\x80\x9d the district and \xe2\x80\x9c live in\xe2\x80\x9d the district.\n87 C o n g r e s s i o n a l R e c o r d 3269 (1941). Representative South, opposing\nthe bill, stated, \xe2\x80\x9c it will be to the best interest o f the people whom they\nserve to require them to live among such people during their tenure o f o f\xc2\xad\nfice.\xe2\x80\x9d Id. It was suggested that other m etropolitan areas might experience\nproblems similar to those o f New York and the District o f Columbia, but\nno additional exceptions were made.\nThe prior law and revision note appearing in the United States Code\nunder a precursor o f \xc2\xa7 545(a) stated that \xe2\x80\x9c the residence requirement o f\nthis section has no relation to domicile or voting residence * * * .\xe2\x80\x9d See\n28 U.S.C. \xc2\xa7 545 (1976), prior law and revision note.\nIn our opinion, the residency requirement o f \xc2\xa7 545(a) would be satisfied\nif Mr. A rents an apartm ent in the Eastern District and lives there during\nthe workweek. It is not legally necessary that he change his voting\nregistration.\nL eon U\n\nlm an\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n361\n\n\x0c'


b'June 2, 1977\n\n77-32\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\n\xe2\x80\x9cOffice under the United States\xe2\x80\x9d\xe2\x80\x94National\nCommission on Neighborhoods\n\nYou have asked for our opinion concerning the question o f whether\nservice by a State official as a member of the National Commission on\nNeighborhoods would constitute holding an office under the authority\nof the United States. It is our opinion that it would not be so construed\nunder the Federal Constitution. Article I, Section 6, Clause 2 provides\nin part that \xe2\x80\x9cno Person holding any Office under the United States,\nshall be a Member of either House during his Continuance in Office.\xe2\x80\x9d\nThe legislation establishing the agency itself includes as members two\nMembers of the Senate and two Members of the House. Obviously, it\nwas not intended that they must relinquish their congressional offices.\nThe practice of Presidents in appointing Members of Congress as\ncommissioners to negotiate treaties and agreements with foreign gov\xc2\xad\nernments is noted in Constitution of the United States of America,\nRevised and Annotated, 1972, p. 523: Such appointments \xe2\x80\x9care ordinari\xc2\xad\nly merely temporary and for special tasks, and hence do not fulfill the\ntests of \xe2\x80\x98office\xe2\x80\x99 in the strict sense.\xe2\x80\x9d The classic definition of an office in\nthe constitutional sense is found in United States v. Hartwell, 6 Wall.\n385, 393 (1867):\nAn office is a public station, or employment, conferred by the\nappointment of government. The term embraces the ideas of\ntenure, duration, emolument, and duties.\nThe Court determined that Hartwell, a clerk in the office of the\nAssistant Treasurer of the United States, was an officer, in part because\n\xe2\x80\x9chis duties were continuing and permanent, not occasional and tempo\xc2\xad\nrary.\xe2\x80\x9d\nYour attention is also invited to the discussion (in an 1899 House\nJudiciary Committee report (Rep. No. 2205, 55th Cong., 3rd Sess.)) of\nwhether holding positions on certain commissions constituted holding\noffice within the meaning of the Constitution.\nL\n\neon\n\nU\n\nlm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n125\n\n\x0c'


b'May 18, 1978\n\n78-28\n\nMEMORANDUM OPINION FOR THE ASSISTANT\nATTORNEY GENERAL, CRIMINAL DIVISION\nImmigration and Nationality Act (8 U.S.C. \xc2\xa7 1329)\xe2\x80\x94\nEluding Inspection\xe2\x80\x94 Criminal Offense\xe2\x80\x94 Venue\n\nThis is in response to your m emorandum concerning prosecutions under 8\nU .S.C . \xc2\xa7 1325 following the recent unreported decision of the Idaho Federal\nDistrict Court in United States v. Wissel, which by implication held that that\nprovision did not create a continuing offense. Specifically, you inquire whether\nprosecutions for \xe2\x80\x9c eluding inspection\xe2\x80\x9d under 13251 may continue to be brought\nin the district where a defendant is apprehended, as authorized by 8 U .S.C .\n\xc2\xa7 1329,2 or whether the Sixth A m endm ent1 bars such proceedings except in a\ndistrict at or near the border where the inspection should have taken place. We\nconcur in the conclusion reached in your memorandum that because of the\nSixth Amendment requirem ent, \xc2\xa7 1329 is unconstitutional since it authorizes\nprosecution in a district other than the district at or near the border where the\ninspection should have taken place. Accordingly, we recommend that \xc2\xa7 9-73.110\no f the United States A ttorneys\xe2\x80\x99 Manual be amended.\n\n\'8 U .S .C . \xc2\xa7 1325 p ro v id e s:\nA n y alien w h o ( I ) e n te rs th e U n ite d S ta te s a t any tim e o r p la c e o th e r th a n as\nd e sig n a te d b y im m ig ratio n o ffic e rs , o r (2 ) e lu d e s e x a m in a tio n o r in sp ec tio n by im m ig ra \xc2\xad\ntio n o ffic e rs , o r (3 ) o b ta in s e n try to th e U n ite d S ta te s by a w illfu lly false o r m isle ad in g\nre p re sen ta tio n o r th e w illfu l c o n c e a lm e n t o f a m a te ria l fa c t, sh all . . . be g u ilty o f a\nm isd e m ea n o r. . . .\n28 U .S .C . \xc2\xa7 1329 p ro v id e s in p e rtin e n t part:\nT h e d istric t c o u rts o f th e U n ite d S ta te s sh all h av e ju risd ic tio n o f all c a u s e s, c ivil and\nc rim in a l, a risin g u n d e r an y o f th e p ro v is io n s o f th is su b c h a p te r. It shall be the d u ty o f the\nU n ite d S ta te s a tto rn e y o f th e p ro p e r d is tric t to p ro se cu te e v e ry su ch suit w h e n b ro u g h t by\nth e U n ite d S ta te s. N o tw ith s ta n d in g a n y o th e r la w , su ch p ro se c u tio n s o r su its m ay be\nin stitu te d at an y p la c e in th e U n ite d S ta te s at w h ic h th e v io la tio n m ay o c c u r o r at w hich\nth e p e rso n c h a rg e d w ith a v io la tio n u n d e r sec tio n 1325 o r 1326 o f th is title m ay be\na p p re h en d e d . . . .\n\xe2\x80\x99T h e S ix th A m e n d m e n t\'s g u a ra n te e th a t \xe2\x80\x9c In all c rim in a l p ro s e c u tio n s, the acc u sed shall en jo y\nthe rig h t to a sp ee d y an d p u b lic tria l, by an im p a rtia l ju ry o f the S ta te and d istric t w h erein the crim e\nsh all h a v e b een c o m m itte d . . . " c o m p le m e n ts th a t fo u n d in A rtic le III. \xc2\xa7 2 , cl. 3 , that \xe2\x80\x9c T h e T ria l o f\nall C rim e s. . . sh all be by Ju ry ; an d su ch T ria l sh all be h e ld in the S tate w h e re the said C rim e s shall\nh av e b e en c o m m itte d ."\n\n110\n\n\x0cAbsent a continuing offense rationale, you have indicated that an \xe2\x80\x9c eluding\ninspection\xe2\x80\x9d violation cannot be deemed to have been committed in the district\nin which the defendant is found. It follows, then, as a constitutional matter, that\nall prosecutions charging violations of \xc2\xa7 1325 must be brought in the district\nwhere the offense was com m itted, i.e., where the alien entered the country or\nwhere the inspection station to which he was to have reported is located.\nThere is no way in which the clear language of \xc2\xa7 1329 can be reconciled\nwith this conclusion; it appears instead that its specification o f the venue of\n\xc2\xa7 1325 prosecutions as \xe2\x80\x9c at any place . . . at which the person charged with\n[such] a violation may be apprehended\xe2\x80\x9d is merely an anomaly produced by\ninartful drafting. Section 1329 was originally enacted in 1917,4 before\nillegal entry had been criminalized rather than simply made a ground for\ndeportation. The language o f this early version5 differed in minor but signifi\xc2\xad\ncant ways from the current version adopted as part o f the overall 1952 revi\xc2\xad\nsion o f the immigration laws. W hile the earlier language appeared to apply\nto both criminal and civil proceedings and might be read to provide for pro\xc2\xad\nceedings where the person charged \xe2\x80\x9c may be found\xe2\x80\x9d only in the latter case,6\nthe 1952 revision subtly but significantly changed this focus by authorizing\nprosecutions only under certain enumerated criminal provisions (namely,\n\xc2\xa7\xc2\xa7 1325 and 1326) in districts where the violator is \xe2\x80\x9c apprehended,\xe2\x80\x9d not\nsimply where he might be found, i.e., reside. This modification makes good\nsense in relation to \xc2\xa7 1326, which was simultaneously revised to render\ncriminal the act o f being \xe2\x80\x9c found\xe2\x80\x9d in the United States where an alien had once\nbeen arrested and deported or excluded and deported.7 Thus, under the revised\nversion o f \xc2\xa7 1326, if an alien who had previously been deported was found in a\nparticular locality he could properly be prosecuted in that locality because in\nthat context his presence there constituted a continuing offense that had begun\n\n4See A ct o f F e b ru a ry 5 , 1917, c h . 2 9 , \xc2\xa7 25; 39 S tat. 893.\n5T h is v e rsio n read as fo llo w s:\nT h at th e d istric t c o u rts o f th e U n ited S ta te s are h e re b y in v e sted w ith full ju risd ic tio n o f\nall c a u se s, c iv il an d c rim in a l, a risin g u n d e r an y o f th e p ro v isio n s o f th is A c t. T h a t it shall\nbe the d u ty o f the U n ited S ta te s d istric t a tto rn e y o f th e p ro p e r d istric t to p ro se cu te e v ery\nsu ch su it w h en b ro u g h t by th e U n ited S ta te s u n d e r th is A c t. S u ch p ro se cu tio n s o r su its\nm ay be in stitu te d in an y p lace in th e U n ited S tates at w h ic h th e v io la tio n m ay o c c u r o r at\nw hich th e p e rso n c h a rg e d w ith su ch v io la tio n m ay be fo u n d . . . .\n6T h e R ep o rt o f th e S en a te Ju d ic ia ry C o m m itte e o n the Im m ig ra tio n and N a tu ra liz a tio n S y ste m s\no f the U nited S tates u n d e rta k e n in p re p a ra tio n fo r th e 1952 re v isio n o f the im m ig ratio n law s read\nthe e a rlie r v e rsio n v ery n a rro w ly . ( \xe2\x80\x9c T h e sec tio n is ra re ly in v o k e d an d it is the g e n eral ru le that\nv io lations m u st be p ro se cu te d in th e ju d ic ia l d istric t in w h ic h th e o ffen se w as c o m m itte d .\xe2\x80\x9d ) S . R ept.\nN o. 1515, 8 1 st C o n g ., 2d s e s s ., at 6 5 0 (1 9 5 0 ).\n7T h e e a rlie r v ersio n o f \xc2\xa7 1326 (8 U .S .C .\xc2\xa7 180 (a) (1 9 4 0 e d .)) h ad p rovided:\nIf any alien h as b e en arre sted an d d e p o rte d in p u rsu a n ce o f la w . . . and if he e n te rs o r\nattem p ts to e n te r the U n ite d S tates. . . he sh all b e g u ilty o f a fe lo n y . . . .\nS ectio n 1326 n o w p ro v id es;\nA ny alien w h o \xe2\x80\x94\n(1) h a s b e en arre sted an d d e p o rte d o r e x c lu d e d an d d e p o rte d an d th e re a fte r\n(2 ) e n te rs, atte m p ts to e n te r, o r is at an y tim e fo u n d in , the U n ite d S ta te s. . .sh a ll be\ng u ilty o f a felo n y . . . .\n\nIll\n\n\x0cwhen he reentered. Although the difficulties inherent in proving where an alien\nhad entered the country so as to establish the proper venue for a prosecution\nunder \xc2\xa7 1325 would appear to be no less than those which spurred the revision\nof \xc2\xa7 1326,8 no comparable amendment to the former section was recommended;9\nthe alteration that was accom plished in amending \xc2\xa7 1329 to refer to that section\nas well, therefore, lacked the necessary foundation to have an equivalent effect.\nWe cannot reconcile the language o f \xc2\xa7 1329 with the requirement that\nprosecutions be undertaken in the district where the crime was committed; thus,\nwe recommend that no future prosecutions under \xc2\xa7 1325 be instituted except in\nsuch districts. We suggest the following language, which might serve as a\nsubstitute for that now included in the last sentence o f \xc2\xa7 9-73.110 o f the United\nStates A ttorneys\xe2\x80\x99 Manual:\nCases charging the defendant with eluding examination or inspection\nshould be prosecuted in the district where the inspection station to\nwhich the alien was to have reported on entering the United States is\nlocated.\nJohn M . H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n" D e p u ty A tto rn e y G e n e ra l P e y to n F o rd , te stify in g in 1951 d u rin g h e arin g s on e a rlie r v e rsio n s o f\nim m ig ratio n le g isla tio n u ltim a te ly a d o p te d th e fo llo w in g y e a r, stated that \xc2\xa7 2 76 o f the bill (\xc2\xa7 1326)\n. . . a d d s to e x istin g law by c re a tin g a c rim e w h ich w ill be c o m m itte d if a p re v io u sly\nd e p o rte d alie n is su b se q u e n tly fo u n d in th e U n ited S ta te s. T h is c h a n g e w o u ld ov e rc o m e\nth e in a d e q u ac ie s in e x istin g law w h ic h h a v e b e en o b se rv e d in th o se c ase s in w h ic h it is\nnot p o ssib le fo r th e Im m ig ra tio n a n d N a tu ra liz a tio n S e rv ic e to e sta b lis h the p la c e o f\nre e n try , an d h e n c e th e p ro p e r v e n u e , a ris in g in p ro se c u tio n s a g ain st a d e p o rte d alien\nu n d e r th e 1929 a ct. [Joint Hearings Before the Subcommittees o f the Committees on the\nJudiciary on S. 716, H .R . 2379, and H.R. 2816, 8 2 d C o n g ., 1st s e s s ., at 7 1 6 (1951)]\n\n9See n . 8 , supra. N o m e n tio n a t all w a s m a d e o f th e p ro v isio n s that u ltim a te ly b e ca m e \xc2\xa7\xc2\xa7 1325\nand 1329.\n\n112\n\n\x0c'