b'Payment of Expenses Associated with TYavel\nby the President and Vice President\nB in d s appropriated for the official functioning of the offices of the President and the Vice President\nm ay b e used fo r travel expenses only if the travel is reasonably related to an official purpose; and,\nofficial activities m ay be funded on ly from funds appropriated for such purposes. Thus appropri\xc2\xad\nated funds should not be used to pay fo r political travel and political funds should not be used to pay\nfor official travel.\nW h eth er an ev en t is official o r political for purposes o f paying its expenses m ust be determ ined on a\ncase-by-case basis, and both the nature o f the event and the nature o f the individual involved should\nbe considered.\nW here both official and political activities occur on the sam e trip, the expenses of individuals on the\ntrip f o r both political an d official reasons can be apportioned between the governm ent and a\npolitical co m m ittee on a basis which reflects the tim e spent on the respective activities. D uring the\np eriod of a presidential election cam paign. Federal E lection Com m ission regulations m ay require\na differen t rule o f allocation.\n\nMarch 24, 1982\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nThis memorandum responds to your request for our advice about the payment\nof expenses associated with travel by the President or Vice President. We are to\nassume that travel by the President or Vice President may often include both\nofficial events, undertaken as part of the President\xe2\x80\x99s or Vice President\xe2\x80\x99s official\nroles as governmental leaders, and purely political events, undertaken for par\xc2\xad\ntisan purposes in order to advance the interests of the President\xe2\x80\x99s and Vice\nPresident\xe2\x80\x99s political party. This mixed character of much presidential and vice\npresidential travel follows naturally from their dual roles as governmental of\xc2\xad\nficials and leaders of their party. You have asked us to articulate the legal\nprinciples governing the allocation and payment of costs associated with such\ntravel.\nSeveral caveats must be noted at the outset. First, our opinion should not be\nread as a declaration that the generally applicable principles will necessarily lead\nto an inflexible result in a particular case. In fact, the principles are of such\ngenerality that they often will generate few determinate results. They thus must\nbe viewed as general guides to decisionmaking. Second, the principles should be\napplied to a particular trip by the officials most familiar with the facts of the trip.\nEach case may present unique circumstances that will need to be taken into\n214\n\n\x0caccount in determining, for instance, whether an event is \xe2\x80\x9c official\xe2\x80\x9d or \xe2\x80\x9c politi\xc2\xad\ncal\xe2\x80\x9d in character. As we will indicate, there is considerable room in this context\nfor the careful use of informed discretion. Third, this opinion focuses on broadly\napplicable legal principles, not on the specific rules adopted by the Federal\nElection Commission forelection activity. See 11 C.F.R. Chapter 1 (1981). If, in\nlight of this opinion, particular questions arise, we will, of course, be glad to\naddress them.\nFurthermore, the principles discussed in this opinion may be fully understood\nonly with an appreciation of the unique context presented by the peculiar\nfunctions and responsibilities of the President and Vice President in our system of\ngovernment. They are the senior officials of the Executive Branch of government.\nTheir official roles are necessarily political in the broad sense that they must\nformulate, explain, advocate, and defend policies. To the extent that the President\nand Vice President generate support for their policies and programs, they are also\nexecuting and fulfilling their official responsibilities. Even the most clearly\npartisan activity is not without some impact on the official activities of the\nPresident and Vice President.\nBy the same token, official success or failure by the President and Vice\nPresident has an inevitable and unavoidable impact on the standing of their\npolitical party, members of their party, and their party\xe2\x80\x99s candidates for public\noffice. Thus, it is simply not possible to divide many of the actions of the\nPresident and Vice President into utterly official or purely political categories. To\nattempt to do so in most cases would ignore the nature of our political system and\nthe structure of our government. Accordingly, efforts to establish such divisions\nmust be approached with common sense and a good faith effort to apply the spirit\nof the principles we discuss in this memorandum, and they must be judged with\nconsiderable deference to the decisions of the persons directly involved in\nmaking the determinations.\nWith this background, our discussion will focus on three major questions.\nFirst, what are the basic legal principles to be applied, putting aside specialized\nrestrictions formulated by the Federal Election Commission with regard to\nelection activities? Second, how does one determine whether an event giving rise\nto an expense is \xe2\x80\x9c official\xe2\x80\x9d or \xe2\x80\x9c non-official\xe2\x80\x9d in character? Third, assuming that a\ntrip involves events that are both official and non-official (or political) in\ncharacter, may certain of the expenses for such a mixed trip be apportioned\nbetween the government, on the one hand, and a political committee, on the other\nhand? In the fourth section, we will discuss other considerations that bear on the\nissues discussed herein.\nI. TVo Basic Norms\nWhen considering payment of expenses associated with presidential and vice\npresidential travel, two major principles governing the use of appropriated funds\nmust be bome in mind. First, appropriated funds may be spent only for the\npurposes for which they have been appropriated. 31 U.S.C. \xc2\xa7 628; 52 Comp.\n215\n\n\x0cGen. 504 (1973); 50 Comp. Gen. 534 (1971). Thus, funds appropriated for the\nofficial functioning of the offices of the President and the Vice President may be\nused for travel expenses only if the travel is reasonably related to an official\npurpose. If, however, there is no reasonable connection between the expense\nincurred and the official purposes to be served by an appropriation\xe2\x80\x94 as, generally\nspeaking, there would not be when an expense is incurred purely for partisan\npolitical purposes\xe2\x80\x94 official funds may not be used to pay the expense.\nThe second basic principle is that, in general, official activities should be paid\nfor only from funds appropriated for such purposes, unless Congress has author\xc2\xad\nized the support of such activities by other means. Stated another way, although\nappropriated funds should not be used for non-official purposes, it is equally true\nthat outside sources of funds may not be used to pay for official activities. This\nlatter principle, which prevents the unauthorized augmentation of appropriations,\nhas been recognized by the Comptroller General on numerous occasions.1 A\nproblem concerning an unauthorized augmentation of an appropriation does not\narise when a trip is purely non-official in character and non-official funds are used\nto pay for it. Rather, the issue arises only where an official activity is supported by\nnon-appropriated funds and where there is no authority for that to occur.\nIn short, appropriated funds should not be used to pay for political events, and\nabsent authority to the contrary, political funds should not be used to pay for\nofficial events. The difficulties of applying these principles arise because both\ntypes of activities may occur on the same trip and because it is exceedingly\ndifficult in many instances to determine what is official and what is political.\nII. What Tests Should Be Used for Determining Whether an Expense\nShould Be Considered \xe2\x80\x9c Political\xe2\x80\x9d or \xe2\x80\x9c Official?\xe2\x80\x9d\nBecause officials will wish to ensure that appropriated funds are used only to\npay for expenses associated with official events and are not used to pay for\npolitical expenses, it will be necessary to determine on a case-by-case basis\nwhether an expense is official or political in character. As discussed generally\nabove, there is unfortunately no single litmus test for making such judgments.\nIndeed, many events could be characterized properly as either political or official\nor both. Therefore, in making this determination the persons most familiar with\nthe facts of a particular trip will have to assess all of the circumstances involved\nand apply a large measure of common sense. There are, however, two major\nvariables concerning the source of the expense to be borne in mind: the nature of\nthe event involved, and the nature of the individual involved. Either, or both, of\nthese indicia may be useful in a particular case in determining whether a\nparticular expense should be considered official or political.\nWith respect to the nature of the event giving rise to an expense, an earlier\nopinion of this Office, entitled \xe2\x80\x9c Political Trips\xe2\x80\x9d and transmitted to the Counsel to\nthe President on March 15, 1977, stated the following guidelines:\n\' S e e .e /> .2 3 C om p. G en 6 9 4(1944), 4 6 Com p. G en . 6 8 9 (1 9 6 7 ) Scralso 9 C om p D ec. 174 (1902), 17Com p.\nD ec. 712 (1911)\n\n216\n\n\x0cAs a general rule, Presidential and Vice Presidential travel should\nbe considered \xe2\x80\x98political\xe2\x80\x99 if its primary purpose involves their\npositions as leaders of their political party. Appearing at party\nfunctions, fundraising, and campaigning for specific candidates\nare the principal examples of travel which should be considered\npolitical. On the other hand, travel for inspections, meetings,\nnon-partisan addresses, and the like ordinarily should not be\nconsidered \xe2\x80\x98political\xe2\x80\x99 travel even though they [sic] may have\npartisan consequences or concern questions on which opinion is\npolitically divided. The President cannot perform his official\nduties effectively without the understanding, confidence, and\nsupport of the public. Travel and appearances by the President and\nVice President to present, explain, and secure public support for\nthe Administration\xe2\x80\x99s measures are therefore an inherent part of the\nPresident\xe2\x80\x99s and Vice President\xe2\x80\x99s official duties (pages 11-12).\nWe concur with the foregoing rules of thumb, which are based largely on a\ncommon sense understanding of the nature of political and official activities.2\nWhile we would hope that the foregoing generalities may be useful guides for\nthe future, they should not be viewed as inflexible. There clearly is much room\nfor discretion in determining whether an event giving rise to an expense is\npolitical or official. At bottom, the question is a factual one that can only be\nanswered by those most familiar with the particular facts of a given situation.\nNonetheless, in general, if the purpose of an event on a trip is to promote the\npartisan aims of the President\xe2\x80\x99s or Vice President\xe2\x80\x99s party or candidates of that\nparty, then expenses incurred in performing the event would generally be\npolitical in character. Should particular questions arise about specific events, we\nwould be glad to provide more concrete advice concerning them.\nThe second variable that may, in some circumstances, determine the character\nof a particular expense incurred on a trip is the nature of the individual whose\nactivity generates the expense. There are some individuals who, in particular\nsituations, are on a trip for inherently official or political purposes. Expenses\nincurred by them should generally be viewed as either official or political\ndepending on their particular role. For instance, there are some persons whose\nofficial duties require them to be with the President, whether or not the President\nhimself is on official business.3 This group includes the President\xe2\x80\x99s doctor, his\nmilitary aide, and the Secret Service agents responsible for his protection.4 A\nsimilar group would exist for the Vice President. Expenses incurred during travel\nwith the President or Vice President by this group of individuals should be\n2 A lthough we generally agree w ith this earlier opinion of this O ffice, we w ould note that m uch o f its advice is o f a\npru d en tial, n o ts tn c tly legal, ch aracter In the present m em orandum , w e do not undertake to specify rules that are not\nlegally m andated. M oreover, the earlier opinion itself takes pains to stress the flexibility that exists in d eterm ining\nw hether, in a p articu lar case, travel by the President is official o r political (see page 7).\n3 T his point is the sam e as stated in the M arch 15, 1977, opinion of this O ffice, entitled \xe2\x80\x9c Political Trips\xe2\x80\x9d (p ag es 9,\n15-16).\n4 T h is list is not intended to be exhaustive T he President may, in his discretio n , d eterm ine that o th ers are\nnecessary m em bers o f his official party w henever he travels.\n\n217\n\n\x0cconsidered official regardless of the character of the event that may be involved in\na given trip.\nSimilarly, on an otherwise entirely official trip, an individual may accompany\nthe group for purely political reasons. As a rule, any expenses specifically\nincurred by such individuals should be considered political expenses, regardless\nof the events involved in the trip.\nIn short, as we noted at the outset of this section, there is no single test for\ndetermining whether an expense is political or official in character. Viewed\ngenerally, expenses of individuals whose official duties require them to travel\nwith the President or Vice President should normally be considered official.\nExpenses of individuals who are on a trip for purely political reasons should\nnormally be considered political. Expenses associated with individuals who are\nnot necessarily serving in either a wholly official or wholly political capacity\xe2\x80\x94\nsuch as the President or Vice President or other individuals in the White House\nwho may, consistent with their official duties, perform political functions\xe2\x80\x94\nshould normally be judged to be official or political depending on the character of\nthe event giving rise to the expense.\nIII. On a Mixed TYip Including Both Official and Political Activities,\nCan Certain Expenses Be Apportioned Between the Government and a\nPolitical Committee?\nBased on what we have said thus far, the following conclusions may be stated.\nFirst, if all events during a trip are political in character, the only official expenses\non the trip would be those associated specifically with the group of individuals\nwhose official duties require them to accompany the President and Vice Presi\xc2\xad\ndent. Second, if all events on a trip are official in character, the only political\nexpenses would be those associated specifically with individuals who accompany\nthe President and Vice President on the trip for purely political reasons. This\nmeans that on a trip that is entirely official, any expenses associated with the\nPresident or Vice President or others who are not necessarily on the trip for purely\nofficial or purely political reasons should be considered official. Conversely, on a\ntrip that is entirely political, expenses associated with persons who are not\nnecessarily on the trip for wholly official or wholly political reasons should be\nconsidered political.\nA question remains, however, concerning expenses associated with individu\xc2\xad\nals whose purpose for being on a trip is not necessarily only political or only\nofficial, when the trip itself is for both official and political purposes. Specifi\xc2\xad\ncally, on a mixed trip involving a substantial official element and a substantial\npolitical element, can the expenses associated with the President or Vice Presi\xc2\xad\ndent or others who are on the trip for both reasons be apportioned between the\ngovernment and a political committee? There are several possible views on this\nquestion.\nIt might be argued, for example, that the performance of an official event\nduring a trip could not have been accomplished without incurring certain expend\xc2\xad\n218\n\n\x0citures and that, therefore, the entire cost of the trip should be treated as official\nand should be paid out of appropriated funds, with the sole exception being\nincremental expenses associated specifically with a political activity (e.g., a\nhotel bill for an extra night\xe2\x80\x99s lodging necessitated entirely by a political event on\nthe following day). This approach is grounded on the assumption that to permit\nany other apportionment of the cost of a trip to a political committee would allow\nthe official budget to benefit from an unauthorized augmentation of appropria\xc2\xad\ntions. Since the expenses incurred were necessary to accomplish an official\npurpose, on this view they must be paid for in full with appropriated funds.\nThe opposite theory could also be advanced. That is, if there is any political\nactivity on a trip, a political committee could theoretically be required to pay for\nthe trip\xe2\x80\x99s entire cost (except for incremental expenses specifically attributable to\nan official event). This theory proceeds on the assumption that any other approach\nwould allow the President\xe2\x80\x99s or Vice President\xe2\x80\x99s political activities to be sub\xc2\xad\nsidized by their official appropriations.\nA third approach, which in effect combines the first two, is suggested by a\nprior opinion of this Office, transmitted to the Counsel to the President on\nSeptember 17, 1980, and entitled \xe2\x80\x9c Reimbursement of Travel Expenses Incurred\nby Government Officials on Mixed Official and Campaign Trips.\xe2\x80\x9d That opinion\nresponded to a question about the operation of a Federal Election Commission\n(FEC) rule under which a campaign committee\xe2\x80\x99s share of the costs of a mixed\nofficial-political trip is the full cost of the trip from the point of origin through\neach campaign-related stop and back to the point of origin. 11 C.F.R. \xc2\xa7 9004.F.5\nAfter the FEC adopted this rule, the White House Counsel\xe2\x80\x99s Office assumed that\nthe expense to the government for such a trip would be the difference between the\ntrip\xe2\x80\x99s actual cost and the amount reimbursed by the campaign committee.\nHowever, the Counsel\xe2\x80\x99s Office was concerned that such diminishment of the\nactual expense to the government could constitute an unauthorized augmentation\nof appropriations. For that reason, it sought an opinion of this Office.\nThe September 17, 1980, opinion concluded that, if the government were to\npay only the difference between the actual cost of a trip and the amount\nreimbursed by the campaign committee under the FEC rule, there would be an\nunauthorized augmentation of appropriations (assuming no authority to accept\ncontributions) so long as the government were allowed to \xe2\x80\x9c reap the benefit\xe2\x80\x9d of\nthe enhanced payment of expenses by the campaign committee under the FEC\nrule. To cure this problem, the opinion stated that an accounting system should be\ndevised to charge \xe2\x80\x9c the full allocated travel costs to both the Campaign Commit\xc2\xad\ntee and the government agency,\xe2\x80\x9d with a deposit of any excess funds in the\nTreasury (page 4, emphasis added).\nWhile we express no view regarding the correctness of this third approach\nduring the period of a presidential election campaign when the Federal Election\n5 For instance, if a trip from W ashington, D C , to Chicago w ere taken for official purposes, an d then a trip from\nC hicago to D enver w ere taken for cam paign purposes (with a return from D enver to W ashington, D C ) , u n d e r the\nFEC rule the cam paign com m ittee w ould have to m ake reim bursem ent for the co st o f travel from Washington* D .C .,\nto D enver and back to W ashington, D C.\n\n219\n\n\x0cCommission\xe2\x80\x99s regulations would be applicable, we do not believe that the\napproach correctly reflects the requirements that apply outside the campaign\nperiod. We believe that the first two approaches are unreasonable solutions to the\nproblem because each tilts the scales completely toward one of the two conflicting\nguiding principles and results either in an inappropriate augmentation of appro\xc2\xad\npriated funds or the subsidization of political activity with appropriated funds.\nThe approach of the September 17, 1980, Office of Legal Counsel opinion\nattempts to address these problems in, we believe, an unrealistic and unnecessary\nway by requiring one trip to be paid for twice\xe2\x80\x94 both with official funds and with\npolitical funds.\nIn our view, a fourth approach which attempts in good faith to apportion the\ncosts of such a trip on the basis o f a reasonable division between the time spent on\npolitical activities and the time spent on official activities is a more reasonable\nand a legal resolution of the underlying problems. For example, if 50 percent of a\nsingle day\xe2\x80\x99s events are political and 50 percent are official, approximately\n50 percent of the costs associated with participants whose roles are not neces\xc2\xad\nsarily either official or political should be reimbursed by the political committee\nand 50 percent should be paid from appropriated funds, unless such an appor\xc2\xad\ntionment, under the particular circumstances, would on some basis be unreason\xc2\xad\nable or inequitable. We believe that such an approach faithfully accommodates\nboth of the basic norms discussed in part I.\nThus, when there is a mixed trip involving the President or Vice President, the\npurpose of which is both substantially political and substantially official, ex\xc2\xad\npenses should be paid in the following manner: first, expenses for individuals\nwho are necessarily official (Secret Service, etc.) should be paid for with\nappropriated funds; second, expenses for individuals who are necessarily politi\xc2\xad\ncal (campaign officials) should be reimbursed by a political committee; third,\nincremental expenses specifically attributable to an official event should be paid\nfrom appropriated funds, and incremental expenses specifically attributable to a\npolitical event should be paid from political funds; and finally, expenses for\nindividuals whose official roles permit them to perform political activity should\nbe reasonably and equitably apportioned so that a share reflecting the amount of a\ntrip that is political in character should be paid by a political committee. If these\ngeneral guidelines are followed, then the purposes of using appropriated funds\nfor official purposes but not using such funds for political purposes will be\nachieved.\nWe must reaffirm the limited nature of our conclusion about apportionment.\nAs we have indicated, some categories of expenses may have to be treated as\nentirely official or entirely political, and thus they would not be subject to\napportionment. Apportionment would be appropriate only with respect to ex\xc2\xad\npenses associated with individuals whose official roles permit them to perform\npolitical functions, and only when those individuals are on a trip that itself is not\nentirely political or wholly official in nature.6 In such circumstances, to accom\xc2\xad\n6 We are not suggesting any specific form ula for apportionm ent, for several form ulae may b e equally reasonable\nC o ntinued\n\n220\n\n\x0cmodate both of the guiding norms noted in part I, we believe that an apportion\xc2\xad\nment of expenses between appropriated funds and the funds of a political\ncommittee which reflects the relationship between official and political activities\nmay be made. We urge caution in applying such an approach, particularly in\nretaining records to substantiate any characterization of an event or trip as\npolitical or official that could be used in the future if, for instance, there should be\nan audit by the General Accounting Office.7\nIV. Other Considerations\nWe would add one qualification to the preceding discussion. As noted in part I,\nofficial expenses, including expenses incurred during the President\xe2\x80\x99s and the Vice\nPresident\xe2\x80\x99s travel for official purposes, may not be paid for by funds other than\nthose appropriated for official purposes unless there is authority to the contrary.\nAn acceptable source of such authority would be a congressional authorization,\nin the form of a statute, for the President and the Vice President (or their\nrespective offices) to accept gifts to defray their official expenses. This Office has\nconcluded in the past that the White House Office and the Office of the Vice\nPresident do not have statutory authority to accept contributions or gifts. This\nlegal premise provides the basis for the conclusion that the payment by a political\ncommittee of official travel expenses incurred by the President or Vice President\nwould be an impermissible augmentation of the appropriations for these offices.\nHowever, in the course of our research for this opinion, we reviewed a\nprovision of law, 2 U.S.C. \xc2\xa7 439a (1982), not considered in any of the prior\nopinions on this subject by this Office or by the Comptroller General, which\nappears to grant the President and Vice President gift authority, at least to the\nextent of authorizing them to accept contributions to defray their ordinary and\nnecessary official expenses. Section 439a states in full:\nAmounts received by a candidate as contributions that are in\nexcess of any amount necessary to defray his expenditures, and\n\nany other amounts contributed to an individual for the purpose cf\nsupporting his or her activities as a holder cf Federal office, may\nbe used by such candidate or individual, as the case may be, to\nand som e may be particularly well suited to particular trips For exam ple, a form ula may be predicated o n the\nnum ber o f hours spent on each event, the num ber of hours on the entire trip (including travel tim e) devoted to official\no r political affairs, the num ber o f events devoted to each, o r if a trip is devoted to one type o f event in a d istant city\nand another type in a nearby city on the return flight, on the relative distances travelled to each W hile som e general\ng uidelines w ithin these lim its should be established for consistency in application, the overrid in g factor is the\nreasonableness o f the apportionm ent in a specific situation. We w ould not exclude the possibility o f creating an\nexception fo rd e m inim is involvem ent inofficial activity during a trip that w ould be treated as en tirely p o litical, and\nvice versa. We note that previous A dm inistrations have m ade use of such a de m inim is exception, as indicated in the\nbackground m aterials supplied to us by your office\n7 In tw o opinions to several S enators, dated O ctober 6 , 1980, and M arch 6 , 1981, the C o m p tro ller G eneral\nd iscu ssed the apportionm ent of travel expenses for purposes of their paym ent by official and political funds un d er the\nC arter A dm inistration (B\xe2\x80\x94196862) A pportionm ent was not objected to by the C om ptroller G en eral. T h e C o m p \xc2\xad\ntroller G eneral expressly noted, as we have observed here, that there are \xe2\x80\x9c no guidelines o f a legally binding nature\n[w hich] have been established by legislation, judicial decision, or otherw ise\xe2\x80\x9d (p ag e 2 o f M arch 6 , 1981, opinion).\nT hese o p in io n s, coupled with prior practice by the W hite H ouse, buttress o u r conclusion that a reasonable\nap portionm ent may be made in the circum stances we have described.\n\n221\n\n\x0cdefray any ordinary and necessary expenses incurred in connec\xc2\xad\ntion with his or her duties as a holder cf Federal office, may be\ncontributed to any organization described in section 170(c) of\n. . . [the Internal Revenue Code of 1954], or may be used for any\nother lawful purpose, including transfers without limitation to any\nnational, State, or local committee of any political party; except\nthat, with respect to any individual who is not a Senator or\nRepresentative in, or Delegate or Resident Commissioner to, the\nCongress on January 8, 1980, no such amounts may be converted\nby any person to any personal use, other than to defray any\nordinary and necessary expenses incurred in connection with his\nor her duties as a holder of Federal office. (Emphasis added.)\nThe foregoing provision authorizes \xe2\x80\x9c amounts contributed to an individual for the\npurpose of supporting his or her activities as a holder of Federal office\xe2\x80\x9d to be used\nby such individual \xe2\x80\x9c to defray any ordinary and necessary expenses incurred in\nconnection with his or her duties. . . .\xe2\x80\x9d The term \xe2\x80\x9c Federal office\xe2\x80\x9d is defined\nseparately as including the Offices of the President, the Vice President, and\nMembers of Congress. 2 U.S.C. \xc2\xa7 431(c). Accordingly, on its face, this provi\xc2\xad\nsion would appear to authorize use by the President and Vice President of\namounts contributed to such individuals for the purpose of supporting their\nactivities as President or Vice President. This would include expenses incurred in\nthe course of official travel.8\nWe have consulted the legislative history of 2 U.S.C. \xc2\xa7 439a, first adopted as\npart of the Federal Election Campaign Act Amendments of 1974, Pub. L. No.\n93\xe2\x80\x94443, 88 Stat. 1289, and have found nothing that would be inconsistent with\nsuch an interpretation. However, in the limited time available, we similarly have\nfound nothing to indicate that Congress specifically considered the provision\xe2\x80\x99s\napplication to the Office of the President or Vice President. The brief floor\ndiscussion of this provision9 and of a similar provision in a predecessor bill10\nmerely focused on its application to Members of Congress, who traditionally\nhave been permitted to accept gifts to defray the expenses of their offices.11 A\nregulation promulgated by the Federal Election Commission under this provision\nrepeats the language of the statute. See 11 C.F.R. \xc2\xa7\xc2\xa7 113.1 & 113.2. Thus, we\nare aware of no indication that Congress intended it to mean anything other than\nwhat it clearly says: that elected officials including the President and the Vice\nPresident may accept gifts to defray expenses incurred in connection with the\nperformance of their duties.\n9 O f c o u rse, an y ap p licab le conflict of in terest provisions w ould have to b e borne in m ind if \xc2\xa7 4 3 9 a were to be used\na s au thority fo r th e rece ip t o f contributions f o r the P resident\'s o r V ice P resid en t\xe2\x80\x99s travel expenses.\n\xe2\x80\x99 S ee 120 C o n g . R ec. 3 5 1 3 9 (1974).\n10 See 119 C o n g . R ec. 2 6 6 0 6 -0 7 (1973).\n" C o n g ress am en d ed th e provision in 1980, Pub. L. N o. 9 6 -1 8 7 , \xc2\xa7\xc2\xa7 105(4), 113, 93 S tat. 1 3 5 4 ,1 3 6 6 (1980),\ng en e ra lly to p ro h ib it a fed eral official from co n v e rtin g co n trib u ted funds fo r h is o r h er personal use. A specific\nex em ption to th is provision also w as added f o r individuals w ho w ere S enators and R epresentatives on January 8,\n1980.\n\n222\n\n\x0cNevertheless, we would caution against complete reliance on \xc2\xa7 439a until\nfurther consideration has been given to the authority under that statute for\npolitical committees to make contributions, and until the matter has been\ncoordinated with the Federal Election Commission. In this connection, the\nFederal Election Commission has authority to render advisory opinions to federal\nofficeholders about \xe2\x80\x9c the application of a general rule of law stated in\xe2\x80\x9d the Federal\nElection Commission Act, of which \xc2\xa7 439a is a part. See 2 U.S.C. \xc2\xa7 437(b). To\nour knowledge, the Commission has not been called upon to and thus has not\nformally addressed the application of \xc2\xa7 439a to gifts made to the President or the\nVice President to defray the expenses of their offices.\nMoreover, even if \xc2\xa7 439a ultimately is to be relied upon to grant gift authority\nfor the President and Vice President, we would advise that guidelines be estab\xc2\xad\nlished for the receipt of contributions under the provision. This will be necessary\nsince the Standards of Conduct regulations applicable to agencies in the Ex\xc2\xad\necutive Office of the President, 3 C.F.R. \xc2\xa7\xc2\xa7 100.735\xe2\x80\x94(1)\xe2\x80\x94(32), were not drafted\nwith the intent of regulating contributions to meet the official expenses of the\nPresident and Vice President. Those regulations as currently drafted might not be\nconsistent with full implementation of \xc2\xa7 439a if that were desired.\nT h eo d o r e B. O lso n\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n223\n\n\x0c'


b'Funds Available for Payment of Natural Resource Damages\nUnder the Oil Pollution Act of 1990\nT he P resident, acting through the D epartm ent of T ransportation, is authorized to use the O il Spill\nL iability T ru st F und to pay the claim s o f Natural R esource T rustees for uncom pensated natural\nresource dam ages in accordance with section 1013 o f the Oil P ollution A ct o f 1990, w ithout the\nneed fo r fu rth er en actm ent o f appropriations.\n\nSeptember 25, 1997\nM e m o r a n d u m O p in io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l\nC iv il D iv is io n\n\nThis responds to your memorandum of May 28, 1997, requesting this Office\nto resolve a dispute among several federal departments concerning section 1012\nof the Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 484, 498 (codi\xc2\xad\nfied at 33 U.S.C. \xc2\xa7\xc2\xa72701-2761 (1994)) (\xe2\x80\x9c O PA \xe2\x80\x9d or \xe2\x80\x9c the Act\xe2\x80\x9d ).1 We conclude\nthat the President, acting through the Department of Transportation, is authorized\nto use the Oil Spill Liability Trust Fund ( \xe2\x80\x9c Fund\xe2\x80\x9d ) under section 1012(a)(4) of\nOPA to pay the claims of Natural Resource Trustees for uncompensated natural\nresource damages in accordance with section 1013 of OPA, without the need for\nfurther appropriation.\nI. BACKGROUND\nA,\nOPA established a comprehensive regulatory framework for a coordinated inter\xc2\xad\ngovernmental response to oil spills that threaten U.S. resources or occur on or\nnear U.S. navigable waters. See 33 U.S.C. \xc2\xa7\xc2\xa72701-2761. A key component of\nthe Act is its provision for the designation o f federal, state, tribal, and foreign\nnatural resource trustees (\xe2\x80\x9c Trustees\xe2\x80\x9d ) who have authority to recover damages for\ninjury to, destruction of, loss of, o r loss of the use of natural resources under\ntheir trusteeship, including the reasonable costs of assessing the damage. Id.\n\xc2\xa7\xc2\xa7 2702(b)(2)(A), 2706(b).2 OPA further provides that the functions of Trustees\nare to assess natural resource damages and to develop and implement plans for\n1 Because this dispute is between execuuve branch departments, and its resolution will affect the position taken\nby the Department o f Justice in litigation, it is appropriate for resolution by this office See Exec Order No 12146,\n3 C .F R . 409 (1980), reprinted in 28 U.SC \xc2\xa7 5 0 9 note (1994), 28 C F.R \xc2\xa7 0 2 5 (1996) The positions asserted\nby the several involved departments are discussed in Section I B, infra\n2See also 33 U.S C \xc2\xa7 2701(20) (1994), which provides.\n\xe2\x80\x98natural resources\xe2\x80\x99 includes land, fish, wildlife, biota, air, water, ground water, dnnking water supplies,\nand other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled\nby the United States (including the resources o f the exclusive econom ic zone), any State or local government\nor Indian tn b e, or any foreign government\n\n188\n\n\x0cFunds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990\n\nthe restoration, rehabilitation, replacement, or acquisition of the equivalent, of the\nnatural resources under their trusteeship. Id. \xc2\xa7 2706(c).\nThe party found responsible for a spill (\xe2\x80\x9c responsible party,\xe2\x80\x9d see id. \xc2\xa72701(32))\nis liable for removal costs and damages specified in the Act. Id. \xc2\xa7 2702(b)(1)(2). Among the damages specified are \xe2\x80\x9c natural resource damages.\xe2\x80\x9d The Act fur\xc2\xad\nther provides that only Trustees, the statutory custodians of the affected natural\nresources, may recover natural resource damages from a responsible party, either\nby settlement or litigation. Id. \xc2\xa7 2702(b)(2)(A).\nSection 1013 of OPA provides the procedural framework for the presentation\nand processing of claims for removal costs or damages. 33 U.S.C. \xc2\xa72713. After\npreparing an assessment of damages, claimants must, in general, first present their\nclaims for removal costs and damages to the responsible party for consideration\nof settlement. If the claim is not settled within 90 days after presentment, the\nclaimant may either sue the responsible party in court or \xe2\x80\x9c present the claim to\nthe [Oil Spill Liability Trust] Fund.\xe2\x80\x9d Id. \xc2\xa7 2713(a), (c)(2). The presentation and\ndisposition of claims against the Fund pursuant to section 1013 is governed by\ndetailed regulations and is subject to administrative adjudication. Id. \xc2\xa7 2713(e);\n33 C.F.R. pt. 136 (1996). In pursuing a claim against the Fund, \xe2\x80\x9c [t]he claimant\nbears the burden of providing all evidence, information, and documentation\ndeemed necessary by the Director, NPFC [National Pollution Funds Center], to\nsupport the claim.\xe2\x80\x9d Id. \xc2\xa7 136.105(a). Among other information, the written claim\nmust include a description of the oil spill and \xe2\x80\x9c the nature and extent of the impact\nof the incident\xe2\x80\x9d on the claimant; a statement of damages claimed; \xe2\x80\x9c [a]n expla\xc2\xad\nnation of how and when the [claimed] damages were caused\xe2\x80\x9d and what steps\nwere taken to mitigate those damages; supporting evidence; a list of relevant wit\xc2\xad\nnesses to the incident and the damages, with a description of each witness\xe2\x80\x99s rel\xc2\xad\nevant knowledge; information confirming that the claim was first submitted to\nthe responsible party; and any other information deemed relevant by the National\nPollution Funds Center ( \xe2\x80\x9c NPFC\xe2\x80\x9d ) of the U.S. Coast Guard. Id. \xc2\xa7 136.105.\nOPA provides that the Oil Spill Liability Trust Fund is \xe2\x80\x9c available to the Presi\xc2\xad\ndent\xe2\x80\x9d for designated categories of payments. 33 U.S.C. \xc2\xa7 2712(a). The Fund,\noriginally created in 1986 as a separate account within the Treasury, has been\nfunded by a flve-cent per barrel fee on domestic and imported oil, by civil and\ncriminal penalties, and by other cost recoveries.3 It is administered by the NPFC\nunder the authority of the Secretary of Transportation. Section 1012(a) of OPA\nauthorizes five separate uses of the Fund, of which the following two lie at the\nheart of this dispute:\nThe Fund shall be available to the President for\xe2\x80\x94\n3 See section 8033(a) o f the Omnibus Budget Reconciliation Act o f 1986, Pub. L No. 99-509, 100 Stat. 1874,\n1959-62 (codified at 26 U.S.C \xc2\xa79509(a) (1994)), 26 U.S C. \xc2\xa7461 l( a H c ) (1994); id \xc2\xa79509(b)(2), (5) (1994)\n\n189\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 21\n\n(2)\nthe payment of costs incurred by Federal, State, or Indian\ntribe trustees in carrying out their functions under section 2706 of\nthis title for assessing natural resource damages and for developing\nand implementing plans for the restoration, rehabilitation, replace\xc2\xad\nment, or acquisition of the equivalent o f damaged resources deter\xc2\xad\nmined by the President to be consistent with the National Contin\xc2\xad\ngency Plan; [and]\n\n(4)\nthe payment of claims in accordance with section 2713 [sec\xc2\xad\ntion 1013 of OPA] of this title for uncompensated removal costs\ndetermined by the President to be consistent with the National\nContingency Plan or uncompen-sated damages.\n33 U.S.C. \xc2\xa7 2712(a)(2), (4).\nFor most of the purposes authorized by section 1012 \xe2\x80\x94 including the payment\nunder section 1012(a)(2) of \xe2\x80\x9c costs incurred\xe2\x80\x9d by domestic Trustees in carrying\nout their functions under section 1006 of OPA \xe2\x80\x94 payments may be made from\nthe Fund \xe2\x80\x9c only as provided in annual appropriation Acts.\xe2\x80\x9d 33 U.S.C. \xc2\xa7 2752(a)\n(1994 & Supp. Ill 1997). Several specified categories of payments, however, may\nbe made directly out of the Fund without the need for further appropriation by\nCongress. One of those excepted categories is the payment of claims pursuant\nto section 1012(a)(4), which authorizes the payment of claims in accordance with\nsection 1013. See OPA \xc2\xa7 6002(b), 33 U.S.C. \xc2\xa7 2752(b).\nThe President has delegated, by Executive Order, the functions vested in him\nrespecting management and use o f the Fund. Exec. Order No. 12777, 3 C.F.R.\n351 (1992) (\xe2\x80\x9c Exec. Order\xe2\x80\x9d ). His functions regarding the payment of removal\ncosts and claims under section 1012(a)(1), (3), and (4) have been delegated to\nthe Secretary o f Transportation (\xe2\x80\x9c the Department in which the Coast Guard is\noperating\xe2\x80\x9d ). Exec. Order \xc2\xa7 7(a)(1)(A), 3 C.F.R. at 357. His functions respecting\nthe paym ent of \xe2\x80\x9c costs incurred\xe2\x80\x9d under section 1012(a)(2), on the other hand,\nhave been delegated \xe2\x80\x9c to the Federal trustees designated in the [National Contin\xc2\xad\ngency Plan].\xe2\x80\x9d Id. \xc2\xa7 7(a)(2), 3 C.F.R. at 357.\nB.\nAs summarized in your memorandum, the Department of Transportation\n( \xe2\x80\x9c D O T\xe2\x80\x9d ) 4 contends that payments from the Fund to federal, state, and Indian\ntribe Trustees for natural resource damages may only be made under the provi\xc2\xad\n4 Except where otherwise specified, we refer collectively herein to the Department of Transportation, the Coast\nGuard, and the National Pollution Funds Center as \xe2\x80\x9c D O T.\xe2\x80\x9d\n\n190\n\n\x0cFunds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990\n\nsions of section 1012(a)(2), and thus require an annual appropriation before they\ncan be made. On the other hand, the Federal agencies designated as Trustees \xe2\x80\x94\nincluding the National Oceanic and Atmospheric Administration ( \xe2\x80\x9c NOAA\xe2\x80\x9d ) of\nthe Department of Commerce, the Department of the Interior, and the Department\nof Defense \xe2\x80\x94 assert that such damages may be compensated, as appropriate, either\nas a \xe2\x80\x9c cost incurred\xe2\x80\x9d under section 1012(a)(2), or as a claim for \xe2\x80\x9c uncompensated\ndamages\xe2\x80\x9d under section 1012(a)(4). Payment under section 1012(a)(2) requires\nan annual appropriation, while payment under section 1012(a)(4) o f a claim, estab\xc2\xad\nlished in accordance with section 1013, does not.\nBefore reaching its current position on Trustee access to the Fund, the Coast\nGuard issued an \xe2\x80\x9c interim rule\xe2\x80\x9d governing the filing of claims authorized to be\npresented against the Fund under section 1013 of OPA. See Claims under the\nOil Pollution Act of 1990, 57 Fed. Reg. 36,314 (1992) (codified at 33 C.F.R.\npt. 136 (1996)). With respect to claims against the Fund for natural resource dam\xc2\xad\nages, the Coast Guard regulations provide in relevant part: \xe2\x80\x9cAuthorized claimants.\n(a) Claims for uncompensated natural resource damages may be presented by an\nappropriate natural resources trustee.\xe2\x80\x9d 33 C.F.R. \xc2\xa7 136.207(a). Thus, the interim\nregulations characterize natural resource Trustees as \xe2\x80\x9c authorized claimants\xe2\x80\x9d for\npurposes of filing claims against the Fund pursuant to section 1013. The rule\ngoes on to provide detailed requirements for a Trustee\xe2\x80\x99s natural resource damages\nclaims against the Fund, including specific requirements for submitting \xe2\x80\x9c the\nassessment and restoration plans which form the basis of the claim,\xe2\x80\x9d id.\n\xc2\xa7 136.209(a).\nAlthough the interim rule suggests that Trustees may pursue claims against the\nFund for natural resource damages, the preamble to the rule explains that it is\n\xe2\x80\x9c an interim measure needed primarily to explain how eligible claimants may file\na claim against the [Fund],\xe2\x80\x9d and that \xe2\x80\x9c a more comprehensive rule may be devel\xc2\xad\noped and published for public comment.\xe2\x80\x9d 57 Fed. Reg. at 36,314. The preamble\nto the rule further explains:\nLegal issues concerning whether, under section 1013, Federal,\nState or Indian tribe trustees can claim against the Fund for natural\nresources damages and whether Federal agencies can claim against\nthe Fund for any costs or damages have been raised. These issues\nare presently under review. This interim rule does not resolve these\nissues and leaves the matter open for future decision.\nId. at 36,315. Accordingly, little guidance can be taken from the only imple\xc2\xad\n\nmenting regulations promulgated to date.\nIn an attempt to resolve the question left open by the interim rule, in December\nof 1993, the Coast Guard asked the Comptroller General for an opinion addressing\nwhether Trustees could present claims against the Fund under section 1012(a)(4).\n191\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 21\n\nIn response, the Comptroller General issued an opinion concluding that \xe2\x80\x9c natural\nresources trustees may be reimbursed from the Fund for costs incurred for damage\nassessments and the development and implementation of restoration plans only\nunder section 1012(a)(2) of the [OPA], subject to the annual appropriations pro\xc2\xad\ncess. Section 1012(a)(4) o f OPA is not available to natural resources trustees for\nclaims for damages.\xe2\x80\x9d M atter of U.S. Coast G u ard\xe2\x80\x94 O il Spill Liability Trust Fund,\nB\xe2\x80\x94255979, 1995 WL 632510, at *1 (C.G. Oct. 30, 1995) ( \xe2\x80\x9c CG Op.\xe2\x80\x9d ).5\nThe Coast Guard then sent letters to federal and other Trustees stating that the\nComptroller General\xe2\x80\x99s opinion precluded the Coast Guard from entertaining\nTrustee claims against the Fund under section 1012(a). The Coast Guard stated\nin one such letter:\nAs a consequence of the Comptroller General\xe2\x80\x99s decision, the\nTrustees can no longer rely upon OPA\xe2\x80\x99s claims process as a backup\nshould responsible parties be unavailable to pay for natural resource\ndamages resulting from their oil spills. And, the National Pollution\nFunds Center has no choice but to return all natural resource dam\xc2\xad\nage claims to their submitters without adjudication. Those claims\nheld in abeyance pending the Comptroller General\xe2\x80\x99s decision will\nbe returned shortly under a separate cover.6\nSubsequently, the Coast Guard has declined to entertain section 1013 claims\nagainst the Fund made by Trustees seeking compensation for natural resource\ndamages. The Coast Guard\xe2\x80\x99s rejection of such claims is presently being contested\nin litigation brought by State Trustees who have been denied their claims against\nthe Fund. See New York v. Oil S pill Liability Trust Fund, No. 96 Civ. 1951\n(E.D.N.Y. filed Apr. 24, 1996); W etherell v. National Pollution Funds Center,\nNo. 4:96CV517/MP (N.D. Fla. filed Dec. 6, 1996). You seek resolution of the\ninter-agency dispute over the proper interpretation of section 1012\xe2\x80\x99s provisions\nfor allowable payments from the Fund in order to formulate the legal position\nof the United States in the litigation involving Trustees\xe2\x80\x99 access to the Fund.\nn . ANALYSIS\nA.\nThe starting point for resolving disputes concerning the interpretation of a\nstatute is, of course, the text of the statute itself. See United States v. Ron Pair\n5 A lthough the opinions and legal interpretations o f the Comptroller General often provide helpful guidance on\nappropriation matters, they are not binding upon departments or agencies of the executive branch. See Bowsher\nv Syrmr, 478 U.S. 714, 727-32 (1986)\n6 Letter for Ms Debra Preble, from Daniel F Sheehan, Director, National Pollution Funds Center, Re. Natural\nResource Damage Claims at 1 (Dec 21, 1995)\n\n192\n\n\x0cFunds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990\n\nEnterprises, Inc. 489 U.S. 235, 241 (1989). Here, the text of the statute seems\nplainly to authorize natural resource trustees to pursue claims for natural resource\ndamages and to recover directly from the Fund, without requiring a separate appro\xc2\xad\npriation, where they have established a valid claim under section 1013 of the\nAct. Section 1012(a)(4) of the Act authorizes \xe2\x80\x9c the payment of claims in accord\xc2\xad\nance with section [1013 of the Act] for uncompensated . . . damages,\xe2\x80\x9d 33 U.S.C.\n\xc2\xa7 2712(a)(4), and section 6002 of the Act provides that a separate appropriation\nis not required for payments made pursuant to section 1012(a)(4), see 33 U.S.C.\n\xc2\xa72752. A \xe2\x80\x9c claim \xe2\x80\x9d is defined to include a written request for payment \xe2\x80\x9c for com\xc2\xad\npensation for damages,\xe2\x80\x9d id. \xc2\xa72701(3), and, in turn, a \xe2\x80\x9c \xe2\x80\x98claimant\xe2\x80\x99 means any\nperson or government who presents a claim for compensation\xe2\x80\x9d under the Act,\nid. \xc2\xa72701(4) (emphasis added).7 Finally, the term \xe2\x80\x9c damages\xe2\x80\x9d is defined to\ninclude damages to \xe2\x80\x9c natural resources, including the reasonable costs of assessing\nthe damage, which shall be recoverable by a United States trustee, a State trustee,\nan Indian tribe trustee, o r a foreign trustee.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa72701(5), 2702(b)(2)(A)\n(emphasis added).\n\nCongress expressly authorized a claimant under section 1013 to present a claim\nto the Fund in three separate provisions: once in section 1013(c), once in section\n1013(d), and once again in section 1012(a)(4). None of those provisions indicate,\nor in any way suggest, that Trustees are excluded from the category of claimants\nto which they apply. Nor is there any ambiguity as to which provision of section\n1012 governs the payment of such claims. Section 1012(a)(4) expressly governs\n\xe2\x80\x9c the payment of claims in accordance with section [1 0 1 3 ]\xe2\x80\x9d (emphasis added),\nwhereas section 1012(a)(2) makes no reference to the section 1013 claims proce\xc2\xad\ndure.\nThe various provisions authorizing payments from the Fund under section 1012,\nmoreover, were drawn with considerable precision. For example, Congress speci\xc2\xad\nfied that only costs incurred by \xe2\x80\x9c Federal, State, or Indian tribe trustees\xe2\x80\x9d \xe2\x80\x94 but\nnot foreign trustees \xe2\x80\x94 could be paid pursuant to section 1012(a)(2). Had the\ncongressional drafters similarly intended to exclude Trustees from the class of\nclaimants eligible to receive payments on their claims under section 1012(a)(4) \xe2\x80\x94\na class that would naturally encompass Trustees under the straightforward defini\xc2\xad\ntions of the statute \xe2\x80\x94 it seems unlikely that they would have left such a significant\nexclusion to be inferred. Rather, the exclusion of Trustees\xe2\x80\x99 claims could have\nbeen readily and unambiguously achieved by inserting a single phrase in sub\xc2\xad\nsection (a)(4) \xe2\x80\x94 by selectively authorizing, for example, \xe2\x80\x9c (4) the payment of\nclaims, other than payments otherwise authorized under subparagraph (a)(2) of\nthis section , in accordance with section 2713 of this title.\xe2\x80\x9d Congress refrained,\nhowever, from drawing any such distinction.\n7 It does not appear to be in dispute that OPA\xe2\x80\x99s definition o f \xe2\x80\x9c claimant\xe2\x80\x9d includes Trustees who present a claim\nfor natural resource damages compensation under section 1013 o f the Act\n\n193\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nThe text of OPA, accordingly, seems clearly to provide that the Fund may be\nused to pay the claims of Trustees, pursuant to the provisions of sections\n1012(a)(4) and 1013, without the requirement for annual appropriations.\n\nB.\nDOT interprets the relevant provisions of OPA in a different manner. DOT\nasserts that, because section 1012(a)(2) of OPA separately authorizes Fund pay\xc2\xad\nments to Trustees for \xe2\x80\x9c costs incurred,\xe2\x80\x9d and because such costs overlap to a large\nextent with the removal costs and uncompensated damages that may form the\nbasis of a claim under section 1012(a)(4), there is a conflict or inconsistency\nbetween the two provisions if the latter also applies to Trustees. This asserted\ninconsistency derives from the related provisions of section 6002, 33 U.S.C.\n\xc2\xa72752, which make \xe2\x80\x9c costs incurred\xe2\x80\x9d payments under section 1012(a)(2) contin\xc2\xad\ngent on further appropriations, whereas the payment of perfected claims under\nsection 1012(a)(4) may be paid directly from the Fund without more. In essence,\nDOT contends that Congress could not have intended to exempt Fund payments\nto Trustees under subsection (a)(4) from the fiscal discipline of the annual appro\xc2\xad\npriations requirement that applies to payments for their costs incurred under sub\xc2\xad\nsection (a)(2).\n\n.\n\n1\n\nDOT first argues that section 1012(a)(4)\xe2\x80\x99s explicit provision for use of the Fund\nto pay claims presented by Trustees and other claimants pursuant to section 1013\nmust give way to principles of appropriations law applied in rulings of the Comp\xc2\xad\ntroller General. Letter for Mr. Charles A. Bowsher, Comptroller General, from\nAdm. J. W. Kime, Commandant, U.S. Coast Guard at 3 (Dec. 6, 1993) (\xe2\x80\x9c Coast\nGuard Ltr.\xe2\x80\x9d ). Invoking the analysis used by the Comptroller General in his 1995\nruling in this dispute, DOT likens the payment authorization of section 1012(a)(4)\nto a general appropriation which cannot be used to fund payments covered by\na more specific appropriation, in the form of section 1012(a)(2)\xe2\x80\x99s provision for\npayment of costs incurred by Trustees. Coast Guard Ltr. at 2. Specifically, DOT\nrelies upon the following principle o f statutory construction applied by the Comp\xc2\xad\ntroller General in his opinion on access to the Fund:\nWhere there is a seeming conflict between a general provision and\na specific provision and the general provision is broad enough to\ninclude the subject to which the specific provision relates, the spe\xc2\xad\ncific provision should be regarded as an exception to the general\nprovision so that both may be given effect, the general applying\nonly where the specific provision is inapplicable.\n194\n\n\x0cFunds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f J990\n\nCG Op. at 4 (quoting B-163375, 1971 WL 5205 (C.G. Sept. 2, 1971)).\nInitially, we note that the specific/general principle relied upon by DOT is but\na canon of statutory construction, which, like other such rules, must yield to supe\xc2\xad\nrior evidence of legislative intent. See Connecticut N a t\xe2\x80\x99I Bank v. Germain, 503\nU.S. 249, 253 (1992); Rubin v. United States, 449 U.S. 424, 430 (1981). Here,\nnot only the plain meaning of the statute, but other indicia of statutory intent\ncounsel against the construction proposed by DOT. The principal basis preferred\nby DOT for precluding federal, state, and Indian tribe trustees from recovering\npursuant to section 1012(a)(4), for example, is that they are expressly entitled\nto recover costs incurred pursuant to section 1012(a)(2). That section, however,\nby its own terms does not apply to foreign trustees, and thus, under DOT\xe2\x80\x99s rea\xc2\xad\nsoning, foreign trustees may still recover under section 1012(a)(4), without the\ndiscipline of a further appropriation. It seems highly improbable, however, that\nCongress intended to provide foreign trustees more liberal access to the Fund than\nit provided to domestic trustees.\nThe most fundamental difficulty with DOT\xe2\x80\x99s argument, however, concerns its\ncritical premise: we do not find an irreconcilable conflict or inconsistency, see\nCG Op. at 4, between the payment provisions of subsections (a)(2) and (a)(4),\neven taking into account their relationship with the appropriations provisions of\nsection 6002 o f the Act. Absent such a conflict or inconsistency, or other compel\xc2\xad\nling indicia of contrary congressional intent, there is no need or justification to\ndepart from a straightforward application o f the statutory text.\nAlthough compensable \xe2\x80\x9c costs incurred\xe2\x80\x9d under subsection (a)(2) concededly\noverlap to a large extent with the \xe2\x80\x9c uncompensated damages\xe2\x80\x9d ttiat may be claimed\nunder subsection (a)(4),8 there are a number of important distinctions between\nthe two payment provisions. First, the Trustees\xe2\x80\x99 access to the Fund under section\n1012(a)(4) is specifically limited to those claims that have been pursued \xe2\x80\x9c in\naccordance with section [1013].\xe2\x80\x9d That section requires claimants to first present\ntheir claims to the responsible party and to wait at least 90 days before submitting\na claim to the Fund in order to provide reasonable opportunity for settlement.\n33 U.S.C. \xc2\xa7 2713(a), (c). Moreover, the payment of claims under section 1013\nis subject to detailed regulations governing the presentation, filing, processing,\nsettlement, and adjudication of such claims. Id. \xc2\xa7 2713(e); 33 C.F.R. pt. 136. Those\nregulatory requirements include, inter alia, the preparation and presentation of the\noften costly assessment and restoration plans which form the basis of the claim;\na description o f damages claimed by category; documented costs and cost esti\xc2\xad\nmates for the plan; evidence relating to the spill and the damages; witness lists\nand descriptions of their knowledge of the incident; certification of the accuracy\nof claims submitted to the Fund; and certification as to whether the assessment\nwas conducted in accordance with applicable provisions of the natural resources\ndamage assessment regulations. Id. \xc2\xa7\xc2\xa7 136.105, 136.209. Only if the NPFC deter\xc2\xad\n8 For purposes o f this opinion, we need not decide whether the overlap is complete or only partial.\n\n195\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nmines, after review of the claim, that the claimant has carried its burden of \xe2\x80\x9c pro\xc2\xad\nviding all evidence, information, and documentation deemed necessary . . . to\nsupport the claim \xe2\x80\x9d is the claimant entitled to payment. Id. \xc2\xa7 136.105(a).9\nConsequently, a Trustee\xe2\x80\x99s claim that has been prepared and documented\n(including assessment of damages), presented for settlement to the responsible\nparty, and otherwise perfected in accordance with section 1013\xe2\x80\x99s procedures\ncannot be equated with a direct application for costs incurred under subsection\n(a)(2).10 Unlike claims presented under subsection (a)(4), a Trustee seeking pay\xc2\xad\nment under subsection (a)(2) need not first present a claim to a responsible party\nin order to allow the opportunity for settlement. Nor are subsection (a)(2) payment\nrequests governed by 33 C.F.R. pt. 136\xe2\x80\x99s detailed evidentiary and adjudication\nrequirements, which in terms apply only to \xe2\x80\x9c claims authorized to be presented\nto the [Fund] under section 1013 of [OPA].\xe2\x80\x9d 33 C.F.R \xc2\xa7 136.1(a)(1) (1996)\n(emphasis added). These requirements, moreover, are important to the overall\nenforcement scheme established under OPA. The 90-day waiting period, for\nexample, was designed to encourage settlement.11 Similarly, the evidentiary and\nadjudicatory provisions set forth in the regulations governing claims presented\nto the Fund promote Fiscal discipline.12\nIn sum, the submission of a subsection (a)(4) claim to the NPFC by a Trustee\ndiffers in significant respects from a request for payment under subsection (a)(2).\nAccordingly, we find no irreconcilable conflict between the provision for these\ntwo categories o f payments to Trustees.\n\n9 For a case illustrating the application of the 33 C F R pt. 136 regulatory requirements for presentment of a\nclaim under section 1013, see Johnson v Colonial Pipeline Co., 830 F. Supp 309, 311 (E D Va. 1993) (property\now ner\xe2\x80\x99s claim for oil spill damages held inadequate for compliance with the Coast Guard\xe2\x80\x99s 33 C F R pt 136 claims\nregulations and section 1013 requirements, \xe2\x80\x9c (t]he need for specificity in OPA claims is underscored by the [Coast\nGuard] regulations\nfor filing such claims against the OPA Fund.\xe2\x80\x9d ).\nJ0This basic distinction between the payment o f costs outside the claims procedure and the payment of claims\nperfected pursuant to section 1013 was recognized in OPA\xe2\x80\x99s legislative history. Thus, the House Report characterized\nthe kind o f cost reimbursement that could be obtained outside the claims procedure as \xe2\x80\x9c direct uses . . which\ncan be paid from the Fund prior to the presentment and payment o f a claim under section 104 of this Act " H R\nRep No. 101-242, pt. 2, at 64 (1989) The Senate Report also recognized this distinction between the tw o modes\no f payments from the Fund. See S. Rep No 101-94, at 10 (1989), reprinted in 1990 U S C C A N 722, 731\n11 As recognized by the Eleventh Circuit in Boca Ciega Hotel, Inc v. Bouchard Transp. Co., 51 F 3 d 235 (1 Ith\nCir 1995), a key purpose o f O PA \xe2\x80\x99s section 1013 claims procedure \xe2\x80\x94 and, in particular, the 90-day waiting penod \xe2\x80\x94\n\xe2\x80\x9c was to temper the A ct\xe2\x80\x99s increased liability with a congressional desire to encourage settlement and avoid litigation \xe2\x80\x9d\nId at 238-39. A ccord Johnson, 830 F. Supp. at 310-11 (\xe2\x80\x9c The purpose of the claim presentation procedure is to\npromote settlement and avoid litigation \xe2\x80\x9d ).\n12 W e acknowledge that payments authorized under section 1012(a)(2) are also subject to certain statutory and\nregulatory requirements, notably the requirement that actions be taken in a manner \xe2\x80\x9c consistent with the National\nContingency Plan.\xe2\x80\x9d 33 U S C. \xc2\xa7 2712(a)(2), see also 15 C.F R. pi. 990 (1996) (NOAA regulations governing natural\nresource dam age assessments as required by section 1006(e)(1) of O PA, 33 U S.C \xc2\xa7 2706(e)(1)) These requirements\ncannot, however, be equated with the mandatory claim s exhaustion requirements o f section 1013 or the prerequisites\nfor the presentation, proof, and successful adjudication of a claim under the Coast G uard\xe2\x80\x99s 33 C F R pt 136 regula\xc2\xad\ntions.\n\n196\n\n\x0cFunds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990\n\n2.\nIn a related argument, DOT and the Comptroller General\xe2\x80\x99s opinion assert that\nallowing Fund payments to Trustees under section 1012(a)(4) would effectively\nrender meaningless the provision for payment of their \xe2\x80\x9c costs incurred\xe2\x80\x9d under\nsection 1012(a)(2). CG Op. at 4\xe2\x80\x945. By this reasoning, Trustees would invariably\nbypass the subsection (a)(2) mechanism in favor of the claims provision of sub\xc2\xad\nsection (a)(4) because the latter allows the direct payment of damages without\nthe need for further congressional appropriation. This argument is premised on\nthe interpretive canon providing that a statute should not be interpreted in a way\nthat renders portions of it meaningless or ineffective. See Department o f Revenue\nv. ACF Industries, Inc., 510 U.S. 332, 340-41 (1994).\nDOT and the Comptroller General, however, have failed to demonstrate that\nsubsection (a)(2) would be rendered meaningless if Trustees were permitted access\nto the Fund under subsection (a)(4). Before pursuing a claim under section 1013,\nfor example, a claimant must generally present the claim to the responsible party\nand wait the required 90 days. When submitted, moreover, the claim must be\nsupported by extensive assessment and documentation of the nature and extent\nof costs and damages, accompanied by certification of the accuracy and integrity\nof the claim as presented. See 33 C.F.R. \xc2\xa7\xc2\xa7 136.105 to 136.113, 136.209. Payment\no f the claim must then await NPFC review, evaluation, and adjudication.\nCongress might well have contemplated occasions when Trustees would be\nbetter served by seeking payments under subsection (a)(2), rather than comply\nwith these substantial requirements applicable to claims under subsection (a)(4),\neven though payment under subsection (a)(2) would require a congressional appro\xc2\xad\npriation. For example, a Trustee with limited resources might find it preferable\nto obtain payment for at least a portion of its allowable costs under subsection\n(a)(2) rather than complying with the procedural requirements for the presentation\nand adjudication of a claim against the Fund under section 1012(a)(4). Addition\xc2\xad\nally, if a Trustee\xe2\x80\x99s claim is denied by the NPFC under subsection (a)(4) \xe2\x80\x94 due\nto noncompliance with the 33 C.F.R. pt. 136 procedural requirements, for\nexample, see 33 C.F.R. \xc2\xa7 136.105(a) \xe2\x80\x94 it could have a basis for pursuing those\nportions of its claim that constitute costs incurred under the provisions of sub\xc2\xad\nsection (a)(2). Indeed, if Congress were to make available a significant portion\nof the Fund for payments under subsection (a)(2) in an annual appropriations act,\nsee 33 U.S.C. \xc2\xa7 2752(a), it seems unlikely that eligible Trustees would bother\nto pursue payment under sections 1012(a)(4) and 1013 for costs otherwise recover\xc2\xad\nable under subsection (a)(2) pursuant to the appropriation.\nAccordingly, we cannot conclude that the reading of the Act proposed by DOT\nis necessary to avoid rendering subsection (a)(2) meaningless.\n197\n\n\x0cOpinions o f the O ffice o f Legal Counsel m Volume 21\n\n3.\nDOT also argues that the legislative history of OPA supports its understanding\nof the Trustees\xe2\x80\x99 access to the Fund. Memorandum for the Commander, National\nPollution Funds Center, from Chief, General Law Division, U.S. Coast Guard at\n4 (Oct. 27, 1992); see also CG Op. at 4. The pertinent legislative history, however,\nfails to provide persuasive support for DOT\xe2\x80\x99s position. The limited evidence of\ncongressional intent that is available suggests that Congress intended to permit\nTrustees to obtain compensation directly from the Fund for natural resource dam\xc2\xad\nages under section 1013 of the Act. Moreover, given the great significance of\na conclusion that Trustees may not obtain such compensation, the very paucity\nof evidence supporting the DOT construction of the statute, standing alone, casts\ndoubt on that construction.\nBecause the provision excluding the payment of claims pursuant to section\n1012(a)(4) from the annual appropriations requirement was first introduced as part\nof the Conference substitute version of the bill, our review of the legislative his\xc2\xad\ntory must focus on the Conference Report and subsequent debate.13 In describing\nsection 1012(a)(4), the OPA Conference Report stated that \xe2\x80\x9c amounts are available\nunder category (4), without further appropriation, to p a y uncompensated claims\nin accordance with section 1013." H.R. Conf. Rep. No. 101-653, at 114 (1990),\nreprinted in 1990 U.S.C.C.A.N. 779, 792 ( \xe2\x80\x9c Conference Report\xe2\x80\x9d ) (emphasis\nadded). In differentiating the uses o f the Fund authorized under subsections (a)(1)\nthrough (3) of section 1012, which were made subject to appropriations, the Con\xc2\xad\nference Report stressed that \xe2\x80\x9c [t]hese amounts may be obligated by the Federal\nofficial or officials designated under the regulations authorized in subsection (c),\nand are not necessarily subject to the claims procedures in section 1013.\xe2\x80\x9d Id.\n\nat 113, reprinted in 1990 U.S.C.C.A.N. at 792. (emphasis added). Thus, the Con\xc2\xad\nferees recognized the distinguishing characteristic warranting payment of claims\nunder section 1012(a)(4) without a requirement for further appropriation \xe2\x80\x94 i.e.,\nsuch payments were predicated on prior compliance with the section 1013 claims\nprocedure.\nThe Conference Report also contained a separate explanation of the section 1013\nclaims procedure and how it was adopted by the Conference. Id. at 117, reprinted\nin 1990 U.S.C.C.A.N. at 795. The explanation states, \xe2\x80\x9c [i]f full compensation is\nnot available to settle a claim presented in accordance with this section, a claim\nfor uncompensated removal costs and damages may be presented to the Fund.\xe2\x80\x9d\nId. This explanation contains no suggestion that a claim for damages presented\n13 It should also be noted, however, that the legislative history preceding the Conference Report is consistent\nwith the view that Congress intended that Trustees should be able to receive compensation from the Fund pursuant\nto the section 1013 claim s process See, e g , S R ep No 101-94, at 10 (1989), reprinted in 1990 U .S C .C A N\n722, 731 ( \xe2\x80\x9c the Fund is to assure prompi access to sufficient sums to pay all removal costs and restoration o f\nnatural resource dam ages\xe2\x80\x9d ) (emphasis added); H .R. Rep. No 101-242, pt 2, at 35 (explaining that \xe2\x80\x9c all claimants,\nwhether governmental or individual,\xe2\x80\x9d would be ab le to submit their claims to the Fund following exhaustion of\nthe settlement provisions and \xe2\x80\x9c recover in full for a broad list o f clearly spelled out damages\xe2\x80\x9d )\n\n198\n\n\x0cFunds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990\n\nto the Fund by Trustees would be treated any differently than one presented by\nany other claimant. Given the fact that Trustees are the only claimants able to\nassert natural resource damages claims under section 1013, and given that prompt\ncompensation for natural resource damages was a paramount concern of the legis\xc2\xad\nlation, it would be surprising for the Conferees to use such unqualified language\nif they intended to bar Trustees from obtaining compensation from the Fund on\ntheir claims unless an annual appropriation was enacted.\nAdditionally, the floor debates on the Conference Report reflect the fundamental\nobjective that the Fund \xe2\x80\x9c should be available for prompt, adequate compensation\nto oilspill victims without having to endure endless and costly litigation.\xe2\x80\x9d 14 136\nCong. Rec. 22,289 (1990) (remarks of Rep. Stangeland). Similarly, in urging adop\xc2\xad\ntion of the Conference Report on the House floor, the House sponsor of the bill,\nRepresentative Jones, explained as follows:\nFinally, we make it easier for victims of oilspills to recover for\neconomic damages, natural resource damages, subsistence loss,\nand others. They can seek reimbursement from the spiller or\ndirectly from the $1 billion Federal trust fund.\n\n136 Cong. Rec. at 22,285 (emphasis added) (remarks of Rep. Jones). Likewise,\nin further House debate on the Conference Report, Representative Fields observed:\n[T]his landmark legislation provides that those injured by an oilspill\nwill be fully and swiftly compensated for their losses \xe2\x80\x94 such as\nproperty damage, lost income, damage to natural resources, and\nlost business opportunities. Once this legislation is signed into law,\nthose adversely affected will not have to wait years in order to\nrecover their losses. In fact, if an agreement with a spiller cannot\nbe reached within 90 days, injured parties will be compensated from\nthe $1 billion oil industry-financed fund and the fund will seek\nreimbursement from the spiller later.\n136 Cong. Rec. at 22,291 (emphasis added) (remarks of Rep. Fields). A similar\nunderstanding of the Conference Substitute was expressed in debate in the Senate.\nSee id. at 21,718 (\xe2\x80\x9c we include [a] $1 billion industry-financed cleanup fund, and\nfull compensation for natural resource damage\xe2\x80\x9d ) (remarks of Sen. Kerry); id. at\n14 Legislative history preceding the Conference Report also stresses this purpose. As stated in the Senate Committee\nReport on OPA.\nOne of the purposes o f the Fund is to provide a source o f money for immediate cleanup activities or\ndamage compensation in the event a spiller does not act promptly. In such a case, the Fund w ould be\nused for removal costs and would be available fo r prompt damage compensation\nS. Rep. No 101-94, at 5, reprinted in 1990 U .S C C .A .N . at 727 (emphasis added) The Senate Report further\nstated that the Fund\xe2\x80\x99s availability for such prompt damage compensation extended to natural resource dam ages claims.\nId at 10, reprinted in 1990 U.S.C C.A.N. at 731\n\n199\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\n21,716 (to compensate Federal agencies, States and citizens for damages from\noil spills, \xe2\x80\x9c the legislation makes available $1 billion \xe2\x80\x94 from a fee on the oil\nindustry \xe2\x80\x94 to pay for spills where the polluter cannot be found, cannot pay, or\nwhere liability limits have been reached\xe2\x80\x9d ) (remarks of Sen. Baucus).\nThese statements demonstrate that providing compensation for damages to nat\xc2\xad\nural resources was a central purpose of OPA and that Congress envisioned that\npayment of such claims would occur within the comprehensive framework estab\xc2\xad\nlished in the Act. Against this backdrop, it seems unlikely that Congress would\nhave precluded Trustees from pursuing these claims under section 1013 without\nany reference in the text or legislative history to such an important limitation.\nWe recognize that portions of O PA \xe2\x80\x99s legislative history demonstrate that Con\xc2\xad\ngress sought to limit expenditures under OPA by imposing substantial limits on\npayments from the Fund through the appropriation restrictions of section 6002.\nSee CG Op. at 3. For example, during debate on the Jones Amendment to the\nHouse bill, which first subjected most payments from the Fund to the appropria\xc2\xad\ntions process, Representatives Jones and Panetta both expressed concern regarding\nthe bill\xe2\x80\x99s direct spending implications as scored by the Congressional Budget\nOffice. 135 Cong. Rec. 28,258-59 (1989). As Representative Panetta explained,\nthe Jones Amendment was intended to address such concerns:\nThe effect of this amendment would be, then, to reduce the direct\nspending authorized in the bill to $1 million per year, instead of\nthe $114 million in the bill as reported. This is critical, in terms\nof controlling Federal spending.\nId. at 28,259 (remarks of Rep. Panetta). Had such comments reflected congres\xc2\xad\n\nsional understanding of the intended effect of the appropriations restrictions ulti\xc2\xad\nmately enacted under section 6002, they would arguably provide some support\nfor DO T\xe2\x80\x99s contentions that permitting Trustee claims to be paid from the Fund\nwithout further appropriation conflicts with fiscal restraint objectives underlying\nthe measure.\nThe remarks of Representatives Jones and Panetta, however, were made before\nthe Conference Committee modified the Jones Amendment to provide explicitly\nthat the payment of claims from the Fund pursuant to section 1012(a)(4) of the\nAct would not require a further appropriation. Rather, the remarks in question\nwere aimed at a fundamentally different provision and could not reflect congres\xc2\xad\nsional understanding or intent with respect to the substantially different (and less\nrestrictive) appropriations provisions ultimately enacted in section 6002.\n\n4.\nFinally, it has been argued that congressional inaction with respect to a subse\xc2\xad\nquently proposed amendment intended to overturn the Comptroller General\xe2\x80\x99s\n200\n\n\x0cFunds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990\n\ninterpretation of OPA\xe2\x80\x99s Fund access provisions should be regarded as a form of\nlegislative ratification of that interpretation. We do not find this line of reasoning\npersuasive here for a number of reasons.\nThis argument invokes the Supreme Court\xe2\x80\x99s approach in cases such as United\nStates v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), where the Court\nexplained:\nAlthough we are chary of attributing significance to Congress\xe2\x80\x99\nfailure to act, a refusal by Congress to overrule an agency\xe2\x80\x99s\nconstruction of legislation is at least some evidence of the reason\xc2\xad\nableness of that construction, particularly where the administrative\nconstruction has been brought to Congress\xe2\x80\x99 attention through legis\xc2\xad\nlation specifically designed to supplant it.\nId. at 137; Bob Jones University v. United States, 461 U.S. 574, 599-600 (1983)\n\n(although \xe2\x80\x9c [n]onaction by Congress is not often a useful guide,\xe2\x80\x9d inaction fol\xc2\xad\nlowing prolonged and extensive congressional consideration of legislative pro\xc2\xad\nposals to overturn an administrative interpretation may produce \xe2\x80\x9c unusually\nstrong\xe2\x80\x9d evidence of legislative acquiescence).\nThe cases ascribing significance to legislative inaction are generally premised\nupon informed congressional acquiescence in a longstanding interpretation by the\nexecutive branch agency charged with administering the statute in question. In\nBob Jones University, for example, the Court invoked the principle only after\nstressing that \xe2\x80\x9c for a dozen years Congress has been made aware \xe2\x80\x94 acutely\naware \xe2\x80\x94 o f the IRS rulings o f 1970 and 1971.\xe2\x80\x9d 461 U.S. at 599. Here, the ruling\nin which Congress allegedly acquiesced was considered only by a committee of\nCongress in early 1996, only a few months after it had been issued in October,\n1995, by the Comptroller General. Thus, the circumstances posed here simply\ndo not fit the pattern of the leading cases finding persuasive evidence of acquies\xc2\xad\ncence by inaction.15\nMoreover, congressional attention to the proposal that would have effectively\nnullified the Comptroller General\xe2\x80\x99s ruling was not only very brief in duration but\nlimited in nature. The amendment in question, originally proposed as section 204\nof S. 1730 during the 104th Congress, would have added section 1012(a)(2) to\nthe existing Fund payment provisions exempted from section 6002\xe2\x80\x99s subsequent\nl5The limited congressional attention to the Comptroller General opinion at issue here presents the same consider\xc2\xad\nations addressed by the court in Lanehart v Horner, 818 F 2 d 1574 (Fed. C ir 1987), where the court rejected\na similar legislative ratification argument concerning an administrative interpretation of federal firefighters\xe2\x80\x99 overtime\npay under the Fair Labor Standards Act As the court stated:\nWe find this argument singularly unpcrsuasive in the context of this case. In the cited cases, the issue\ninvolved \xe2\x80\x9c considerable public controversy,\xe2\x80\x9d or Congress had a \xe2\x80\x9c prolonged and acute awareness\xe2\x80\x9d o f the\nimportance of the issue. Bob Jones, 461 U.S. at 601, 103 S. Ct at 2033. The overtime pay of firefighters\ndid not rise to these levels in Congress.\nId. at 1579 (citation omitted)\n\n201\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nappropriations requirement. It would thus have removed the crucial premise to\nthe Comptroller General\xe2\x80\x99s decision and would have eliminated any doubt that\nTrustees could recover natural resource damages from the Fund without further\nappropriation. However, that amendment was modified by the Senate Committee\non Environment and Public Works, which approved and reported S. 1730 with\nan amendment to section 6002 that did not include the appropriations exemption\nfor section 1012(a)(2) and thus did not nullify the Comptroller General\xe2\x80\x99s opinion.\nSee S. Rep. No. 104-292, at 31-32 (1996). In any event, however, S. 1730 was\nnever taken up by the full Senate or the House. Consequently, congressional\nconsideration of the proposal to override the Comptroller General\xe2\x80\x99s interpretation\nwas apparently limited to action on a single amendment by a single committee\nof the Senate.16\nIn Bob Jones University, the Court departed from the general ru le 17 that\ncongressional inaction \xe2\x80\x9c is not often a useful guide\xe2\x80\x9d only after stressing that \xe2\x80\x9c few\nissues have been the subject of more vigorous and widespread debate and discus\xc2\xad\nsion in and out of Congress\xe2\x80\x9d than the educational segregation issue implicated\nby the IRS ruling under consideration there. 461 U.S. at 599. In light of the\nlengthy and widespread congressional exposure to legislation concerning that\nruling, the Court observed:\nIt is hardly conceivable that Congress \xe2\x80\x94 and in this setting, any\nMember of Congress \xe2\x80\x94 was not abundantly aware of what was\ngoing on. In view of its prolonged and acute awareness of so impor\xc2\xad\ntant an issue, Congress\xe2\x80\x99 failure to act on the bill proposed on this\nsubject provides added support for concluding that Congress\nacquiesced in the IRS rulings in 1970 and 1971.\nId. at 600-01.\n\nHere, the record does not demonstrate anything like the prolonged, acute, and\nwidespread congressional consideration of the Comptroller General\xe2\x80\x99s 1995 opinion\nthat provides the necessary justification for ascribing significance to congressional\naction under the holding of Bob Jones University. See also Missouri v. Andrews,\n787 F.2d 270, 287 (8th Cir. 1986) (rejecting argument that failure to amend statute\nratified agency\xe2\x80\x99s interpretation of statute where the \xe2\x80\x9c record fails to show the\ndegree of congressional approval necessary to override the intent of the . . . Con\xc2\xad\ngress\xe2\x80\x9d ), a ff\xe2\x80\x99d sub nom. ETSI Pipeline Project v. Missouri, 484 U.S. 495 (1988).\nMoreover, the interpretation at issue here was not longstanding and, indeed, was\nnever incorporated in the governing agency regulations. Finally, the interpretation\n16 The 104th Congress did enact some unrelated amendments to OPA as part of the Coast Guard Authorization\nAct of 1996, Pub L No 104-324, 110 Stat 3901, but the amendment originally intended to overturn the Comptroller\nG eneral\xe2\x80\x99s ruling on Trustee access to the Fund was not included in that legislation See S. Rep. No. 104-160 (1995),\nreprinted in 1996 U S C C A N. 4239\n17See Brecht v Abraham son, 507 U S 619, 632 (1993)\n\n202\n\n\x0cFunds Available fo r Payment o f Natural Resource Damages Under the Oil Pollution Act o f 1990\n\nis at odds with the language of the statute and is not supported by the legislative\nhistory. Under such circumstances, the fact that Congress did not enact legislation\noverturning the Comptroller General\xe2\x80\x99s interpretation does not provide persuasive\nevidence of congressional ratification.\nConsidering the legislative record as a whole, therefore, we are unable to con\xc2\xad\nclude that Congress\xe2\x80\x99s response to proposed amendments to section 6002 of OPA\noffered in the 104th Congress provides significant legislative evidence supporting\nthe Comptroller General\xe2\x80\x99s opinion concerning Trustee access to the Fund.\n\nConclusion\nIn light of all the foregoing considerations, we conclude that section 1012(a)(4)\nof OPA authorizes payments from the Fund to natural resource trustees on claims\nfor uncompensated natural resource damages pursued in accordance with section\n1013. Under section 6002(b) of OPA, such payments may be made from the Fund\nwithout the need for further enactment of appropriations.\nRANDOLPH D. MOSS\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n203\n\n\x0c'


b'Congressional Request For Appointment Calendars of a\nFormer GSA Official\nU n d er G eneral Services A dm inistration records retention regulations, the appointm ent calendars\no f current and form er GSA officials are personal records and personal property, rather than\nofficial reco rd s and government property. Accordingly, under the facts presented, the G SA\nsho u ld retu rn a form er GSA o fficial\xe2\x80\x99s calendars to him . T he form er official, not the G SA , is\nresp o n sib le fo r responding to a congressional com m ittee\xe2\x80\x99s request for the calendars.\n\nFebruary 15, 1990\nM\n\nem orandum\n\nG\n\nO\n\neneral\n\np in io n fo r t h e\n\nS\n\ne r v ic e s\n\nA\n\nG\n\neneral\n\nCou n sel\n\nd m in is t r a t io n\n\nYou have asked for our opinion as to whether, for purposes of an over\xc2\xad\nsight request received from the Senate Committee on Governmental Affairs\n(\xe2\x80\x9cthe Committee\xe2\x80\x9d), the appointment calendars of a former official of the\nGeneral Services Administration (\xe2\x80\x9cGSA\xe2\x80\x9d) are government property or the\nofficial\xe2\x80\x99s personal property. As discussed below, we have concluded that in\nthese circumstances the calendars are the official\xe2\x80\x99s personal property and\nshould be returned to the official.1\n\nI. Statement o f Facts\nOn September 15, 1989, GSA accepted the resignation of a high-level\nofficial (\xe2\x80\x9cthe former official\xe2\x80\x9d).2 The former official promptly began his\ndeparture activities, including consideration of the disposition of his files,\nrecords and other papers. At his request, his secretary, who had maintained\nhis appointment calendars for him at her desk, delivered them to him so that\n. he could take them with him.\nSubsequently, by letter dated September 26, 1989, the Committee re\xc2\xad\nquested that GSA provide the Committee with certain specified information\nand documents, including the former official\xe2\x80\x99s appointment calendars. An\nagency official then asked the former official for the calendars so that GSA\ncould produce them to the Committee. The former official complied with the\n1In light of this conclusion, it is not necessary for us to address the question you raised as to the\np otential personal liability o f agency officials who participate in a decision to produce the calendars to\nthe Com m ittee.\n2T his statem ent o f facts is based on the inform ation presented to this Office in your letter o f October 24,\n1989 and orally by your staff.\n\n34\n\n\x0crequest and supplied the calendars to the GSA official. Before GSA had\nproduced the calendars to the Committee, however, the former official, by\nmeans of an October 12, 1989 letter from his attorney, requested that the\ncalendars be returned to him. In the letter he also objected to GSA produc\xc2\xad\ning the calendars to the Committee, on the grounds that the calendars were\nhis personal property and disclosure to Congress in these circumstances would\nviolate his rights.\nAfter receiving the former official\xe2\x80\x99s letter, GSA advised the Committee\nthat it was withholding the calendars pending review by GSA and this Office\nof the former official\xe2\x80\x99s position.\n\nII. Discussion\nThe question presented is whether the former official\xe2\x80\x99s appointment cal\xc2\xad\nendars should be treated as government property or personal property for\npurposes of the Committee\xe2\x80\x99s oversight request. More specifically, the ques\xc2\xad\ntion is whether on September 26, 1989 \xe2\x80\x94 the date the Committee requested\nthe calendars \xe2\x80\x94 they were government property (with respect to which GSA\nwas responsible for responding to the Committee) or the former official\xe2\x80\x99s\npersonal property (with respect to which the former official was responsible\nfor responding to the Committee).\nUnder GSA\xe2\x80\x99s records retention regulations, only \xe2\x80\x9cofficial records\xe2\x80\x9d\n(as defined in the regulations) are government property: \xe2\x80\x9cAll Federal em\xc2\xad\nployees must understand that official records belong to the Government, not\nto any individual . . . \xe2\x80\x9d GSA Order entitled \xe2\x80\x9cGSA Records Maintenance\nand Disposition System,\xe2\x80\x9d Order OADP1820.2CHGE76, ch. 2, \xc2\xa7 1 (Aug. 12,\n1985). The section of the regulations entitled \xe2\x80\x9cDistinction between official\nand personal records\xe2\x80\x9d makes it clear that appointment calendars are personal\nrecords rather than official records:\nPersonal calendars, appointment books, schedules, and diaries\nshowing meetings, appointments, trips, and other activities of\na high-level official solely for the convenience of the highlevel official in managing his or her time are personal records.\nDocuments such as these may be disposed of at the discretion\nof the official.\nId., ch. 2, \xc2\xa7 4(b)(3).\nThus, the appointment calendars of high-level GSA officials are not gov\xc2\xad\nernment property. Rather, they are \xe2\x80\x9cpersonal records . . . [that] may be\ndisposed of at the discretion of the official.\xe2\x80\x9d Id. In our view, the actions the\nformer official took, prior to the Committee\xe2\x80\x99s request, to dispose o f the\ncalendars by taking them with him when he departed the agency clearly\n\n35\n\n\x0cconstituted the exercise of the official\xe2\x80\x99s right under the GSA regulations to\ntreat the calendars as personal property and dispose of them as he wishes.\nWe therefore conclude that at the time the Committee requested the cal\xc2\xad\nendars they were the personal property of the former official and not\ngovernment property. Accordingly, in these circumstances the former offi\xc2\xad\ncial and not GSA is responsible for responding to the Committee\xe2\x80\x99s request\nfor the calendars. They should be returned to the former official.3\nLYNDA GUILD SIMPSON\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n5 T hese conclusions are unaffected by the fact that after the Com m ittee\xe2\x80\x99s request was received the\nform er official supplied the calendars to the agency for production to the Committee. The calendars\nw ere his personal property at the time o f the request, and any apparent consent to perm it GSA to\nproduce the calendars to the Committee w as clearly retracted by the October 12, 1989 letter from the\no fficial\xe2\x80\x99s attorney.\n\n36\n\n\x0c'


b'March 4, 1977\n\n77-10\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nDrug Enforcement Administration\xe2\x80\x99s Authority to\nImpose Civil Penalties\n\nThis is in response to your memorandum posing the question whether\nthe Administrator of the D rug Enforcement Administration (DEA ) has\nthe pow er to fix and settle civil penalties under 21 U.S.C. \xc2\xa7 842(c)(1), as\namended by the Comprehensive D rug Abuse Prevention and Control\nA ct o f 1970, Pub. L. No. 91-513, \xc2\xa7 402(c)(1), 84 Stat. 1236, 1262,\nwithout instituting litigation to obtain an enforceable judgment. We are\no f the opinion that it does not.\nUnder \xc2\xa7 842(c)(1), which imposes a civil penalty, the Federal district\ncourts have jurisdiction to enforce the penalty. That jurisdiction is both\noriginal and exclusive, as appears from the face of the A ct and from its\nlegislative history. The House Report on the Comprehensive Drug\nAbuse Prevention and Control A ct of 1970 described jurisdiction to\nenforce \xc2\xa7 402 in the following terms:\n\xe2\x80\x9cThe U.S. District Court or otherwise proper U.S. court having\njurisdiction of matters o f this nature shall have jurisdiction to\nenforce this paragraph.\xe2\x80\x9d H.R. Rep. No. 91-1444 (Part 1), 91st\nCong., 2d Sess. 47 (1970), reprinted in [1970] U.S. Code Cong. &\nAd. News 4566, 4615.\nM oreover, it is evident from the structure of the Act that Congress\nintended penalties to be imposed through the courts rather than\nthrough administrative action by the Attorney General or his designees.\nF or example, \xc2\xa7 508 of the Act, listing powers of enforcement person\xc2\xad\nnel, does not include any authority whatever to adjudicate violations of\nthe statute or to impose penalties. Section 511, respecting forfeitures of\nproperty, requires that they be made in accordance with governing\nrules of judicial procedure unless incident to a valid warrant, arrest,\nprior judgment, or equivalent authority. Section 512(a) authorizes the\ncourts\xe2\x80\x94but not the Attorney General or the Administrator\xe2\x80\x94to issue\ninjunctions to forbid violations of Title II o f the Act (which includes\n24\n\n\x0c\xc2\xa7 402), in accordance with the Federal Rules of Civil Procedure. Sec\xc2\xad\ntion 512(b) provides jury trials for violators. As a final example, \xc2\xa7 513\nauthorizes persons threatened with enforcement action to show cause\nwhy they should not be prosecuted. The House Report states that\n\xe2\x80\x9c[t]his proceeding is generally intended to cover technical violations by\nregistrants, and allows for administrative compliance, if possible, before\ncourt action is initiated.\xe2\x80\x9d\nOnly the courts of the United States can impose the penalties de\xc2\xad\nscribed in \xc2\xa7 402; the A ct contains no indication to the contrary. T here\xc2\xad\nfore, the Administrator may not rely on the authority of 31 U.S.C.\n\xc2\xa7\xc2\xa7 952 and 953 to \xe2\x80\x9csettle, compromise, or close claims\xe2\x80\x9d arising out of\nthe activities of DEA. While those provisions would support D E A\naction to collect a civil penalty once imposed, they do not empower\nthe Administrator to levy it himself. The claims-collection procedure\ncannot be invoked until a penalty has been imposed by a court of\nproper jurisdiction.1\nIn summary, the Administrator is not authorized to adjudicate viola\xc2\xad\ntions of 21 U.S.C. \xc2\xa7 842 or to impose civil penalties under \xc2\xa7 842(c)(1).\nJurisdiction to do so is vested exclusively in the courts o f the United\nStates. The appropriate means to enforce the civil penalties provided\nfor in that section are through a civil action in district court. If a\njudgment and penalty result, the Administrator may then proceed to\ncollection or settlement.\nJohn M . H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n1 T h e term \xe2\x80\x9cclaims\xe2\x80\x9d has a m ore restricted m eaning than m ight at first be thought. 4\nC F R \xc2\xa7 102.6, for exam ple, does not serve to define \xe2\x80\x9cclaims\xe2\x80\x9d generally. It simply states\nthat agencies seeking the collection o f statutory penalties, forfeitures, o r debts provided as\nan enforcem ent aid should consider suspension o r revocation o f licenses on the p a rt of\nviolators w h o delay in making paym ent. A num ber o f F ederal agencies have express\nstatutory authority to adjudge violations o f law or reguhion and to impose statutory\npenalties. D E A does not.\n\n25\n\n\x0c'