b'Fourth Amemdmnieinit Issues Raised by Chemical Weapons\n\nT he inspection regime to be created by the Convention on the Prohibition of the Development, Produc\xc2\xad\ntion, Stockpiling and Use of Chemical Weapons and on Their Destruction and by the proposed\nChemical W eapons Implementation Act, under which inspections o f facilities that produce certain\nchem icals would occur, absent exigent circumstances, only after the United States Government\nobtained the consent o f the owner o r operator o f the facility, an administrative warrant, or a crimi\xc2\xad\nnal search warrant, is consistent with the Fourth Amendment to the Constitution.\n\nSeptember 10, 1996\nStatem ent B e f o r e\n\nthe\n\nC o n s t it u t io n , F e d e r a l is m ,\n\nS u b c o m m it t e e\n\nand\n\nS en a te C o m m it t e e\n\non the\n\nP r o p e r t y R ig h t s\n\non the\n\no f th e\n\nJ u d ic ia r y\n\nI appreciate being given the opportunity to address this Subcommittee on the\nFourth Amendment Issues raised by both the Convention on the Prohibition of\nthe Development, Production, Stockpiling and Use of Chemical Weapons and on\nTheir Destruction (the \xe2\x80\x9c Convention\xe2\x80\x9d or \xe2\x80\x9c CWC\xe2\x80\x9d ) and the Chemical Weapons\nImplementation Act (the \xe2\x80\x9c Act\xe2\x80\x9d ) currently before Congress.\nThe Senate, with respect to the Convention, and the Congress, with respect to\nthe Act, now have the opportunity to contribute to the world-wide effort to elimi\xc2\xad\nnate the scourge of chemical weapons. Ratification of the Convention and passage\nof the Act also will represent positive steps towards the goal of reducing the threat\nposed by terrorists, a goal shared by the President and the Congress. Before I\ndiscuss specific aspects of the inspection regime established under the Convention\nand the Act, and the application of the Fourth Amendment thereto, I think it is\nimportant to remind the Subcommittee that the commitment to achieving a global\nban on chemical weapons, and to doing so within our constitutional framework,\nhas been a bipartisan one. Negotiations on the Convention commenced during\nthe Administration of President Reagan; the Convention was signed under Presi\xc2\xad\ndent Bush. President Clinton is fully pledged to ratification of the Convention\nand enactment of the implementing legislation.\nWe have reviewed this Convention and this Act and have concluded that the\ninspection regime they would create will not compromise the guarantees of the\nFourth Amendment. The right of the people to be free from unreasonable searches\nand seizures, as much as any specific provision of the Constitution, represents\na check on the power of government. At the same time, the Fourth Amendment\nstands as a solemn declaration of the right to conduct one\xe2\x80\x99s affairs in private.\nOver eighty years ago, the Supreme Court observed that the duty of giving force\nand effect to the Fourth Amendment \xe2\x80\x9c is obligatory upon all entrusted under our\nFederal system with the enforcement of the laws.\xe2\x80\x9d Weeks v. United States, 232\n\n310\n\n\x0cFourth Amendment Issues Raised by Chemical Weapons Inspection Regime\n\nU.S. 383, 392 (1914). This Administration, the Department of Justice, and I have\nan abiding conviction in this principle.\nBoth the Convention and the Act have been painstakingly drafted to put in\nplace an effective, verifiable ban on the development, acquisition, and use of\nchemical weapons. But none of their provisions in any way contemplates or per\xc2\xad\nmits conduct in contravention of the Fourth Amendment. Indeed, the inspection\nprovisions were drafted to be fully consonant with the dictates of search and sei\xc2\xad\nzure law.\nTo ensure compliance with the CWC prohibitions and requirements, the Con\xc2\xad\nvention and its implementing legislation would permit two types of verification\ninspections: routine (which will apply to three Schedules of chemicals) and chal\xc2\xad\nlenge. I will address each type of inspection in turn.\nRoutine Inspections. All facilities, both public and private, that are \xe2\x80\x9c declared\xe2\x80\x9d\nas producing scheduled chemicals as set forth under the CWC would be subject\nto routine inspections. The Technical Secretariat of the CWC\xe2\x80\x99s Organization for\nthe Prohibition of Chemical Weapons (\xe2\x80\x9c OPCW\xe2\x80\x9d ) would select such facilities for\ninspection based on neutral and objective criteria. The purpose of the routine in\xc2\xad\nspection is strictly limited: to determine the accuracy of declarations and to deter\xc2\xad\nmine whether activities are in accordance with CWC obligations. Other than those\nfacilities that produce the very restricted amounts of chemicals set forth under\nSchedule 1, no declared facility would be subject to routine inspection more than\ntwice a year.\n\nAs an initial matter, the Administration anticipates that most inspections \xe2\x80\x94 rou\xc2\xad\ntine and challenge \xe2\x80\x94 will be conducted with the consent of the owner or operator\nof the facility at issue. It is important to keep in mind that the chemical manufac\xc2\xad\nturing industry itself strongly supports the ratification and implementation of the\nCWC and its verification inspection scheme. Where available, the specifics of\nthese inspections will be dictated by facility agreements entered into between the\nU.S. Government and the OPCW. If consent were to be denied, however, absent\nexigent circumstances, the U.S. Government would seek an administrative warrant\nto inspect a specific facility.\nThis inspection scheme is fully consistent with Fourth Amendment principles.\nThe Fourth Amendment requires that \xe2\x80\x9c subject only to a few specifically estab\xc2\xad\nlished and well-delineated exceptions,\xe2\x80\x9d K atz v. United States, 389 U.S. 347, 357\n(1967), searches and seizures conducted in the absence of \xe2\x80\x9c a judicial warrant\nissued upon probable cause and particularly describing the items to be seized\xe2\x80\x9d\nare per se unreasonable. United States v. Place, 462 U.S. 696, 701 (1983). The\nFourth Amendment\xe2\x80\x99s warrant and probable cause requirements do not apply to\na particular search, however, when the party to be searched provides consent.\nSchneckloth v. Bustamonte, 412 U.S. 218 (1973). I thus would emphasize that\nthe warrant provisions under the CWC and its implementing legislation would\n311\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\napply only to the small minority of inspections as to which consent might be\nwithheld.\nThe Fourth Amendment\xe2\x80\x99s prohibition on unreasonable searches and seizures ap\xc2\xad\nplies to administrative searches of private commercial property. See See v. City\no f Seattle, 387 U.S. 541, 543-44 (1967). The expectation of privacy in commercial\npremises, however, is less than the similar expectation in one\xe2\x80\x99s home. See id.\nat 545-46. For purposes of an administrative search, \xe2\x80\x9c probable cause justifying\nthe issuance of a warrant may be based not only on specific evidence of an exist\xc2\xad\ning violation but also on a showing that \xe2\x80\x98reasonable legislative or administrative\nstandards for conducting an . . . inspection are satisfied with respect to a par\xc2\xad\nticular [establishment].\xe2\x80\x99 \xe2\x80\x9d M arshall v. B arlow \xe2\x80\x99s, Inc., 436 U.S. 307, 320 (1978)\n(footnote omitted) (quoting Cam ara v. M unicipal Court, 387 U.S. 523, 538\n(1967)). With respect to closely regulated industries, the Supreme Court has held\nthat \xe2\x80\x9c [t]his expectation is particularly attenuated.\xe2\x80\x9d N ew York v. Burger, 482 U.S.\n691,700(1987).\nIn part due to the extensive environmental, health, and safety issues inherent\nin its activities, the chemical manufacturing industry is already subject to pervasive\ngovernmental regulation. The Resource Conservation and Recovery Act, the Toxic\nSubstance Control Act, the Clean Air Act, and the Clean Water Act, to a greater\nor lesser degree, apply to most of the U.S. facilities that will be declared under\nthe CWC. Through ratification of the CWC and enactment of its implementing\nlegislation, the chemical manufacturing industry similarly would be subject to their\nregulatory scheme. To ensure compliance with its terms, the CWC and the Act\nprovide for \xe2\x80\x9c \xe2\x80\x98reasonable legislative or administrative standards for conducting\nan . . . inspection.\xe2\x80\x99 \xe2\x80\x9d Barlow\xe2\x80\x99s, 436 U.S. at 320 (quoting Camara v. Municipal\nCourt, 387 U.S. at 538). All facilities that would be subject to routine searches\nunder the CWC are part of this industry, and would be declared under the CWC\nand thus on notice that routine inspections would take place. For these facilities,\nthere would be sufficient basis for obtaining administrative search warrants to con\xc2\xad\nduct verification inspections where consent is denied. In those cases, a warrant\nwould be sought prior to initiation of an inspection, in the absence of exigent\ncircumstances.\nChallenge Inspections. The second type of inspections are the challenge inspec\xc2\xad\ntions. If a State Party makes a specific allegation of non-compliance, it may re\xc2\xad\nquest that the suspect facility be made subject to a challenge inspection, whether\nor not that facility was declared.\nDeclared facilities selected for a challenge inspection would be subject to in\xc2\xad\nspections in the same manner as provided under the CWC and the Act for routine\ninspections: pursuant to either consent or an administrative search warrant. Facili\xc2\xad\nties that are undeclared, however, likely would not fall within the closely regulated\nindustry of chemical manufacturing. Therefore, the government may not be able\nto obtain administrative search warrants to conduct such inspections. Instead, for\n312\n\n\x0cFourth Amendment Issues R aised by Chemical Weapons Inspection Regime\n\nthe small number of undeclared facilities where consent to inspect is denied, and\nwhere an administrative warrant is unobtainable, the Fourth Amendment, in the\nabsence of exigent circumstances, may require that a criminal search warrant be\nsecured. This warrant would be based on probable cause to believe that a violation\nof the Act or Convention has been or is being committed.\nIn certain instances, insufficient evidence may exist to establish criminal prob\xc2\xad\nable cause within the meaning of the Fourth Amendment. Thus, a search warrant\nwould be unobtainable. The CWC anticipates this possibility and would not force\na choice between compliance with its terms, and adherence to our constitutional\nprinciples. Rather, the Convention specifically allows the U.S. Government, in\ngranting access to facilities identified for challenge inspections, to \xe2\x80\x9c tak[e] into\naccount any constitutional obligations it may have with regard to proprietary rights\nor searches and seizures.\xe2\x80\x9d See Verification Annex of the CWC, pt. X, para. C.41.\nHence, in the rare event that the Fourth Amendment would pose a bar to a search\nof premises identified for a challenge inspection and the inspection could not go\nforward, the United States would remain in full compliance with its obligations\nunder the CWC.\nIssuance o f Warrants. Next, I would like to discuss specifically how warrants\nwould be issued under the Act. Once the Lead Agency representing the U.S. Gov\xc2\xad\nernment provides sufficient information to support a finding of administrative\nprobable cause, the Act directs the authorized official to issue promptly a search\nwarrant authorizing the requested routine or challenge inspection. To demonstrate\nprobable cause for an administrative warrant, the government must submit an affi\xc2\xad\ndavit stating that the CWC is in force for the United States; the facility to be\ninspected is subject to the specific type of inspection requested by the OPCW;\nthe procedures established under the CWC and the Act for initiating the inspection\nhave been complied with; and the Government will undertake to ensure that the\ninspection is conducted in a reasonable manner, not to exceed the scope or dura\xc2\xad\ntion set forth in, or authorized by, the CWC and the Act. In turn, the administrative\nwarrant must specify the type of inspection authorized and its purpose; the type\nof facility to be inspected and its location; the items, documents, and areas that\nmay be inspected; the commencement and concluding dates and times of the in\xc2\xad\nspection; and the identities of the representative of the Technical Secretariat of\nthe OPCW, and of the representatives of the Lead Agency.\nAdditional Protections. The inspection regime set forth in the Act contains a\nnumber of provisions designed to protect individual rights. Written notice must\nbe provided to the owner and to the operator, occupant, or agent (\xe2\x80\x9c operator\xe2\x80\x9d )\nin charge of the premises to be inspected. The notice must be submitted to the\nowner or operator as soon as possible after the U.S. Government receives it from\nthe Technical Secretariat. The notice must include all appropriate information sup\xc2\xad\nplied by the Technical Secretariat regarding the basis for the selection of the facil\xc2\xad\nity. For challenge inspections, this notice will specify the nature and circumstances\n313\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nof the alleged non-compliance, as well as all appropriate information serving as\nthe basis for the challenge.\nIn addition, the Act provides that if an owner or operator of the premises is\npresent, a member of the inspection team and the U.S. Government representative\nmust present appropriate credentials. Consistent with the time frames set forth\nin the CWC, each inspection must commence and be completed promptly. The\ntime, scope, and manner of the inspection must be reasonable. To the extent pos\xc2\xad\nsible consistent with the CWC, no inspection may extend to financial, sales and\nmarketing (other than shipment), pricing, personnel, research, or patent data, or\ndata maintained for compliance with environmental or occupational health and\nsafety regulations.\nUnder the CWC and the Act, facility agreements must be concluded for all\nSchedule 1 facilities, and for Schedule 2 facilities, unless the owner or operator\nof the premises and the Technical Secretariat concur that such an agreement is\nunnecessary. The owners or operators of Schedule 3 facilities and other chemical\nproduction facilities subject to inspection under the CWC have the option of re\xc2\xad\nquesting a facility agreement if they so desire. The Act provides that, if a request\nis made, the U.S. Government should negotiate and conclude a facility agreement.\nThe owner or operator shall have the right, to the extent practicable consistent\nwith the obligations of the United States under the CWC, to participate in the\npreparation for, and observe the negotiation of, this agreement.\nIf the U.S. Government has signed a facility agreement with the OPCW gov\xc2\xad\nerning a particular facility, any routine inspection of that facility must be con\xc2\xad\nducted in accordance with such agreement. Because these agreements will estab\xc2\xad\nlish detailed procedures that will control the conduct of inspections of affected\nfacilities, the agreements will encourage owners and operators to consent to an\ninspection and grant access to their facilities.\nIn my opinion the Chemical Weapons Convention and the Implementation Act\nreflect a supreme effort and an extraordinary accomplishment. A measurable step\nhas been taken to make the world a safer place in which to live and, at the same\ntime, the principles set forth in the Fourth Amendment of the U.S. Constitution\nhave been scrupulously observed. I would thus urge the Senate to consent to ratifi\xc2\xad\ncation of the Convention and Congressional passage of the Act.\nRICHARD L. SHIFFRIN\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n314\n\n\x0c'


b"August 31, 1978\n\n78-96\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nGeneral Accounting Office\xe2\x80\x94 Authority to Obtain\nInformation in Possession of Executive Branch\xe2\x80\x94\nConstitutional Law\xe2\x80\x94 President\xe2\x80\x94 Confidential\nCommunications\xe2\x80\x94 Appointments\n\n1 am responding to your deputy\xe2\x80\x99s memorandum o f July 27, 1978, asking for\nour advice with respect to two requests for information, each dated July 27,\n1978, received from an official in the General Accounting Office (GAO). One,\naddressed to your deputy, relates to appointments to the United States Metric\nBoard; the other, addressed to the Chairman of the Council of Economic\nAdvisers (CEA), relates to data and memoranda connected with last w inter\xe2\x80\x99s\ncoal strike. We note that the requests were not signed by the Comptroller\nGeneral but by a subordinate GAO official.\nWe conclude that the Com ptroller General lacks authority to obtain the\ninformation sought.\nI.\nThe request addressed to the Chairman of the CEA states that it is made in\nconnection with an evaluation o f the Adm inistration\xe2\x80\x99s estimate of unemploy\xc2\xad\nment due to last w inter\xe2\x80\x99s coal strike, which evaluation is being conducted by\nthe GAO at the request of the Subcommittee on Energy and Power of the House\nCommittee on Interstate and Foreign Commerce. The GAO asks specifically\nfor the following data:\nA description of the computer model developed by CEA to measure\nthe unemployment impact of the coal strike including (1) assumptions\nused, (2) variables used, and (3) any limitations of the model.\nMemoranda from CEA to the White House and/or DOE concerning\nthe computer model output on unemployment estimates and any\ncomments, suggestions, or recommendations by CEA as to which\nestimate to use for policy decisions.\n\n415\n\n\x0cThe request thus has three elements: A com puter model, memoranda to the\nWhite House, and memoranda from CEA to the Department of Energy. We\nhave been informed by the CEA that the computer model was developed for the\nfollowing purposes: Advice to the President and preparation of an affidavit by\nthe Chairman of the CEA to be used in connection with the Taft-Hartley\nproceedings during last w inter\xe2\x80\x99s coal strike. We also have been advised that the\nmemoranda from CEA to the W hite House and from CEA to the Secretary of\nEnergy also dealt with the preparation of the computer model and with advice\nto the President.\nOur analysis proceeds from what we believe are now well-accepted basic\npremises. First, the Com ptroller General is an officer of the Legislative branch.\nHe has long been so viewed by Congress and by the Executive branch. See,\ne .g ., Corwin, Tenure o f O ffice and the R em oval P ow er, 27 Colum. L. Rev.\n354, 396 (1927); W illoughby, The L egal Status and Functions o f the G eneral\nAccounting Office, 12-16 (1927). See also Reorganization Act of 1949, Ch.\n226., 63 Stat. 205; Reorganization Act o f 1945, Ch. 582., 59 Stat. 616. His\nfunctions derive from and must be based upon the performance of appropriate\ncongressional functions. Second, confidential Executive branch communica\xc2\xad\ntions are presumptively privileged. See, U nited States v. N ixon, 418 U.S. 683\n(1974); Nixon v. G .S .A ., 433 U.S. 425 (1977). We think it clear that this\nprivilege, in order to be meaningful, must extend beyond the President\npersonally to those who serve under and advise him. Thus, confidential\ncommunications between close Presidential advisers also fall within the\n\xe2\x80\x9c presumptive privilege\xe2\x80\x9d identified by the Supreme Court. See, Nixon, supra,\nat 682 ( \xe2\x80\x9c A P resident'and those who assist him must be free to explore\nalternatives in the process of shaping policies and making decisions . . . . \xe2\x80\x9d );\nNixon v. A dm inistrator, 433 U.S. 446, n. 10 (acknowledging the \xe2\x80\x9c legitimate\ngovernmental interest in the confidentiality o f communications between high\ngovernment officials, e .g ., those who advise the President\xe2\x80\x9d ); Nixon v.\nSampson, 389 F. Supp. 107, 150 n. 112 (D .D .C . 1975).\nThis conclusion is based on the same practical considerations that led the\nSupreme Court in G ravel v. U nited States, 408 U.S. 606, 617 (1972), to\nconclude that a Senator\xe2\x80\x99s legislative side is entitled to the protections afforded\nby the Speech and Debate Clause.\nThird, it must also be acknowledged that, unlike thfe privilege governing\nsensitive military, diplom atic, and foreign affairs matters, the presumptive\nprivilege for confidential com munications is not absolute. Congress has\nconstitutional functions which it must carry out, and where collisions occur\nbetween its exercise o f those functions and the Executive branch\xe2\x80\x99s need to\npreserve confidentiality, a careful weighing o f the respective interests must be\nundertaken. Nixon v. G .S .A ., supra; U nited States v. A .T . & T. C o ., 567\nF. (2d) 121 (D .C . Cir. 1977), Senate S elect C om m ittee on P residential\nCam paign A ctivities v. N ixon, 498 F. (2d) 725 (D.C. Cir. 1974). As stated in\nthe most recent decision by the D .C. Circuit Court o f Appeals, where genuine\nand substantial competing interests are raised there is \xe2\x80\x9c an implicit constitu\xc2\xad\ntional mandate to seek optimal accommodation through a realistic evaluation\n416\n\n\x0cof the needs of the conflicting branches in the particular fact situation.\xe2\x80\x9d U nited\nStates v. A .T. & T. C o ., 567 F. (2d) at 127.\nWith these basic considerations in mind the Com ptroller G eneral\xe2\x80\x99s subordi\xc2\xad\nnate\xe2\x80\x99s request can be analyzed. First, it would appear that the three sorts of\ndocuments requested fall within the presumptive constitutional privilege and,\ntherefore, a decision not to disclose the requested documents might be properly\nbased on the determination that disclosure here would interfere with necessary\nrelationships of confidentiality. For the reasons stated above, we think that such '\na decision can extend not only to the direct communications between the\nChairman o f CEA and the President but also to the communications between\nthe Chairman and the Secretary of Energy and to the computer workup done in\norder to assist the Chairman in providing advice to the President.\nBefore finally arriving at that conclusion, however, we think attention should\nbe given to the Com ptroller G eneral\xe2\x80\x99s subordinate\xe2\x80\x99s reasons for seeking the\nmaterial and the authority upon which that request is based.\nIn response to an inquiry from your deputy, the General Counsel of the\nGeneral Accounting Office stated in a letter dated August 11, 1978, that G A O \xe2\x80\x99s\n\xe2\x80\x9c right to access to the records\xe2\x80\x9d in question stems from 31 U .S.C . \xc2\xa7 54 (1976).\nThis statute, which is G A O \xe2\x80\x99s basic provision with respect to its authority to\nseek documents, derives from \xc2\xa7 313 of the Budget and Accounting Act of\n1921, Ch. 18, 42 Stat. 26, and reads as follows:\n\xc2\xa7 313. All departments and establishments shall furnish to the\nComptroller General such information regarding the powers, duties,\nactivities, organization, financial transactions, and methods o f busi\xc2\xad\nness o f their respective offices as he may from time to time require of\nthem; and the Comptroller General, or any o f his assistants or\nemployees, when duly authorized by him, shall, for the purpose of\nsecuring such information, have access to and the right to examine any\nbooks, documents, papers, or records of any such department or\nestablishment. The authority contained in this section shall not be\napplicable to expenditures made under the provisions o f section 291\nof the Revised Statutes [31 U .S.C . \xc2\xa7 107 (1976)].\nAs a matter of normal statutory construction we doubt whether this provision\nprovides a foundation for the request made in this instance. By its terms, \xc2\xa7 313\ndirects \xe2\x80\x9c all departments and establishm ents\xe2\x80\x9d 1 to comply with requests from the\nComptroller General for information concerning the \xe2\x80\x9c powers, duties, activi\xc2\xad\nties, organization, financial transactions and methods of business of the\nrespective offices.\xe2\x80\x9d Because the information in question here plainly does not\nrelate to the powers, duties, organization, financial transactions and methods of\nbusiness o f the CEA , this provision can only apply if the term \xe2\x80\x9c activities\xe2\x80\x9d is\ngiven its very broadest meaning.\n\n'In view o f the broad definition o f the term \xe2\x80\x9c departm ents and establishm ents\xe2\x80\x9d in \xc2\xa7 2 o f the\nBudget and Accounting Act (31 U .S .C . \xc2\xa7 2 (1976)), we assum e arguendo that the term includes the\nExecutive Office o f the President, in which the CEA is located, and the W hite House Office.\n\n417\n\n\x0cThe very breadth o f that term suggests the application of the ajusdem generis\nrule o f statutory construction to ascertain its import. Since the other terms o f the\nsection refer to organizational and fiscal m atters, we can properly regard the\nwork \xe2\x80\x9c activities\xe2\x80\x9d as relating to activities o f that nature. That view is supported\nby the fact that \xc2\xa7 313 was enacted at a time when the Comptroller General\xe2\x80\x99s\nfunctions were limited to those areas. The information sought here does not\nrelate to fiscal or organizational matters; we therefore question whether the\n' request can be based directly on \xc2\xa7 313.\nAlthough the most recent letter from the General Counsel of GAO does not\nexplicitly so state, the Com ptroller General him self has heretofore taken the\nposition that \xc2\xa7 313 does not constitute an independent source of investigatory\npower. Instead, that section has been cited as an aid in carrying out powers and\nresponsibilities elsewhere conferred on the Comptroller General. In other\nwords, if some statute directs the Com ptroller General to investigate, review or\nevaluate, \xc2\xa7 313 has the function of enabling him to obtain information from the\nExecutive branch. In the words o f Com ptroller General Staats, \xc2\xa7 313 is of a\n\xe2\x80\x9c supportive\xe2\x80\x9d nature.2\nWhile we have not been directed by the General Counsel to any other\napplicable provision, \xc2\xa7 204(a) of the Legislative Reorganization Act of 1970,\nas amended, is the only statute o f which we are aware that could serve as a basis\nfor this request. That section directs the Comptroller General \xe2\x80\x9c to review and\nevaluate the results o f government programs and activities carried on under\nexisting law s.\xe2\x80\x9d Pub. L. 93-344, 88 Stat. 326 (1974). W hen the section was\noriginally enacted in 1970 it was limited to fiscal and budgetary matters. Pub.\nL. 91-510, 84 Stat. 1140 (1970), H. Rept. 91-1215, p. 80. While certain\namendments in 1974 made only minor changes in the wording of \xc2\xa7 204(a), the\nrelevant conference report discloses a congressional purpose to expand its\nscope so as to enable Congress to utilize the facilities o f GAO in connection\nwith its legislative oversight functions.3\n2M em orandum subm itted by the C om ptroller G eneral in Defense Production Act Am endm ents,\nHearings before the Subcom m ittee on Production and Stabilization o f the Com m ittee on Banking,\nHousing and Urban A ffairs, U .S . Senate, 92d C ong., 2d sess., on S. 669 and 1901, pp. 51, 53. See\nalso in this connection M organ, T he General A ccounting O ffice, 51 North Carolina Law Review\n1279, 1352-1353 (1973).\n3The pertinent portion o f the Conference Report on the Congressional Budget Act o f 1974, S.\nRept. 93-924, p. 72, reads:\nSECTION 702. REV IEW A N D EV A LU A TIO N BY CO M PTR O LL ER GENERAL.\nThe Senate am endm ent expanded the review and evaluation functions and duties of\nthe C om ptroller G eneral, including assistance to com m ittees and M em bers.\nThe conference substitute is a revision o f the Senate provision. It am ends section\n204 o f the 1970 L egislative Reorganization Act to expand G A O assistance to\nC ongress. As am ended, section 204(a) provides that the C om ptroller Genera] shall\nevaluate Governm ent program s at his own initiative, when ordered by either House, or\nat the request o f a congressional com m ittee. Section 204(b) provides that upon request,\nthe C om ptroller G eneral shall assist com m ittees in developing statem ents o f legislative\nobjectives and m ethods for assessing program perform ance. The m anagers consider\noversight o f executive perform ance to be am ong the principal functions o f congres\xc2\xad\nsional com m ittees and they recognize that the usefulness o f program evaluation can be\n(Continued)\n\n418\n\n\x0cThe request for information concerning the computer model may come\nwithin the scope of \xc2\xa7 204(a) if it can fairly be said to relate to some legislative\noversight o f the manner in which programs and activities o f the CEA are carried\non under existing law. The only substantive piece of legislation involved in the\nChairman\xe2\x80\x99s activities here was the preparation of an affidavit under the\nTaft-Hartley Act. It should first be noted that this activity is not among the\nstatutory functions imposed on CEA under \xc2\xa7 4(c) of the Employment Act of\n1946. Ch. 33, 60 Stat. 23, 15 U .S.C . \xc2\xa7 1023(c) (1976). To the contrary, when\nthe Chairman of CEA prepared and executed the affidavit, he was not\nadministering a program subject to legislative oversight but was acting in his\ncapacity as an adviser and assistant to the President.\nAssuming arguendo that the preparation and execution of a Taft-Hartley\naffidavit by the Chairman of the CEA might come within the scope of \xc2\xa7 204(a)\nin connection with the exercise of legislative oversight of the manner in which\nthe Taft-Hartley Act is administered, the fact is that it appears from the request\nthat the House Subcommittee on Energy and Power is not engaged in legislative\noversight with respect to Taft-Hartley and does not appear to have jurisdiction\nover that program or activity. Hence, \xc2\xa7 204(a) would not appear to constitute an\nauthority for the review and evaluation by the Comptroller General of the\nmanner in which the Taft-Hartley Act is administered.\nWe presume, although it is not entirely clear, that it might be claimed that\nthis investigation is addressed to the more general question whether there is in\nexistence adequate legislation to avert energy shortage crises in the future.4 If\nthis is GAO\xe2\x80\x99s interest, it is not clear to us how the information requested should\nprove relevant to that inquiry. We believe that in order to make the kind of\n\xe2\x80\x9c accommodation\xe2\x80\x9d suggested by the District o f Columbia Circuit Court of\nAppeals, you would want to know a good deal more about the reasons why this\nparticular information is being requested. Ordinarily, the examination o f a\nsingle historical incident would not serve as a very useful aid in evaluating the\nneed for legislation. M oreover, to the extent that the examination o f a particular\nepisode is deemed important, we would think that the relevant factual details\ncould be gathered without requiring the disclosure o f this kind o f confidential\ninformation.\nIn summary, it appears to us that there is a substantial basis upon which a\ndecision might be made not to share this information with the Comptroller\nGeneral\xe2\x80\x99s staff. From the information given us by GAO we cannot readily\nascertain the authority underlying the request. Nor can we assess the relevance\nor importance of the information sought. We suspect, however, that a more\ndetailed factual inquiry would likely demonstrate that the interest in preserving\n(Continued)\nenhanced by the clear expression of legislative objectives and the em ploym ent of\nm odem analytic m ethods. The m anagers further believe that statem ents of intent can\nbe most appropriately developed by the com m ittee o f jurisdiction. M em bers must be\nprovided upon request with all related inform ation after its release by the com m ittee for\nwhich it was com piled.\n\xe2\x80\x9cThere is a suggestion to this effect in the letter to Chairm an Schultze dated July 27. 1978.\n\n419\n\n\x0cthe confidentiality o f Executive branch com m unications would exceed the\ninterest GAO might identify in support o f its request.\nII.\nThe second request, addressed to your deputy, asks for detailed information\nas to whether recent Presidential appointments to the U .S. Metric Board\ncomplied with the specific qualification requirements of 15 U .S.C . \xc2\xa7 205d\n(1976). This request, also signed by a subordinate GAO official, was made at\nthe request of an individual m ember o f Congress.\nIt is our view that compliance with this request is not required. Since the\ninformation sought does not involve fiscal matters, the Comptroller General\xe2\x80\x99s\nauthority must be based on \xc2\xa7 204(a). See supra. A request for information\nunder that section, however, presupposes action by either House of Congress or\nby a committee having jurisdiction over the program or activity under review or\nevaluation; a request o f a single m em ber does not authorize the Comptroller\nGeneral to proceed.5\nBeyond that, the request for information may well be outside the jurisdiction\nof the Com ptroller General as an arm of Congress. Under the Constitution,\nArticle II, \xc2\xa7 2, the pow er o f appointment of the members o f the Board is vested\nin the President and the Senate, and not in Congress as a whole. Hence, it is the\nresponsibility o f the President and Senate to determine whether there has been\ncompliance with the qualification requirements of. 15 U .S.C . \xc2\xa7 205(d) (1976).\nAs James Madison said during the First Session o f the First Congress during the\nGreat Debate concerning the removal power o f the President:\nThe Legislature creates the O ffice, defines the powers, limits its\nduration and annexes a compensation. This done the Legislative\npower ceases.6\nM oreover, the appointment o f officers o f the United States by the President\nby and with the advice o f the Senate does not constitute a Government program\nor activity carried out under existing law as required by \xc2\xa7 204(a).\nFinally, it should be noted that there is considerable question whether\nCongress has the power under the Appointm ents Clause significantly to restrict\nthe President\xe2\x80\x99s discretion in fulfilling his duty to nominate officers o f the\nUnited States. See, B uckley v. Valeo, 424 U .S. 1 (1976). The process whereby\nthe President is restricted in naming members to the Board would raise serious\nquestions if the President were therefore deprived o f discretion in performing\nhis nominating function. 40 Op. A. G. 551 (1947); 13 Op. A. G. 516, 525\n\n\xe2\x80\x99 Section 204(a), it is true, enables the C om ptroller General to proceed on his own initiative.\nH ow ever, it cannot be anticipated that the C om ptroller G eneral will take that step after having\nreceived the request o f a single C ongressm an, since such a step could have the effect o f\njeopardizing his \xe2\x80\x9c role as an independent nonpolitical agency o f the legislative b ran ch .\xe2\x80\x9d See also\nM ansfield, The C om ptroller G eneral, 258; M organ, The G eneral Accounting O ffice, supra, at\n1299-1300.\n6A N N A L S o f C o n g r e s s , First Congress, First Session, C ol. 582.\n\n420\n\n\x0c(1871); c f , M yers v. U nited States, 272 U .S. 52, 121 (1926). We would have\nan even greater concern if it were concluded that those who submit names of\nqualified applicants could not be assured that the names remain confidential.\nThe President might well conclude that in order adequately to fulfill his\nnominating responsibility he must have candid and straightforward advice from\nthose who submit the names. If the President were so to conclude we think his\ndecision not to disclose would be justified both on the ground that confidentiality\nis essential to the Appointments Clause process and on a more generalized\npresumptive constitutional privilege.\nJohn M . Harm on\n\nA ssistant A ttorney G eneral\nOffice o f L egal C ounsel\n\n421\n\n\x0c"


b"May 5, 1978\n\n78-22\n\nMEMORANDUM OPINION FOR THE\nASSISTANT TO THE PRESIDENT FOR\nDOMESTIC AFFAIRS AND POLICY\nConstitutional Law\xe2\x80\x94 First Amendment\xe2\x80\x94\nFlexibility in Federal Employee Work\nSchedules\xe2\x80\x94 Religious Observance\n\nThis responds to your inquiry concerning the constitutionality of H. R.\n12040. The question is whether the bill would violate the Establishment Clause\nof the First Amendment. W ith the several important caveats discussed below,\nind with the few revisions which we have recom mended, we think that the bill\nwould probably not be held unconstitutional.\nH.\nR. 12040, one o f several similar bills, instructs the Civil Service\nCommission to promulgate regulations allowing Federal employees to take\ntime off to participate in religious observances. The employee must make up\nthe time used by working an equal number o f hours o f overtime. The bill also\ncontemplates that agencies may grant exceptions from the tim e-off requirement\nwhere \xe2\x80\x9c necessary to efficiently carry out the mission of the agency.\xe2\x80\x9d Because\nthe bill has been recently introduced, there is no meaningful legislative history\nas yet, nor is it likely that any substantial history will be forthcoming.\nTherefore, in evaluating whether the bill is constitutionally sound, we have\nfound it necessary to rely on representations made by the sponsor as to its\npurpose and scope.\nLegislation touching upon matters o f religion raises difficult questions under\nthe First Amendment: \xe2\x80\x9c Congress shall make no law respecting an establish\xc2\xad\nment of religion, or prohibiting the free exercise thereof.\xe2\x80\x9d The Supreme Court,\nespecially within the past decade, has been confronted with a variety o f cases in\nwhich it has been called upon to give content to these clauses. As a result, their\ngeneral contours are now rather firmly settled. Laws challenged as violative of\nthe Establishment Clause must satisfy a three-part test: (1) there must be a\n\xe2\x80\x9c clearly secular legislative purpose\xe2\x80\x9d ; (2) there must be \xe2\x80\x9c a primary effect that\nneither advances nor inhibits religion\xe2\x80\x9d ; and (3) the enactment must \xe2\x80\x9c avoid\nexcessive governm ent entanglem ent with religion.\xe2\x80\x9d See, e .g ., Committee fo r\nPublic Education & Religious Liberty v. N yquist, 413 U .S. 756, 773 (1973).\n92\n\n\x0cAlthough, as the Court often noted, the line between the constitutional\nconsiderations underlying the Establishment Clause and the purposes o f the\nFree Exercise Clause is not always easy to identify, their central theme is that\nGovernment must maintain a relationship of \xe2\x80\x9c neutrality\xe2\x80\x9d both toward particu\xc2\xad\nlar religious sects and toward religion generally. See, e.g ., Gillette v. United\nStates, 401 U .S. 437, 449 (1971). In other words, the Government may neither\npromote religion nor discriminate against it.\nAlthough the general outlines are now settled, the legal questions have not\nbecome easier to resolve, and what the Court may hold concerning a particular\nlegislative proposal is not fully predictable. The principles are understood, but\ntheir application\xe2\x80\x94 given the variety of situations in which these questions\narise\xe2\x80\x94 remains uncertain.\nBefore turning to a consideration of the application of those general\nprinciples to H. R. 12040, it is useful to review briefly a line o f recent cases\ninterpreting the provisions o f Title VII of the 1964 Civil Rights Act, which\nmandates nondiscrimination by public and private employers on religious\ngrounds. 42 U .S.C . \xc2\xa7\xc2\xa7 2000e\xe2\x80\x94 2(a)(1), 2000e(j). These provisions instruct\nemployers to make reasonable efforts to accommodate the religious needs of\ntheir employees. On three separate occasions in recent years private employers\nchallenging such provisions under Establishment Clause grounds have had their\ncases before the Supreme Court. On the first two occasions the lower court\ndecisions were affirmed without opinion by an equally divided Court. See,\nDewey v. Reynolds M etals C o., 429 F. (2d) 324 (6th Cir. 1970), a ffd , 402\nU.S. 689 (1971); Parker Seal Co. v. Cummins, 516 F. (2d) 544 (6th Cir.\n1975), a ff d, 429 U .S. 65 (1976). This was followed last term by a third case in\nwhich the constitutional issue was once again presented: the Court, over the\ndissents of Justices M arshall and Brennan, decided the case on nonconstitutional\ngrounds thereby avoiding again First Amendment complexities. Trans World\nAirlines, Inc. v. Hardison, 432 U.S. 63 (1977).\nIn each o f the above cases the Solicitor General submitted an amicus brief\ndefending the constitutionality o f the relevant title VII provisions. His\nargument supports the constitutionality o f H. R. 12040, assuming it can be read\nin the same manner as we read the similar language in title VII.\nAs stated above, in addressing the three-part Establishment Clause analysis,\nwe have found it necessary to rely on representations made by the bill\xe2\x80\x99s\nsponsor. The first representation is that the language of the bill as it will be\nintroduced on the House floor will carry important modifications. We under\xc2\xad\nstand that the critical provision o f the bill will read as follows:\nNot later than thirty days after the date o f the enactment of this\nsection, the Civil Service Commission shall prescribe regulations\nproviding for work schedules under which an employee whose\npersonal religious beliefs require the abstention from work during\ncertain periods o f time, may elect to engage in overtime work fo r time\nlost in meeting such obligations. . . . [Emphasis added.]\nThe underlined language stresses that the bill is not intended to favor any\nparticular religious sects or denominations but is aimed at accommodating\n93\n\n\x0cstrongly held personal convictions even though they may not rest on the dogma\nof any organized religion or faith. Its focus is placed properly on the\nindividual\xe2\x80\x99s personal evaluation rather than upon the dictates o f any theistic\nbody.\nIt was precisely this focus that became the basis on which the Supreme Court\nupheld the constitutionality\xe2\x80\x94 or found it unnecessary to question the\nconstitutionality\xe2\x80\x94 of the conscientious-objector laws. See, United States v.\nSeeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970);\nGillette v. United States, 401 U.S. 437 (19 7 1). We also think that it was in\nlarge measure the breadth and neutrality o f the similar provisions o f title Vll\nwhich allowed the Sixth Circuit to conclude that they were constitutionally\nsound, Cummins v. Parker Seal C o ., 516 F. (2d), at 553, 557, and which\nassisted the Supreme Court in avoiding the constitutional issue last term in\nHardison, supra, at 81.\nOur comments about the precise language of the bill must be read in\nconjunction with two other representations which we understand have been\nmade. First, we understand that the sponsor o f the bill does not regard as one\nof its purposes granting any form of \xe2\x80\x9c preference\xe2\x80\x9d to religion or to religious\ninstitutions. Second, we understand that the bill is premised upon considera\xc2\xad\ntions which the Court has heretofore regarded as neutral and secular, including\na desire to promote the good will and esprit de corps that flow from\ngovernmental policies which accommodate and are sensitive to the personal\nconcerns o f Governm ent employees. A governmental policy recognizing the\n\xe2\x80\x9c principle of supremacy of conscience,\xe2\x80\x9d as this one does, would probably be\nheld to have an adequate nonsectarian foundation. Gillette v. United States,\n401 U .S ., at 453. It will be helpful in eventual judicial review o f the bill to have\nan expression on the record of these underlying sentiments.\nA further word is necessary with respect to the first representation eschewing\nthe notion that the bill is designed to fulfill some affirmative duty, thought by\nsome to arise from the Free Exercise Clause, requiring the Government to\n\xe2\x80\x9c prefer\xe2\x80\x9d or promote religion. We believe that there is no basis for disagreeing\nwith the statement in the dissenting opinion o f Judge Celebreeze in one o f the\ntitle VII cases that i f the purpose o f a law is to provide \xe2\x80\x9c impartial\ngovernmental assistance to all religions,\xe2\x80\x9d it must surely be an unconstitutional\nintrusion on the separation o f church and state. Cummins v. Parker Seal C o.,\n516 F. (2d), at 557. See also, M cCollum v. Bd. o f Education, 333 U.S. 203,\n211-12 (1948); Zorach v. C lauson, 343 U .S. 306, 315 (1952); Gillette v.\nUnited States, 401 U .S ., at 450. No such contention will be proffered in\nsupport o f this bill. Instead it will be viewed as a means of accommodating\nimportant interests in a neutral and nondiscriminatory manner.\nFinally, we understand that supporters o f H. R. 12040 have considered the\nquestion o f appropriate implementation o f the Civil Service Commission. To\navoid an excessive entanglem ent, it is anticipated that the Commission will not\nplace itself in the posture o f reviewing and scrutinizing such questions as\nwhether the em ployee\xe2\x80\x99s religious beliefs do, in fact, require absence from\nwork. It will not be asked to exam ine the theology o f any religious sect or\n94\n\n\x0cinstitution. Rather, its focus, as in the conscientious-objector cases, will be on\nthe reliability of the em ployee\xe2\x80\x99s assertions. See, e.g., United States v.\nSeeger, 380 U .S ., at 185. There should, then, be no need for the sort of\n\xe2\x80\x9c discriminating and complicated . . . basis of classification\xe2\x80\x9d that would raise\nserious questions about the extent of governmental entanglement with religion.1\nSee, Walz v. Tax Commission o f the City o f New York, 397 U .S. 664, 698-99\n(1970) (Harlan, J.); Gillette v. United States, 401 U .S ., at 457.\nWith these several representations in mind, and with the language changes\nwe have discussed, we believe that a case can be made for the constitutionality\nof the bill under the Establishment Clause. It is supported by valid, secular\npurposes; its primary effects are not to aid religion, and any such benefits can\nfairly be characterized as \xe2\x80\x9c incidental\xe2\x80\x9d (see, Cummins v. Parker Sea! C o., 516\nF. (2d), at 553; Committee fo r Public Education v. Nyquist, 413 U .S ., at\n771-72); and in its operation it will not require the son of continuing and\ndetailed scrutiny that would impermissibly entangle church and state.\nWe may add that we have discussed our views with the General Counsel of\nthe Civil Service Commission and he has asked that we advise you that he\nconcurs.\nLarry A . H am m ond\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n'W h e th e r a statu te so b ro a d ly c o n c e iv e d , a n d so s u sc e p tib le to c la im s o f a b u se , is d e sirab le as a\nm atter o f p o licy is a q u e stio n w e d o not a d d re ss. W e h ave not c o n sid e re d the q u e stio n o f\ndesirab ility o f th is bill in re g a rd s to e ith e r title V II as p re sen tly c o n stitu te d o r as it m ight be\nam en d ed to a cc o m m o d a te fu rth e r th e re lig io u s n e ed s o f g o v e rn m e n ta l e m p lo y e es.\n\n95\n\n\x0c"


b'EPA Acceptance and Use of Donations\nUnder the Clean Air Act\nSection 104(b)(4) of the Clean Air Act does not permit the EPA to accept and use donations of money.\nSection 104(b)(4) of the Clean Air Act permits the EPA to accept items of personal\nproperty (other than money), such as an automobile, so long as the property in question would be received for use directly in the anti-pollution research authorized by\nsection 104.\nDecember 8, 2009\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nENVIRONMENTAL PROTECTION AGENCY\nSection 104(b)(4) of the Clean Air Act authorizes the Administrator of\nthe Environmental Protection Agency (\xe2\x80\x9cEPA\xe2\x80\x9d) to \xe2\x80\x9cacquire\xe2\x80\x9d various kinds\nof property by various means, including \xe2\x80\x9cdonation,\xe2\x80\x9d to further research\nrelating to the \xe2\x80\x9cprevention and control of air pollution resulting from the\ncombustion of fuels.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 7404(a), (b)(4) (2006). You have asked\nwhether section 104(b)(4) permits the EPA to accept and use donations of\nmoney. For the reasons discussed below in Part I, we conclude that it does\nnot. You have also asked whether section 104(b)(4) permits the EPA to\naccept items of personal property (other than money), such as an automobile. For the reasons given below in Part II, we conclude that it does, so\nlong as the property in question would be received for use directly in the\nanti-pollution research authorized by section 104.\nI.\nSection 104 of the Clean Air Act is titled \xe2\x80\x9cResearch relating to fuels\nand vehicles.\xe2\x80\x9d It provides, in relevant part, as follows:\n(a) Research programs; grants; contracts; pilot and demonstration\nplants; byproducts research\nThe Administrator shall give special emphasis to research and development into new and improved methods, having industry-wide\napplication, for the prevention and control of air pollution resulting\n\n389\n\n\x0c33 Op. O.L.C. 389 (2009)\n\nfrom the combustion of fuels. In furtherance of such research and\ndevelopment he shall\xe2\x80\x94\n(1) conduct and accelerate research programs directed toward\ndevelopment of improved, cost-effective techniques for\xe2\x80\x94\n(A) control of combustion byproducts of fuels,\n(B) removal of potential air pollutants from fuels prior to\ncombustion,\n(C) control of emissions from the evaporation of fuels,\n(D) improving the efficiency of fuels combustion so as to decrease atmospheric emissions, and\n(E) producing synthetic or new fuels which, when used, result in decreased atmospheric emissions.\n(2) provide for Federal grants to public or nonprofit agencies,\ninstitutions, and organizations and to individuals, and contracts\nwith public or private agencies, institutions, or persons . . . .\n(b) Powers of Administrator in establishing research and development programs\nIn carrying out the provisions of this section, the Administrator\nmay\xe2\x80\x94\n(1) conduct and accelerate research and development of costeffective instrumentation techniques to facilitate determination of\nquantity and quality of air pollutant emissions, including, but not\nlimited to, automotive emissions;\n(2) utilize, on a reimbursable basis, the facilities of existing\nFederal scientific laboratories;\n(3) establish and operate necessary facilities and test sites at\nwhich to carry on the research, testing, development, and programming necessary to effectuate the purposes of this section;\n(4) acquire secret processes, technical data, inventions, patent\napplications, patents, licenses, and an interest in lands, plants, and\nfacilities, and other property or rights by purchase, license, lease,\nor donation; and\n(5) cause on-site inspections to be made of promising domestic\nand foreign projects, and cooperate and participate in their devel-\n\n390\n\n\x0cEPA Acceptance and Use of Donations Under the Clean Air Act\n\nopment in instances in which the purposes of the chapter will be\nserved thereby.\n(c) Clean alternative fuels\nThe Administrator shall conduct a research program to identify,\ncharacterize, and predict air emissions related to the production, distribution, storage, and use of clean alternative fuels to determine the\nrisks and benefits to human health and the environment relative to\nthose from using conventional gasoline and diesel fuels. The Administrator shall consult with other Federal agencies to ensure coordination and to avoid duplication of activities authorized under this subsection.\n42 U.S.C. \xc2\xa7 7404 (emphasis added).\nIn your view, \xe2\x80\x9cthe word \xe2\x80\x98property\xe2\x80\x99 when included in a statute that authorizes agencies to accept donations, includes funds, money, or cash\nunless the statute excludes this form of property from the reach of its gift\nacceptance authority.\xe2\x80\x9d Letter for Steven G. Bradbury, Principal Deputy\nAssistant Attorney General, Office of Legal Counsel, from Patricia K.\nHirsch, Acting General Counsel, Environmental Protection Agency at 2\n(Dec. 15, 2008) (\xe2\x80\x9cEPA Letter\xe2\x80\x9d). You note that this Office has read the\nphrase \xe2\x80\x9cother property\xe2\x80\x9d to include money in at least one instance. Id. at 4\n(citing Acceptance of Gifts to Be Used in the White House, the Official\nResidence of the Vice President, or the Offices of the President and Vice\nPresident, 2 Op. O.L.C. 349, 352 (1977) (\xe2\x80\x9cAcceptance of Gifts to Be Used\nin the White House\xe2\x80\x9d)). Thus, you believe the phrase \xe2\x80\x9cother property\xe2\x80\x9d in\nsection 104(b)(4) should be understood to include money.\nIn June 2008, the Office of Management and Budget (\xe2\x80\x9cOMB\xe2\x80\x9d) conveyed to your office a contrary position, based in part on what it contended would be the incongruous consequences that including money within\nthe scope of section 104(b)(4) would have in light of the requirements of\nthe Miscellaneous Receipts Act (\xe2\x80\x9cMRA\xe2\x80\x9d), 31 U.S.C. \xc2\xa7 3302(b) (2006). In\nresponse to OMB\xe2\x80\x99s contentions about the MRA, you argue that section\n104(b)(4) should be read as establishing an exception to the MRA. EPA\nLetter at 4\xe2\x80\x938.\nWe believe money is not included in the \xe2\x80\x9cother property\xe2\x80\x9d section\n104(b)(4) authorizes the EPA to acquire, but in reaching this judgment\nwe do not believe it is necessary to address the MRA. Instead, we reach\n391\n\n\x0c33 Op. O.L.C. 389 (2009)\n\nthis conclusion simply by examining the language of section 104(b)(4).\nWhen the phrase \xe2\x80\x9cother property\xe2\x80\x9d in section 104(b)(4) is considered in\ncontext, we believe it is clear that Congress did not intend to include\nmoney among the forms of property that the EPA can acquire for use in\nthe research program authorized by section 104. While an administrative\nagency is generally entitled to deference in its interpretation of an ambiguous term in a statute it is charged with administering, \xe2\x80\x9cthe question\nwhether a statute is ambiguous arises after, not before a court applies\ntraditional canons of interpretation\xe2\x80\x94the most important here being the\ncontext in which the word appears.\xe2\x80\x9d OfficeMax, Inc. v. United States, 428\nF.3d 583, 592 (6th Cir. 2005). As the Supreme Court has explained,\n\xe2\x80\x9c[a]mbiguity is a creature not of definitional possibilities but of statutory\ncontext.\xe2\x80\x9d Brown v. Gardner, 513 U.S. 115, 118 (1994); see Chevron\nUSA, Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 n.9 (1984)\n(in determining whether congressional intent is clear courts must \xe2\x80\x9cemploy[] traditional tools of statutory construction\xe2\x80\x9d); Cal. Indep. Operator\nCorp. v. FERC, 372 F.3d 395, 400\xe2\x80\x9301 (D.C. Cir. 2004) (rejecting agency\xe2\x80\x99s interpretation, and concluding that \xe2\x80\x9cpractice\xe2\x80\x9d in section 206 of the\nFederal Power Act is not ambiguous when considered in context). Here,\nwe think applying traditional tools of statutory construction demonstrates\nthat \xe2\x80\x9cother property\xe2\x80\x9d in section 104(b)(4) is not ambiguous.\nFirst, Congress has passed many statutes that authorize an agency to\nreceive gifts of \xe2\x80\x9cmoney\xe2\x80\x9d in addition to authorizing the agency to receive\ngifts of \xe2\x80\x9cproperty.\xe2\x80\x9d See, e.g., 10 U.S.C. \xc2\xa7 2601(a) (2006) (authorizing the\nSecretary of Defense or Homeland Security to \xe2\x80\x9caccept, hold, administer,\nand spend any gift, devise, or bequest of real property, personal property,\nor money\xe2\x80\x9d); 22 U.S.C. \xc2\xa7 2395(d) (2006) (authorizing the President to\naccept \xe2\x80\x9cgifts, devises, bequests, grants, etc.\xe2\x80\x9d of \xe2\x80\x9cmoney, funds, property,\nand services of any kind\xe2\x80\x9d); 22 U.S.C. \xc2\xa7 2455(f) (2006) (authorizing the\nPresident to accept and use contributions of \xe2\x80\x9cfunds, property, and services\xe2\x80\x9d); 22 U.S.C. \xc2\xa7 5422(c)(1) (2006) (authorizing the Secretary of Labor\nto accept \xe2\x80\x9cany money or property, real, personal, or mixed, tangible or\nintangible, received by gift, devise, bequest, or otherwise\xe2\x80\x9d); 22 U.S.C.\n\xc2\xa7 2056(b) (2006) (authorizing the Secretary of State to \xe2\x80\x9caccept from\npublic and private sources money and property\xe2\x80\x9d as \xe2\x80\x9cgifts, bequests, and\ndevises\xe2\x80\x9d); 29 U.S.C. \xc2\xa7 568 (2006) (authorizing the Secretary of Labor to\naccept and employ \xe2\x80\x9cany money or property, real, personal, or mixed,\n392\n\n\x0cEPA Acceptance and Use of Donations Under the Clean Air Act\n\ntangible or intangible, received by gift, devise, bequest, or otherwise\xe2\x80\x9d); 29\nU.S.C. \xc2\xa7 2939(b) (2006) (same); 42 U.S.C. \xc2\xa7 2476b(a) (2006) (authorizing the Administrator of the National Aeronautics and Space Administration to \xe2\x80\x9caccept gifts and donations of services, money, and real, personal,\ntangible, and intangible property\xe2\x80\x9d); 42 U.S.C. \xc2\xa7 7705c(a) (2006) (authorizing the Director of the Federal Emergency Management Agency to\n\xe2\x80\x9caccept and use bequests, gifts, or donations of services, money, or property\xe2\x80\x9d). These statutes, by specifically referencing \xe2\x80\x9cmoney\xe2\x80\x9d in addition to\n\xe2\x80\x9cproperty,\xe2\x80\x9d demonstrate that Congress does not assume that the term\n\xe2\x80\x9cproperty\xe2\x80\x9d necessarily includes money or funds.\nMoreover, even when Congress uses a general term, such as \xe2\x80\x9cany property,\xe2\x80\x9d to characterize the types of property that an agency may receive, it\nsometimes spells out in a related statutory provision that money is among\nthe types of property the agency may receive. See, e.g., 7 U.S.C. \xc2\xa7\xc2\xa7 2264,\n2265 (2006) (authorizing the Secretary of Agriculture to \xe2\x80\x9caccept, receive,\nhold, and administer on behalf of the United States gifts, bequests, or\ndevises of real and personal property . . . for the benefit of the National\nAgricultural Library,\xe2\x80\x9d and subsequently specifying how \xe2\x80\x9c[a]ny gift of\nmoney accepted pursuant to the authority\xe2\x80\x9d shall be deposited in the\nTreasury and appropriated); 28 U.S.C. \xc2\xa7 524(d)(1), (2) (2006) (authorizing the Attorney General to \xe2\x80\x9caccept, hold, administer, and use gifts,\ndevises, and bequests of any property or services,\xe2\x80\x9d and subsequently\nspecifying how \xe2\x80\x9c[g]fits, devises, and bequests of money\xe2\x80\x9d shall be deposited in the Treasury and appropriated). These statutes show both that Congress has more than one way to indicate expressly that money is among\nthe types of \xe2\x80\x9cproperty\xe2\x80\x9d that an agency may receive, and that the meanings\nof general terms such as \xe2\x80\x9cany property,\xe2\x80\x9d \xe2\x80\x9cother property,\xe2\x80\x9d or \xe2\x80\x9cproperty\xe2\x80\x9d\nneed to be discerned by considering the surrounding statutory context.\nThis is not to say that Congress must expressly state in a gift acceptance provision or a related provision that money is among the types\nof property an agency may accept by donation in order for money to be\nincluded. Our 1977 opinion addressing the gift acceptance provision\nformerly codified at 40 U.S.C. \xc2\xa7 298a (1976) (and now codified at 40\nU.S.C. \xc2\xa7 3175 (2006)) concluded that if Congress employs the term\n\xe2\x80\x9cproperty\xe2\x80\x9d in a context that indicates that its meaning is expansive enough\nto encompass money, an explicit invocation of the terms \xe2\x80\x9cmoney\xe2\x80\x9d or\n\xe2\x80\x9cfunds\xe2\x80\x9d may not be necessary. Acceptance of Gifts to Be Used in the\n393\n\n\x0c33 Op. O.L.C. 389 (2009)\n\nWhite House, 2 Op. O.L.C. at 352. But Congress\xe2\x80\x99s inclusion of an explicit\nreference to money in numerous statutes that also use the term \xe2\x80\x9cproperty\xe2\x80\x9d\nundermines, in our view, the position that \xe2\x80\x9cthe word \xe2\x80\x98property\xe2\x80\x99 when\nincluded in a statute that authorizes agencies to accept donations, includes\nfunds, money, or cash unless the statute excludes this form of property.\xe2\x80\x9d\nEPA Letter at 2.\nSecond, the immediate statutory context of the phrase \xe2\x80\x9cother property\xe2\x80\x9d\nin section 104(b)(4) indicates that it does not include money. See, e.g.,\nKing v. St. Vincent\xe2\x80\x99s Hosp., 502 U.S. 215, 221 (1991) (\xe2\x80\x9cthe meaning of\nstatutory language, plain or not, depends on context\xe2\x80\x9d); id. (\xe2\x80\x9cWords are\nnot pebbles in alien juxtaposition; they have only a communal existence;\nand not only does the meaning of each interpenetrate the other, but all in\ntheir aggregate take their purport from the setting in which they are\nused.\xe2\x80\x9d) (quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir.\n1941) (L. Hand, J.)). Section 104 is not a general gift acceptance provision that permits an agency to accept donations for any authorized purpose. See, e.g., 29 U.S.C. \xc2\xa7 568 (2006) (titled \xe2\x80\x9cAcceptance of donations\nby Secretary\xe2\x80\x9d and providing that \xe2\x80\x9c[t]he Secretary of Labor is authorized to\naccept, in the name of the Department of Labor, and employ or dispose of\nin furtherance of authorized activities of the Department of Labor, during\nthe fiscal year ending September 30, 1995, and each fiscal year thereafter,\nany money or property, real, personal, or mixed, tangible or intangible,\nreceived by gift, devise, bequest, or otherwise\xe2\x80\x9d). Rather, it permits acquisition of property only in order to facilitate a particular activity, namely,\nresearch to control air pollution resulting from the combustion of fuels.\nAnd consistent with that focused purpose, the words preceding \xe2\x80\x9cother\nproperty\xe2\x80\x9d in section 104(b)(4) indicate a limitation on the forms of property that may be \xe2\x80\x9cacquire[d]\xe2\x80\x9d pursuant to that section. 1\nThe section states that the Administrator may acquire \xe2\x80\x9csecret processes,\ntechnical data, inventions, patent applications, patents, licenses, and an\ninterest in lands, plants, and facilities.\xe2\x80\x9d These detailed specifications\n1 We are aware of two other statutes in the U.S. Code with the same phrasing as section 104(b)(4), both of which, like section 104, authorize scientific research on a particular subject. See 7 U.S.C. \xc2\xa7\xc2\xa7 178g, 178h (2006). These statutes are administered by the\nDepartments of Agriculture and Commerce. The General Counsel\xe2\x80\x99s Offices in both of\nthose departments have informed us that they are unaware of either department acquiring\nany property under these statutes.\n\n394\n\n\x0cEPA Acceptance and Use of Donations Under the Clean Air Act\n\nwould be unnecessary if the subsequent phrase \xe2\x80\x9cother property\xe2\x80\x9d was\nintended to include all types of property, including money. The list instead is best read to illustrate the types of property that may be received,\ntypes that are all distinguishable from money. Consistent with this purpose, the list that precedes the phrase \xe2\x80\x9cother property or rights\xe2\x80\x9d is narrowly focused on tools useful in research\xe2\x80\x94various forms of intellectual\nproperty as well as space and facilities. Money, although always generally\nuseful, is not in and of itself a research tool in the way that intellectual\nproperty\xe2\x80\x94the specified \xe2\x80\x9csecret processes, technical data, inventions,\npatent applications, patents licenses\xe2\x80\x9d\xe2\x80\x94and physical space and equipment\xe2\x80\x94\xe2\x80\x9can interest in lands, plants, and facilities\xe2\x80\x9d\xe2\x80\x94are in and of themselves research tools.\nThis interpretation of section 104(b)(4) is reinforced by the canon of\nstatutory construction ejusdem generis, which instructs that where \xe2\x80\x9cgeneral words follow specific words in a statutory enumeration, the general\nwords are construed to embrace only objects similar in nature to those\nobjects enumerated by the preceding specific words.\xe2\x80\x9d Circuit City Stores,\nInc. v. Adams, 532 U.S. 105, 114\xe2\x80\x9315 (2001) (internal quotation marks\nomitted) (quoting 2A Norman Singer, Sutherland on Statutes and Statutory Construction \xc2\xa7 47.17 (1991)). For example, in Washington State Department of Social & Health Services v. Keffeler, the Supreme Court\ndetermined that the statutory phrase at issue, \xe2\x80\x9cother legal process,\xe2\x80\x9d had\nto be read narrowly due to the words that preceded it. 537 U.S. 371, 383\xe2\x80\x93\n84 (2003). Keffeler concerned the legality of a Washington State scheme\nwhereby, for children under the State\xe2\x80\x99s foster care, the State credited\nSocial Security benefits received on behalf of each of those children to a\nspecial account, and debited that account to pay foster care providers.\nFederal law protected those Social Security benefits from \xe2\x80\x9cexecution,\nlevy, attachment, garnishment, or other legal process.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 407(a)\n(2006); id. \xc2\xa7 1383(d)(1). The question before the court was whether\n\xe2\x80\x9cother legal process\xe2\x80\x9d covered Washington State\xe2\x80\x99s scheme. The Court\nconcluded that it did not, even though the phrase at issue, \xe2\x80\x9cin the abstract,\xe2\x80\x9d encompassed the contested activity. Keffeler, 537 U.S. at 383\xe2\x80\x9384\n(\xe2\x80\x9c[T]he case boils down to whether the department\xe2\x80\x99s manner of gaining\ncontrol of the federal funds involves \xe2\x80\x98other legal process,\xe2\x80\x99 as the statute\nuses that term. That restriction to the statutory usage of \xe2\x80\x98other legal process\xe2\x80\x99 is important here, for in the abstract the department does use legal\n395\n\n\x0c33 Op. O.L.C. 389 (2009)\n\nprocess as the avenue to reimbursement.\xe2\x80\x9d). The Court found that \xe2\x80\x9cother\nlegal process\xe2\x80\x9d needed to be read \xe2\x80\x9cfar more restrictively\xe2\x80\x9d because it was\nlimited by the terms that preceded it, \xe2\x80\x9cexecution, levy, attachment, garnishment.\xe2\x80\x9d Id. at 384\xe2\x80\x9385. The Court looked at those preceding terms,\nidentified a unifying theme, and read \xe2\x80\x9cother legal process\xe2\x80\x9d to mean \xe2\x80\x9cprocess much like the processes of execution, levy, attachment, and garnishment, and at a minimum . . . requir[ing] utilization of some judicial or\nquasi-judicial mechanism, though not necessarily an elaborate one, by\nwhich control over property passes from one person to another in order\nto discharge or secure discharge of an allegedly existing or anticipated\nliability.\xe2\x80\x9d Id. at 385.\nApplying the ejusdem generis canon to section 104(b)(4) supports the\nconclusion that \xe2\x80\x9cother property\xe2\x80\x9d does not include money. Like \xe2\x80\x9cother\nlegal process,\xe2\x80\x9d the term at issue in Keffeler, \xe2\x80\x9cother property\xe2\x80\x9d in section\n104(b)(4) could, \xe2\x80\x9cin the abstract,\xe2\x80\x9d shorn of context, encompass the contested thing. But nothing in the list that precedes \xe2\x80\x9cother property\xe2\x80\x9d looks\nanything like money. Instead, each item in the list that precedes it could\nbe classified as a tool that the Administrator might need to acquire for\ndirect use in research. There is no item on the list, for example, of general\nvalue, which might indicate that \xe2\x80\x9cother property\xe2\x80\x9d should encompass\nproperty not directly useful in research but indirectly useful as a funding\nsource.\nTo be sure, section 104(b)(4) includes \xe2\x80\x9cdonation\xe2\x80\x9d as one of the allowable ways of obtaining something useful in the authorized research. And,\nin the abstract, money may be received by donation. But we do not read\nthe word \xe2\x80\x9cdonation,\xe2\x80\x9d in context, to indicate an expansive meaning of the\nterm \xe2\x80\x9cother property.\xe2\x80\x9d The word \xe2\x80\x9cdonation,\xe2\x80\x9d like the term \xe2\x80\x9cother property,\xe2\x80\x9d does not stand alone. It appears in a list of specified means of acquisition that is exhaustive. That list reinforces our conclusion that the illustrative examples that precede \xe2\x80\x9cother property\xe2\x80\x9d indicate that money was not\nintended to be among the things that could be accepted as a gift.\n\xe2\x80\x9c[P]urchase, license, lease, or donation\xe2\x80\x9d are the four ways one can obtain\ntangible or intangible personal property, real property, or the rights to use\nintellectual property. Money uniquely cannot be purchased, licensed or\nleased. It would be anomalous to authorize the Administrator to \xe2\x80\x9cacquire\xe2\x80\x9d\nmoney by \xe2\x80\x9cpurchase, license,\xe2\x80\x9d or \xe2\x80\x9clease.\xe2\x80\x9d Thus, the inclusion of the word\n\xe2\x80\x9cdonation\xe2\x80\x9d does not indicate that the word \xe2\x80\x9cproperty\xe2\x80\x9d should be read to\n396\n\n\x0cEPA Acceptance and Use of Donations Under the Clean Air Act\n\ninclude money. It is better read to denominate another means by which\nnon-monetary types of property may be acquired.\nIn arguing that the term \xe2\x80\x9cother property\xe2\x80\x9d in section 104(b)(4) should be\nread to encompass money, your office notes that an earlier opinion by this\nOffice addressing a different statute\xe2\x80\x99s use of the phrase \xe2\x80\x9cother property\xe2\x80\x9d\ncould be read to encompass money. EPA Letter at 6. A brief examination\nof the statute at issue in that earlier opinion, however, only supports our\nconclusion here.\nIn 1977, we concluded that 40 U.S.C. \xc2\xa7 298a (1976) (now codified at\n40 U.S.C. \xc2\xa7 3175) allowed the Administrator of General Services\n(\xe2\x80\x9cGSA\xe2\x80\x9d) to accept gifts of money. Our analysis, in its entirety, was as\nfollows: \xe2\x80\x9cThe statute applicable to GSA does not expressly mention gifts\nof money, but such gifts would appear to be included in the general phrase\nin 40 U.S.C. \xc2\xa7 298a (1976), \xe2\x80\x98gifts of real, personal, or other property.\xe2\x80\x99\xe2\x80\x9d\nAcceptance of Gifts to Be Used in the White House, 2 Op. O.L.C. at 352.\nAt the time we wrote that opinion, 40 U.S.C. \xc2\xa7 298a was titled \xe2\x80\x9cAcceptance of gifts of real, personal, or other property.\xe2\x80\x9d Its entire text was\nas follows:\nThe Administrator of General Services, together with the Postmaster\nGeneral where his office is concerned, is authorized to accept on behalf of the United States unconditional gifts of real, personal, or other property in aid of any project or function within their respective\njurisdictions.\nUnlike the statutory text surrounding the term \xe2\x80\x9cother property\xe2\x80\x9d in section 104(b)(4), there is no context to limit the meaning of the term \xe2\x80\x9cother\nproperty\xe2\x80\x9d in former section 298a. On the contrary, the different preceding\nphrase in former section 298a, \xe2\x80\x9cunconditional gifts of real, personal,\xe2\x80\x9d\nstands in contrast to the beginning of section 104(b)(4). First, it authorizes\nreceipt of property by only one means, \xe2\x80\x9cgifts,\xe2\x80\x9d i.e., donation. That is\nconsistent with the inclusion of money in the forms of property authorized\nto be accepted and contains none of the limiting implications of \xe2\x80\x9cacquire\n. . . by purchase, license, lease\xe2\x80\x9d in section 104(b)(4). Second, the terms\n\xe2\x80\x9creal\xe2\x80\x9d and \xe2\x80\x9cpersonal\xe2\x80\x9d are general and encompassing, again unlike the\nmuch more specific types of property interests identified in section\n104(b)(4), \xe2\x80\x9csecret processes, technical data, inventions, patent applications, patents, licenses, and an interest in lands, plants, and facilities.\xe2\x80\x9d All\n397\n\n\x0c33 Op. O.L.C. 389 (2009)\n\nproperty, of any kind, is either \xe2\x80\x9creal\xe2\x80\x9d or \xe2\x80\x9cpersonal,\xe2\x80\x9d including money.\nSee, e.g., Black\xe2\x80\x99s Law Dictionary 1254 (8th ed. 2004) (defining \xe2\x80\x9cpersonal\nproperty\xe2\x80\x9d as \xe2\x80\x9c[a]ny movable or intangible thing that is subject to ownership and not classified as real property\xe2\x80\x9d). 2 Our conclusion that the phrase\n\xe2\x80\x9cother property\xe2\x80\x9d should be interpreted differently in section 104(b)(4) and\nin former section 298a, then, flows naturally from the starkly different\nstatutory contexts in which the phrase appears.\nWe have also examined the legislative history of section 104, but we\nthink it sheds no light on the question before us. The legislative history\ncontains no discussion of the meaning of the term \xe2\x80\x9cother property,\xe2\x80\x9d nor\ndoes it address what the drafters meant by their use of the terms \xe2\x80\x9cacquire\xe2\x80\x9d\nor \xe2\x80\x9cdonation.\xe2\x80\x9d As the EPA acknowledges in its December 15, 2008 letter,\nthe legislative history contains \xe2\x80\x9cno specific discussion of what Congress\nintended by the phrase \xe2\x80\x98and other property.\xe2\x80\x99\xe2\x80\x9d EPA Letter at 3. The two\nplaces in the legislative history to which the EPA draws attention in its\nletter are inconclusive at best, and primarily can be read to indicate that\nCongress was focused on empowering the EPA Administrator to obtain\nthe tools necessary for the relevant research programs, not on validating a\ngeneral gift or donation statute.\nFirst, the EPA notes that the original Senate report on the bill that included section 104 stated that \xe2\x80\x9cthe Secretary is directed to . . . acquire\nproperty and rights by various means.\xe2\x80\x9d EPA Letter at 3 (citing S. Rep. No.\n90-403, at 41 (1967)). The use of the term \xe2\x80\x9cproperty\xe2\x80\x9d without explanation\nor elaboration sheds no light on whether it includes money. In a preceding\nparagraph, the Report characterizes section 104\xe2\x80\x99s purpose as \xe2\x80\x9crequir[ing]\nthe Secretary to give special emphasis to research into new methods for\nthe control of air pollution resulting from fuel combustion.\xe2\x80\x9d S. Rep. No.\n90-403, at 41. The reference to the Secretary\xe2\x80\x99s direction to \xe2\x80\x9cacquire\nproperty and rights by various means\xe2\x80\x9d appears in a list of the Secretary\xe2\x80\x99s\nobligations \xe2\x80\x9c[i]n order to carry out the provisions of this section.\xe2\x80\x9d Id. The\nSecretary \xe2\x80\x9cis directed to conduct research and development of low-cost\ninstrumentation techniques to determine the quantity and quality of air\npollution emissions; make use of existing Federal laboratories; establish\n2 In fact, in 2002 Congress amended 40 U.S.C. \xc2\xa7 298a to replace \xe2\x80\x9creal, personal, or\nother property\xe2\x80\x9d with the simple term \xe2\x80\x9cproperty\xe2\x80\x9d because the phrase \xe2\x80\x9creal, personal, or\nother\xe2\x80\x9d was \xe2\x80\x9cunnecessary.\xe2\x80\x9d H.R. Rep. No. 107-479, at 57 (2002).\n\n398\n\n\x0cEPA Acceptance and Use of Donations Under the Clean Air Act\n\nand operate facilities to carry out the research; acquire property and rights\nby various means, and cooperate and participate in the development of\nforeign and domestic projects.\xe2\x80\x9d Id. Every element of this passage indicates that Congress\xe2\x80\x99s focus was on the research itself, and on the acquisition of the tools necessary to accomplish the research, rather than on the\ntypes of property the EPA could acquire. No reference is made to donations or gifts. The statement that the Secretary is directed \xe2\x80\x9cto acquire\nproperty by various means\xe2\x80\x9d demonstrates, at most, that Congress intended\nto broadly empower the acquisition of the necessary property, not that\nCongress intended such property to include money.\nSecond, the EPA points to a comment in another Senate report issued\nwhen Congress amended section 104 to increase appropriations. In that\nreport, the Committee on Public Works expresses an expectation that\n\xe2\x80\x9cprojects involving cost sharing by industry will account for an increasing\nshare of the [research and development] program in the months and years\nahead, particularly in the area of prototype testing.\xe2\x80\x9d S. Rep. No. 91-286,\nat 6 (1969). This statement, like the one in the earlier Senate report, in no\nway suggests an intent to enable the EPA Administrator to receive and use\ndonated funds. Nowhere does the report state that such \xe2\x80\x9ccost sharing\xe2\x80\x9d\nshall occur by the donation of private funds to the EPA. In fact, other\nparts of the report indicate that such cost sharing would be achieved\nthrough the sharing of real and intellectual property, the kinds of \xe2\x80\x9cproperty\xe2\x80\x9d specified in section 104(b)(4). For example, the report notes that\n\xe2\x80\x9csection 104 allows for the construction and testing of demonstration\ncontrol equipment on private property. The consequence is to ease the\nlegal problems associated with supporting large-scale development and\ndemonstration projects involving construction on private property. The\nconstruction and operation of demonstration plants at industrial sites is\noften the best means of making a realistic evaluation of the economic and\ntechnical feasibility of new processes.\xe2\x80\x9d Id. at 5. This passage fits with\nsection 104(b)(4)\xe2\x80\x99s statement that the Administrator may \xe2\x80\x9cacquire . . . an\ninterest in lands, plants, and facilities.\xe2\x80\x9d Similarly, in the paragraph following the statement about cost-sharing quoted by the EPA, the report notes\nthat \xe2\x80\x9c[a]greements regarding the handling of proprietary information have\nbeen negotiated to pave the way for evaluation of flue-gas treatment\nprocesses developed by Wellman-Lord and the Monsanto Co.\xe2\x80\x9d Id. at 7.\n399\n\n\x0c33 Op. O.L.C. 389 (2009)\n\nThis passage fits with section 104(b)(4)\xe2\x80\x99s authorization of the Administrator to \xe2\x80\x9cacquire . . . patents, licenses.\xe2\x80\x9d\nConsidering both the immediate context in which \xe2\x80\x9cother property\xe2\x80\x9d appears in section 104(b)(4) and the broader context of other statutes authorizing agencies to accept donations, we believe Congress did not intend to\nauthorize the EPA to accept monetary donations when it authorized the\nacquisition of certain types of property in section 104(b)(4).\nII.\nIn a follow-up letter, dated May 29, 2009, your office has asked us to\naddress a related question, whether \xe2\x80\x9cother property\xe2\x80\x9d in section 104(b)(4)\nincludes items of personal property other than money, such as an automobile. See Letter for David J. Barron, Acting Assistant Attorney General,\nOffice of Legal Counsel, from Patricia K. Hirsch, Acting General Counsel, Environmental Protection Agency, at 1 (May 29, 2009). We conclude\nthat it does.\nAs our discussion in Part I indicates, we believe that, under the ejusdem\ngeneris canon, the term \xe2\x80\x9cother property\xe2\x80\x9d in section 104(b)(4) is constrained by the items in the list that precedes it. While many of those\nitems are forms of intangible property, such as various kinds of intellectual property, not all of them are. Among the types of property that may be\nacquired are \xe2\x80\x9clands, plants, and facilities.\xe2\x80\x9d Admittedly, the reference to\nthose forms of property is prefaced by \xe2\x80\x9can interest in.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 7404(b)(4). But fee simple ownership is one type of property interest.\nAnd, in any event, as explained above, this list identifies types of property\nthat are all tools directly useful in executing the anti-pollution research\nauthorized by section 104. In particular, the term \xe2\x80\x9cfacilities\xe2\x80\x9d is quite\nbroad, and would appear to cover a research lab and relevant research\nequipment. Personal property, moreover, may not only be acquired by\ndonation, but also by purchase, license, or lease. Therefore, we believe\nthat property that would be used directly in the anti-pollution research\nauthorized by section 104 falls within the scope of property that can be\nacquired pursuant to section 104(b)(4). With this understanding of the\nterm \xe2\x80\x9cproperty\xe2\x80\x9d in mind, certainly an automobile could fall under the term\nif, for example, it were acquired to test its emissions or even if it were\nacquired to shuttle equipment between research facilities.\n400\n\n\x0cEPA Acceptance and Use of Donations Under the Clean Air Act\n\nIII.\nFor the foregoing reasons, we conclude that section 104(b)(4) of the\nClean Air Act does not authorize the receipt and use of donated money\nbut does authorize the EPA to receive personal property that does not fall\ninto one of the specifically enumerated categories so long as it is for use\ndirectly to carry out the anti-pollution research authorized by section 104.\nJONATHAN G. CEDARBAUM\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n401\n\n\x0c'