b'Constitutionality of Bill Establishing American Folklife\nCenter in the Library of Congress\nA bill creating an American Folklife Center in the Library of Congress would violate the separation of\npowers by vesting the Librarian of Congress, a congressional officer, with executive functions.\nThe bill would also violate the Appointments Clause by permitting certain members of the Board of\nDirectors of the American Folklife Center to be appointed by members of Congress, the Board of\nDirectors of the Smithsonian Institution, and the Librarian of Congress.\n\nDecember 31, 1975\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nThis is in response to the telephone request of Mr. Barry Roth of your staff for\nthe views of the Department of Justice on the constitutional aspects of the aboveentitled enrolled bill, with which the Department has had no prior contact.\nThe bill contains findings to the effect that it is appropriate and necessary for\nthe federal government to support research and scholarship in American folklife,\nand that the encouragement and support of American folklife is an appropriate\nmatter of concern to the federal government. H.R. 6673, 94 Cong., 1st Sess. \xc2\xa7 2\n(1975). The bill then sets up an American Folklife Center in the Library of Congress. Id. \xc2\xa7 4(a). The Center would be under the direction of a Board of Trustees\ncomposed as follows:\n(1) four members appointed by the President [of the United States];\n(2) four members appointed by the President pro tempore of the Senate . . . and four members appointed by the Speaker of the House of\nRepresentatives . . . ;\n(3) the Librarian of Congress;\n(4) the Secretary of the Smithsonian Institution;\n(5) the Chairman of the National Endowment for the Arts;\n(6) the Chairman of the National Endowment for the Humanities;\nand\n(7) the Director of the Center.\nId. \xc2\xa7 4(b).\nThe Librarian of Congress is empowered to appoint a Director of the Center\nafter consultation with the Board. Id. \xc2\xa7 4(f). The Director would be the chief\nexecutive officer of the Center, and would have responsibility for carrying out the\n\n379\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nfunctions of the Center, subject to the direction of the Board and the general\nsupervision of the Librarian. Id. \xc2\xa7 4(g).\nSection 5 sets forth the functions which the Librarian of Congress is authorized\nto perform under the Act (subsection (a)) and provides that they are to be carried\nout through the Center (subsection (b)).\nIn our view the bill presents two important constitutional problems: the first\ninvolves the doctrine of the separation of powers, which requires that statutes\nassigning executive duties must be administered by the Executive Branch and not\nby congressional officers, such as the Librarian of Congress; the second is the\nprinciple that functions of an executive nature must be carried out by officers of\nthe United States appointed in compliance with the requirements of Article II of\nthe Constitution.\nI.\nArticle I of the Constitution vests the legislative power of the United States in\nthe Congress. Article II vests the executive power of the United States in the\nPresident and directs him to \xe2\x80\x9ctake care that the laws be faithfully executed.\xe2\x80\x9d This\nmeans that statutes creating functions of an executive nature are to be carried out\nby the Executive Branch of the government under the supervision of the President,\nand not by congressional agencies. This basic constitutional consideration, of\ncourse, does not preclude the performance of internal congressional functions and\nof congressional services by congressional officers. The bill, however, goes far\nbeyond that. Some of the functions to be performed by the Librarian of Congress\nthrough the American Folklife Center have, it is true, a substantial nexus with the\nLibrary of Congress (see, e.g., H.R. 6673, \xc2\xa7 5(a)(2)\xe2\x80\x93(5))\xe2\x80\x94though even as to these\nit is open to question whether they truly come within the ambit of an institution\nwhose primary purpose is to give library and reference service to Congress. This,\nhowever, cannot under any circumstances be said of the contract authority set forth\nin section 5(a)(1), empowering the Librarian to\nenter into, in conformity with Federal procurement statutes and regulations, contracts with individuals and groups for programs for the\xe2\x80\x94\n(A) initiation, encouragement, support, organization, and promotion of research, scholarship, and training in American folklife;\n(B) initiation, promotion, support, organization, and production of\nlive performances, festivals, exhibits, and workshops related to\nAmerican folklife;\n(C) purchase, receipt, production, arrangement for, and support of\nthe production of exhibitions, displays, publications, and presentations (including presentations by still and motion picture films,\n\n380\n\n\x0cConstitutionality of Bill Establishing American Folklife Center\n\nand audio and visual magnetic tape recordings) which represent or\nillustrate some aspect of American folklife; and\n(D) purchase, production, arrangement for, and support of the\nproduction of exhibitions, projects, presentations, and materials\nspecially designed for classroom use representing or illustrating\nsome aspect of American folklife.\nThese activities do not appear to be related to any internal congressional function or service. While it is true that a few other functions of the Library, such as\nthe provision of books and sound production records to the blind and other\nphysically handicapped persons, 2 U.S.C. \xc2\xa7 135a, are not directly so related either,\nthey are at least a logical adjunct of the historical library function which the\nvenerable institution has provided. While one may permit this for reasons of\npracticality and historical prescription, the extension of the institution\xe2\x80\x99s activities\ninto the entirely unrelated field of funding folklife training and performances is a\nchange of qualitative nature. The extension would thus have been made first, from\nan institution which serves the Congress as a library; to one which serves the\npublic in the same capacity; and finally, to one which serves the public in capacities entirely unrelated either to congressional service or to libraries. This last\nextension moves the Library of Congress into areas now occupied by the National\nEndowment for the Arts, and the National Endowment for the Humanities (both\nexecutive agencies).\nII.\nThe second constitutional problem in the bill concerns the manner in which ten\nmembers of the Board of Trustees of the American Folklife Center are to be\nappointed.\nUnder the bill, the Board would perform important functions in the administration of the statutory program; its responsibilities would not be limited to advice.\nFor example, it would give direction, not merely advice, to the Director of the\nCenter, an official appointed by the Librarian (H.R. 6673, \xc2\xa7 4(g)(1)); and certain\nfunctions of the Center could be undertaken only if the Board considers them\n\xe2\x80\x9cappropriate\xe2\x80\x9d (id. \xc2\xa7 5(a)(5), (6)). Again, certain types of contracts may be entered\ninto only with the concurrence of the Board. See, e.g., id. \xc2\xa7\xc2\xa7 6(a), 7(a)(3), 7(a)(8).\nUnder section 7(a)(7) a majority of two-thirds of the members of the Board may\neven waive otherwise applicable bonding requirements.\nThe Board therefore performs functions of an executive nature. Its activities are\nnot merely of an advisory nature or limited to a single task of limited duration, as\nis the case with so-called ad hoc officers. See The Constitution of the United\nStates: Analysis and Interpretation, S. Doc. No. 92-82, at 523 (1973).\n\n381\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIt follows that the functions of the members of the Board of Trustees can be\nperformed only by persons who are officers of the United States and appointed in\nthe manner prescribed by Article II, Section 2, Clause 2 of the Constitution,\nnamely, by the President by and with the advice of the Senate, or with congressional authorization by the President alone, or the courts of law, or the heads of\ndepartments.\nThe bill fails to comply with these constitutional requirements with respect to\nthe following members of the Board:\n(a) The eight members appointed by the President pro tempore of the\nSenate and the Speaker of the House, respectively;\n(b) The Secretary of the Smithsonian Institution, who is appointed by\nthe Board of Regents of the Smithsonian Institution (20 U.S.C. \xc2\xa7 44),\nwhich cannot be viewed as the equivalent of a department head within the meaning of Article II; and\n(c) The Director of the Center who would be appointed by the\nLibrarian of Congress who similarly does not have the status of a department head within the meaning of Article II of the Constitution.\nA similar problem arose in connection with the legislation establishing the\nJapan-United States Friendship Commission (Japan-United States Friendship Act,\nPub. L. No. 94-118, 89 Stat. 603 (1975)) and in the Arts and Artifacts Indemnity\nAct (Pub. L. No. 94-158, 89 Stat. 844 (1975)). There, as indicated in the President\xe2\x80\x99s signing statements, Statement on Signing the Japan-United States Friendship Act, 2 Pub. Papers of Pres. Gerald R. Ford 1718, 1719 (Oct. 21, 1975);\nStatement on Signing the Arts and Artifacts Indemnity Act, 2 id. 1990, 1991 (Dec.\n22, 1975), it was possible to obviate the difficulty by considering the members\nappointed by the President pro tempore and the Speaker to be advisory, nonvoting\nmembers. This approach does not appear to be available here, because the improperly appointed members would constitute ten out of seventeen of the Board\xe2\x80\x99s\nmembership.\nFor the above reasons, it is our view that the provisions of this legislation are\ncontrary to the strict provisions of the Constitution. It must be acknowledged,\nhowever, that in the area of cultural and educational affairs, the separation of\npowers may not have been strictly observed. Despite the fact that they do not\nconstitute as drastic a departure from the constitutional requirements as the present\nbill, those provisions of the Library of Congress statute which authorize the\nprovision of specific services to the public must be considered a technical\nanomaly. Indeed, it is probably demonstrable that from an early date the primary\nfunction of the Library of Congress has been public service rather than congressional assistance. Similarly, the makeup of the Smithsonian Institution\xe2\x80\x94if that is\n\n382\n\n\x0cConstitutionality of Bill Establishing American Folklife Center\n\nto be regarded as a federal agency, a point which is subject to some dispute\xe2\x80\x94\ncontravenes the constitutional text.\nComplete acceptance of this historical practice runs the risk of inviting further\ntransfers to the Library of Congress of cultural and educational functions; and\nperhaps of encouraging more serious encroachments upon executive prerogatives\nthrough the assignment of entirely different functions to the General Accounting\nOffice. Moreover, it appears from our experience with the Japan-United States\nFriendship Commission and the Arts and Artifacts Indemnity Act, discussed\nabove, that only a presidential veto directed at this practice will suffice to call the\nattention of Congress to the problem involved. Given the very nature of all of these\ncultural and educational proposals, it may be vain to await an occasion for a\npresidential veto more propitious than the present. Nonetheless, in light of the\nhistorical practice, we think the President can responsibly sign the present legislation with the expression of his serious reservation concerning the constitutional\npropriety of placing such functions outside the Executive Branch.*\nANTONIN SCALIA\nAssistant Attorney General\nOffice of Legal Counsel\n\n*\nEditor\xe2\x80\x99s Note: President Ford signed H.R. 6673 into law as the American Folklife Preservation\nAct, Pub. L. No. 94-201, 89 Stat. 1129 (Jan. 2, 1976). As advised, he expressed \xe2\x80\x9cserious reservations\nconcerning the constitutional propriety of placing the functions to be performed by the Center outside\nthe executive branch and the assignment of executive duties to officers appointed by Congress.\xe2\x80\x9d\nStatement on Signing the American Folklife Preservation Act, 1 Pub. Papers of Pres. Gerald R. Ford\n6, 6 (Jan. 3, 1976). \xe2\x80\x9cHowever,\xe2\x80\x9d said President Ford, \xe2\x80\x9cgiven historical practice and custom in the area of\ncultural and educational affairs and the potential of H.R. 6673 to enrich the cultural life of the Nation, I\nam granting my approval to the measure.\xe2\x80\x9d Id. at 6-7. The American Folklife Center remains a part of\nthe Library of Congress today. See 20 U.S.C. \xc2\xa7\xc2\xa7 2101 et seq.\nA recent D.C. Circuit decision reached a different conclusion regarding the separation of powers\nand Appointments Clause issues addressed in this opinion, holding that the Library of Congress is part\nof the Executive Branch and that the Librarian is a department head, at least with respect to the\nCopyright Office. Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1342 (D.C.\nCir. 2012).\n\n383\n\n\x0c'


b'Government Lawyers\xe2\x80\x99 Pro Bono Activities\nin the District of Columbia\nA tto rn e y s e m p lo y ed by th e fed eral g o v e rn m e n t a re b a rre d b y 18 U .S .C . \xc2\xa7 2 0 5 from\np a rtic ip a tin g in an y case in w h ic h th e D istric t o f C o lu m b ia is a p a rty o r has a d ire c t\nan d su b stan tial in terest. C o n c lu sio n o f 1970 o p in io n th at fed eral a tto rn e y s m ay not\nre p re se n t e v e n o n a v o lu n ta ry basis in d ig en t p erso n s assertin g claim s against the\nD istric t, affirm ed.\n\nNovember 3, 1980\nM EM ORANDUM OPIN IO N FOR T H E STA FF DIRECTOR,\nFE D E R A L L EG A L COUNCIL\nThis responds to your request on behalf of the Federal Legal Council\nfor \xe2\x80\x9can opinion as to whether [18 U.S.C. \xc2\xa7205] necessarily bars all\nfederal attorneys from practice in any case in which the District of\nColumbia is a party or has a direct and substantial interest.\xe2\x80\x9d\nAt the outset we wish to point out that this Department\xe2\x80\x99s position on\nthe applicability of 18 U.S.C. \xc2\xa7205 to matters in which the District of\nColumbia is a party or has an interest does not stem from the fact that\nDistrict criminal cases are handled by lawyers of the United States\nAttorney\xe2\x80\x99s Office. We originally took that position upon the enactment\nof \xc2\xa7 205, and have consistently maintained it since then, because we\nconcluded that \xc2\xa7 205 requires it. We would maintain it even if the U.S.\nAttorney\xe2\x80\x99s Office were to withdraw completely from prosecutive work\nin the District.\nThe specific legal issue raised by the inquiry of the Council is\nwhether a case involving the District is a \xe2\x80\x9cparticular matter in which\nthe United States is a party or has a direct and substantial interest\xe2\x80\x9d\nwithin the meaning of 18 U.S.C. \xc2\xa7205(2). This Office had occasion to\nrule on the issue formally a decade ago. Then it was raised by the\nformer Civil Service Commission in relation to a proposal by the\nDistrict of Columbia Chapter of the Federal Bar Association that Dis\xc2\xad\ntrict o f Columbia and federal government attorneys be permitted to\nvolunteer their representational services to indigent persons asserting\nclaims against the District. Assistant Attorney General Rehnquist con\xc2\xad\ncluded, in a March 26, 1970 opinion, that such representation is barred\nby \xc2\xa7 205 because a District matter is one \xe2\x80\x9cin which the United States is\n800\n\n\x0ca party or has a direct and substantial interest.\xe2\x80\x9d We find no basis for\ndiverging from that opinion today.\nWe have also considered the suggestion that certain similarities in\nfunction between the District of Columbia government and that of a\nstate provide the justification for allowing presently barred pro bono\nactivities of federal attorneys before the District of Columbia courts.\nThe suggestion evidences the view that the Department has the discre\xc2\xad\ntion to permit such activities. In truth, the Department has no power of\nthat kind. Only Congress can reduce the scope of 18 U.S.C. \xc2\xa7205.\nL e o n U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n801\n\n\x0c'


b'Duty to Report Suspected Child\nAbuse Under 42 U.S.C. \xc2\xa7 13031\nUnder 42 U.S.C. \xc2\xa7 13031\xe2\x80\x94a provision of the Victims of Child Abuse Act of 1990\xe2\x80\x94all\ncovered professionals who learn of suspected child abuse while engaged in enumerated\nactivities and professions on federal land or in federal facilities must report that abuse,\nregardless of where the suspected victim is cared for or resides.\nThe fact that a patient has viewed child pornography may \xe2\x80\x9cgive reason to suspect that a\nchild has suffered an incident of child abuse\xe2\x80\x9d under the statute, and a covered professional is not relieved of an obligation to report the possible abuse simply because neither the covered professional nor the patient knows the identity of the child depicted in\nthe pornography.\nMay 29, 2012\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF VETERANS AFFAIRS *\nSection 13031 of title 42, a provision in the Victims of Child Abuse\nAct of 1990 (\xe2\x80\x9cVCAA\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d), Pub. L. No. 101-647, tit. II, \xc2\xa7 226, 104\nStat. 4789, 4792, 4806, requires persons engaged in certain activities and\nprofessions on federal lands or in federal facilities to report \xe2\x80\x9cfacts that\ngive reason to suspect that a child has suffered an incident of child abuse\xe2\x80\x9d\nif they learn such facts in the course of their professional activities. Failure to make a report required by section 13031 could subject such persons\nto criminal penalties. See 18 U.S.C. \xc2\xa7 2258. You have raised two questions about the scope of section 13031. See Letter for Eric Holder, Attorney General, from Will A. Gunn, General Counsel, Department of Veterans Affairs (Nov. 9, 2009) (\xe2\x80\x9cVA Letter\xe2\x80\x9d).\nFirst, you have asked whether section 13031\xe2\x80\x99s reporting requirement is\nlimited to situations in which the suspected victim of child abuse is cared\nfor or resides on federal land or in a federal facility. We conclude that it is\nnot. Instead, under the VCAA, all persons who learn of suspected child\nabuse (as defined by the Act) while engaged in the enumerated activities\nand professions on federal land or in federal facilities must report that\n* Editor\xe2\x80\x99s Note: After this opinion was issued, 42 U.S.C. \xc2\xa7 13031 was reclassified\nand renumbered as 34 U.S.C. \xc2\xa7 20341. The statute has also repeatedly been amended\nby Congress since 2012, but not in any way that appears to undermine the analysis or\nconclusions reached by this opinion.\n\n167\n\n\x0c36 Op. O.L.C. 167 (2012)\n\nabuse, regardless of where the suspected victim is cared for or resides. We\nrecognize that the scope of some of the statutory language may be ambiguous, and that narrower readings of the reporting requirement find some\nsupport in certain of the statute\xe2\x80\x99s provisions. But we believe that section\n13031, read as a whole and in light of its purpose, is best interpreted\nbroadly.\nSecond, you have inquired whether the VCAA\xe2\x80\x99s reporting obligation is\ntriggered when a person covered by section 13031 learns that a patient\nunder his or her care has viewed child pornography, even if the person\ndoes not know, and has no reason to believe the patient knows, the identity of the child or children depicted in the pornography. We conclude that\nthe fact that a patient has viewed child pornography may be a \xe2\x80\x9cfact[] . . .\ngiv[ing] reason to suspect that a child has suffered an incident of child\nabuse\xe2\x80\x9d under section 13031, and that the statute does not require a covered professional to possess knowledge of the identity of an affected child\nin order for the reporting duty to apply.\nWe have concluded that the interpretive questions you have raised can\nbe resolved using ordinary tools of statutory construction, so we have not\napplied the rule of lenity even though the VCAA provides for criminal\npenalties. We note, however, that a person who fails to make a report\nrequired by section 13031 will not necessarily be subject to criminal\npenalties under the statute. The criminal penalty provision contains no\nexplicit mens rea requirement, and thus one would almost certainly be\ninferred. See United States v. X-Citement Video, Inc., 513 U.S. 64, 70\n(1994). While we need not decide what mens rea would apply, a court\nconstruing section 13031 might well require a defendant to have known\nthat a report was legally required before imposing criminal liability for a\nfailure to report. Such a reading would, among other things, address any\nconcern about imposing criminal liability on persons who lacked clear\nnotice that the failure to report in their particular circumstances was\nunlawful.\nI.\nCongress enacted the VCAA, including section 13031, as title II of the\nCrime Control Act of 1990. Pub. L. No. 101-647, \xc2\xa7\xc2\xa7 201\xe2\x80\x93255, 104 Stat. at\n4792\xe2\x80\x934815. Section 13031 requires persons on \xe2\x80\x9cFederal land or in a\n168\n\n\x0cDuty to Report Suspected Child Abuse Under 42 U.S.C. \xc2\xa7 13031\n\nfederally operated (or contracted) facility\xe2\x80\x9d who are engaged in certain\nactivities\xe2\x80\x94individuals the statute calls \xe2\x80\x9c[c]overed professionals\xe2\x80\x9d\xe2\x80\x94to\nreport suspected incidents of child abuse. 42 U.S.C. \xc2\xa7 13031(a)\xe2\x80\x93(b)\n(2006). Specifically, section 13031(a) provides that\n[a] person who, while engaged in a professional capacity or activity\ndescribed in subsection (b) of this section on Federal land or in a\nfederally operated (or contracted) facility, learns of facts that give\nreason to suspect that a child has suffered an incident of child abuse,\nshall as soon as possible make a report of the suspected abuse to the\nagency designated under subsection (d) of this section. 1\nSection 13031(d) directs the Attorney General to designate the agency\nor agencies to which the reports described in subsection (a) should be\nmade. It states:\nFor all Federal lands and all federally operated (or contracted) facilities in which children are cared for or reside, the Attorney General shall designate an agency to receive and investigate the reports\ndescribed in subsection (a) of this section. By formal written agreement, the designated agency may be a non-Federal agency. When\n1\n\nSubsection (b) provides:\nPersons engaged in the following professions and activities are subject to the requirements of subsection (a) of this section:\n(1) Physicians, dentists, medical residents or interns, hospital personnel and\nadministrators, nurses, health care practitioners, chiropractors, osteopaths,\npharmacists, optometrists, podiatrists, emergency medical technicians, ambulance drivers, undertakers, coroners, medical examiners, alcohol or drug treatment personnel, and persons performing a healing role or practicing the healing\narts.\n(2) Psychologists, psychiatrists, and mental health professionals.\n(3) Social workers, licensed or unlicensed marriage, family, and individual\ncounselors.\n(4) Teachers, teacher\xe2\x80\x99s aides or assistants, school counselors and guidance personnel, school officials, and school administrators.\n(5) Child care workers and administrators.\n(6) Law enforcement personnel, probation officers, criminal prosecutors, and\njuvenile rehabilitation or detention facility employees.\n(7) Foster parents.\n(8) Commercial film and photo processors.\n\n169\n\n\x0c36 Op. O.L.C. 167 (2012)\n\nsuch reports are received by social services or health care agencies,\nand involve allegations of sexual abuse, serious physical injury, or\nlife-threatening neglect of a child, there shall be an immediate referral of the report to a law enforcement agency with authority to take\nemergency action to protect the child. All reports received shall be\npromptly investigated, and whenever appropriate, investigations\nshall be conducted jointly by social services and law enforcement\npersonnel, with a view toward avoiding unnecessary multiple interviews with the child.\nConsistent with this directive, the Attorney General has issued a regulation designating the agencies authorized to receive and investigate reports\nof child abuse submitted under section 13031(a). That rule, which appears\nas 28 C.F.R. \xc2\xa7 81.2 (2010), provides:\nReports of child abuse required by 42 U.S.C. 13031 shall be made\nto the local law enforcement agency or local child protective services agency that has jurisdiction to investigate reports of child\nabuse or to protect child abuse victims in the land area or facility in\nquestion. Such agencies are hereby respectively designated as the\nagencies to receive and investigate such reports, pursuant to 42\nU.S.C. 13031(d), with respect to federal lands and federally operated\nor contracted facilities within their respective jurisdictions, provided\nthat such agencies, if non-federal, enter into formal written agreements to do so with the Attorney General, her delegate, or a federal\nagency with jurisdiction for the area or facility in question. If the\nchild abuse reported by the covered professional pursuant to 42\nU.S.C. 13031 occurred outside the federal area or facility in question, the designated local law enforcement agency or local child protective services agency receiving the report shall immediately forward the matter to the appropriate authority with jurisdiction outside\nthe federal area in question.\nAtt\xe2\x80\x99y Gen. Order No. 2009-96, 61 Fed. Reg. 7704 (Feb. 29, 1996).\nUnder section 13031, \xe2\x80\x9cthe term \xe2\x80\x98child abuse\xe2\x80\x99 means the physical or\nmental injury, sexual abuse or exploitation, or negligent treatment of a\nchild.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 13031(c)(1). Section 13031 further explains that \xe2\x80\x9cthe\nterm \xe2\x80\x9csexual abuse\xe2\x80\x9d includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another\n170\n\n\x0cDuty to Report Suspected Child Abuse Under 42 U.S.C. \xc2\xa7 13031\n\nperson to engage in, sexually explicit conduct or the rape, molestation,\nprostitution, or other form of sexual exploitation of children, or incest\nwith children.\xe2\x80\x9d Id. \xc2\xa7 13031(c)(4). \xe2\x80\x9c[T]he term \xe2\x80\x98exploitation\xe2\x80\x99 means child\npornography or child prostitution.\xe2\x80\x9d Id. \xc2\xa7 13031(c)(6).\nTwo other provisions in section 13031 are also relevant. Section\n13031(e) provides that \xe2\x80\x9c[i]n every federally operated (or contracted)\nfacility, and on all Federal lands, a standard written reporting form, with\ninstructions, shall be disseminated to all mandated reporter groups,\xe2\x80\x9d and\nmakes clear as well that although \xe2\x80\x9c[u]se of the form shall be encouraged,\n. . . its use shall not take the place of the immediate making of oral reports\n. . . when circumstances dictate.\xe2\x80\x9d Section 13031(h) provides that \xe2\x80\x9c[a]ll\nindividuals in the occupations listed in subsection (b)(1) of this section\nwho work on Federal lands, or are employed in federally operated (or\ncontracted) facilities, shall receive periodic training in the obligation to\nreport, as well as in the identification of abused and neglected children.\xe2\x80\x9d\nFinally, in section 226(g)(1) of the VCAA (codified as amended at 18\nU.S.C. \xc2\xa7 2258), Congress criminalized the failure to report child abuse as\nmandated by 42 U.S.C. \xc2\xa7 13031. The criminal provision states:\nA person who, while engaged in a professional capacity or activity\ndescribed in subsection (b) of section 226 of the Victims of Child\nAbuse Act of 1990 [42 U.S.C. \xc2\xa7 13031] on Federal land or in a federally operated (or contracted) facility, learns of facts that give reason to suspect that a child has suffered an incident of child abuse, as\ndefined in subsection (c) of that section, and fails to make a timely\nreport as required by subsection (a) of that section, shall be fined\nunder this title or imprisoned not more than 1 year or both.\n18 U.S.C. \xc2\xa7 2258 (2006). When the VCAA was originally enacted, the\noffense was a Class B misdemeanor punishable by six months of imprisonment, Pub. L. No. 101-647, \xc2\xa7 226(g)(1), 104 Stat. at 4808; see 18\nU.S.C. \xc2\xa7 3581(b)(7) (1988), but in 2006, Congress amended 18 U.S.C.\n\xc2\xa7 2258 by raising the maximum punishment from six months to one year\nof imprisonment. Adam Walsh Child Protection and Safety Act of 2006,\nPub. L. No. 109-248, \xc2\xa7 209, 120 Stat. 587, 615. Other than this change,\nCongress has amended neither 18 U.S.C. \xc2\xa7 2258 nor 42 U.S.C. \xc2\xa7 13031\nsince it enacted the provisions in 1990.\n171\n\n\x0c36 Op. O.L.C. 167 (2012)\n\nII.\nA.\nWe first consider the circumstances under which covered professionals\nmust report suspected child abuse under the VCAA. 2 We conclude that,\nalthough no interpretation of section 13031 perfectly reconciles all of its\nprovisions, section 13031 is best read to impose a reporting obligation on\nall persons who, while engaged in the covered professions and activities\non federal lands or in federal facilities, learn of facts that give reason to\nsuspect that child abuse has occurred, regardless of where the abuse might\nhave occurred or where the suspected victim is cared for or resides. In\nreaching this conclusion, we considered the construction of section 13031\nthat you propose, as well as two other readings that would narrow the\nreporting obligation. As explained below, while all of these narrowing\nconstructions find support in certain provisions of the statute, they are\nalso in significant tension with other parts of section 13031, leading us to\nconclude that section 13031 \xe2\x80\x9c\xe2\x80\x98as a whole\xe2\x80\x99\xe2\x80\x9d is best read to impose the\nbroad reporting obligation described above. See United States v. Atl.\nRsch. Corp., 551 U.S. 128, 135 (2007) (quoting King v. St. Vincent\xe2\x80\x99s\nHosp., 502 U.S. 215, 221 (1991)).\nSection 13031(a) sets forth the reporting requirement that is the\nVCAA\xe2\x80\x99s core directive. It provides that a covered professional engaged in\na covered activity \xe2\x80\x9con Federal land or in a federally operated (or contracted) facility\xe2\x80\x9d who \xe2\x80\x9clearns of facts that give reason to suspect that a child\n2 In preparing our opinion, we considered views provided by your office, the Department of Justice\xe2\x80\x99s Criminal Division, the Department of Defense, the Department of State,\nand the Attorney General\xe2\x80\x99s Advisory Council. See E-mail for Jeannie S. Rhee, Deputy\nAssistant Attorney General, Office of Legal Counsel (\xe2\x80\x9cOLC\xe2\x80\x9d), from Alexandra Gelber,\nCriminal Division (Jan. 15, 2010, 10:15 AM); E-mail for Jeannie S. Rhee, Deputy Assistant Attorney General, OLC, from John Casciotti, Office of General Counsel, Department\nof Defense (Feb. 26, 2010, 5:02 PM); E-mail for Jeannie S. Rhee, Deputy Assistant\nAttorney General, OLC, from Robert Choo, Office of the Legal Adviser, Department of\nState (July 21, 2010, 2:35 PM); E-mail for Cristina M. Rodr\xc3\xadguez, Deputy Assistant\nAttorney General et al., from Carter Stewart, United States Attorney for the Southern\nDistrict of Ohio (Feb. 3, 2012, 6:45 PM). We also solicited the opinion of the Department\nof Health and Human Services, which indicated that it \xe2\x80\x9chas no view about the interpretation advanced by the Veterans Administration.\xe2\x80\x9d E-mail for Jeannie S. Rhee, Deputy\nAssistant Attorney General, OLC, from Elizabeth J. Gianturco, Senior Advisor to the\nGeneral Counsel, Department of Health and Human Services (Apr. 21, 2010, 2:16 PM).\n\n172\n\n\x0cDuty to Report Suspected Child Abuse Under 42 U.S.C. \xc2\xa7 13031\n\nhas suffered an incident of child abuse, shall as soon as possible make a\nreport of the suspected abuse to the agency designated under subsection\n(d) of this section.\xe2\x80\x9d On its face, this is a broad provision: It applies to\ncovered professionals on all federal lands and in all federal facilities and\nrequires a report as soon as possible no matter where the suspected child\nvictim resides, is cared for, or may have been abused. The express incorporation of subsection (d), however, gives rise to doubt about the scope of\nsubsection (a)\xe2\x80\x99s reporting requirement, because subsection (d) appears to\nrequire the Attorney General to designate an agency to receive reports\nonly \xe2\x80\x9c[f]or all Federal lands and all federally operated (or contracted)\nfacilities in which children are cared for or reside.\xe2\x80\x9d The central question,\nthen, is whether the cross-reference to subsection (d) limits subsection\n(a)\xe2\x80\x99s otherwise broad language, and if so, in what way. 3\nYou suggest that it would be reasonable to read the reporting requirement as applying \xe2\x80\x9conly with regard to suspected abuse of children residing or cared for on Federal lands and in federally operated and contracted\nfacilities,\xe2\x80\x9d because \xe2\x80\x9c42 U.S.C. \xc2\xa7 13031(a) requires reporting only to\nagencies as designated under subsection (d), and subsection (d) provides\nfor designation only of agencies to receive and investigate reports for\nFederal reservations in which children are cared for or reside.\xe2\x80\x9d VA Letter\nat 2. In other words, you maintain that, because subsection (d) specifies\nagencies to receive reports only for \xe2\x80\x9cFederal lands and . . . facilities in\nwhich children are cared for or reside,\xe2\x80\x9d Congress intended to require\nreports only for suspected abuse of children who reside or are cared for on\nfederal lands or in federal facilities. Moreover, it might be argued that\nwhen the Attorney General designates an agency to receive reports for\nfederal lands and facilities in which children are not cared for and do not\nreside, he is not making designations \xe2\x80\x9cunder\xe2\x80\x9d subsection (d), because that\nprovision expressly addresses designations only for federal lands and\nfacilities \xe2\x80\x9cin which children are cared for or reside.\xe2\x80\x9d This construction of\nsection 13031, in your view, would appropriately align the location of the\n\n3 We assume for purposes of this opinion, as do you, that the phrase \xe2\x80\x9cin which children are cared for or reside\xe2\x80\x9d modifies both \xe2\x80\x9cFederal lands\xe2\x80\x9d and \xe2\x80\x9cfederally operated (or\ncontracted) facilities.\xe2\x80\x9d VA Letter at 2 (\xe2\x80\x9csubsection (d) provides for designation . . . of\nagencies to receive and investigate reports for Federal reservations in which children\nare cared for or reside\xe2\x80\x9d). The Attorney General\xe2\x80\x99s regulations do not address the issue,\n28 C.F.R. pt. 81 (2010), nor do any of the submissions we received.\n\n173\n\n\x0c36 Op. O.L.C. 167 (2012)\n\nsuspected child victims with subsection (d)\xe2\x80\x99s designation of agencies to\nreceive reports.\nThis interpretation is not without some force, but we believe it is inconsistent with other subsections of section 13031 and with the statute\nviewed in its entirety. See Davis v. Mich. Dep\xe2\x80\x99t of Treasury, 489 U.S.\n803, 809 (1989) (\xe2\x80\x9cIt is a fundamental canon of statutory construction that\nthe words of a statute must be read in their context and with a view to\ntheir place in the overall statutory scheme.\xe2\x80\x9d). As noted above, Congress\nphrased subsection (a) using broad language that contains no limitation on\nthe federal lands or facilities in which reporting is required, and no residence-based limitation on the suspected child victims whose potential\nabuse can give rise to a reporting obligation. In fact, section 13031 as a\nwhole is devoid of any language that explicitly limits the suspected child\nvictims whose potential abuse triggers the reporting requirement.\nIf Congress had intended to limit the scope of the VCAA\xe2\x80\x99s reporting\nrequirement in the significant manner you propose, an isolated crossreference to subsection (d) would have been an obscure and backhanded\nway to do so. Cf. Allied Chem. & Alkali Workers of Am., Local Union\nNo. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 170\xe2\x80\x9371 (1971) (\xe2\x80\x9cTo\naccept the Board\xe2\x80\x99s reasoning that the union\xe2\x80\x99s \xc2\xa7 302(c)(5) responsibilities\ndictate the scope of the \xc2\xa7 8(a)(5) collective-bargaining obligation would\nbe to allow the tail to wag the dog.\xe2\x80\x9d). Subsection (d) is entitled \xe2\x80\x9c[a]gency\ndesignated to receive report and action to be taken,\xe2\x80\x9d and purports to\naddress only the agencies to which reports must be made, not the professionals who must make reports or the children who may be the subject of\nreports. Nothing in subsection (d) expressly narrows the scope of potential\nchild victims covered by the reporting requirement. Cf. Comm\xe2\x80\x99r v. Clark,\n489 U.S. 726, 739 (1989) (\xe2\x80\x9cIn construing provisions . . . in which a general statement of policy is qualified by an exception, we usually read the\nexception narrowly in order to preserve the primary operation of the\nprovision.\xe2\x80\x9d).\nIndeed, subsection (d) does not say that the Attorney General may only\ndesignate agencies to receive reports for federal lands and facilities \xe2\x80\x9cin\nwhich children are cared for or reside.\xe2\x80\x9d It simply specifies that the Attorney General \xe2\x80\x9cshall designate an agency to receive and investigate\xe2\x80\x9d reports\nfor such lands and facilities, saying nothing about what the Attorney\nGeneral should do with respect to other federal lands and facilities. And in\n174\n\n\x0cDuty to Report Suspected Child Abuse Under 42 U.S.C. \xc2\xa7 13031\n\nimplementing this authority, the Attorney General has in fact specified\nreporting locations for all covered professionals who learn of any covered\nabuse while engaged in their profession or activity on any federal land or\nfacility, not solely abuse connected to lands or facilities where children\nare cared for or reside. See 28 C.F.R. \xc2\xa7 81.2.\nThe broad reading of the reporting requirement gains further support\nfrom two other provisions in the VCAA that unambiguously apply to all\nfederal lands and facilities, not just those where children are cared for or\nreside. Subsection (e) requires dissemination of a standard written reporting form to \xe2\x80\x9call mandated reporter groups\xe2\x80\x9d \xe2\x80\x9c[i]n every federally operated\n(or contracted) facility, and on all Federal lands.\xe2\x80\x9d In other words, reporting forms must be disseminated not only to federal lands and facilities\nwhere children are cared for or reside, but to all federal lands and facilities. This provision thus appears to presume that mandated reporter\ngroups exist in every federally operated or contracted facility and on all\nfederal lands. This presumption, in turn, strongly suggests that Congress\nintended to require the reporting of abuse discovered by covered professionals in the course of their covered activities on all federal lands and in\nall federal facilities, not simply abuse that occurs on the lands and in the\nfacilities where children are cared for or reside.\nSubsection (h) embodies a similar premise. That provision, entitled\n\xe2\x80\x9c[t]raining of prospective reporters,\xe2\x80\x9d requires \xe2\x80\x9cperiodic training in the\nobligation to report, as well as in the identification of abused and neglected children,\xe2\x80\x9d for \xe2\x80\x9c[a]ll individuals in the occupations listed in subsection (b)(1) of this section who work on Federal lands, or are employed\nin federally operated (or contracted) facilities.\xe2\x80\x9d Again, this provision\nappears to assume that all individuals who work in the listed occupations\non all federal lands and in all federal facilities\xe2\x80\x94not solely those where\nchildren are cared for or reside\xe2\x80\x94might encounter suspected abuse that\nmust be reported. This further suggests that Congress intended to require\ncovered professionals working on all federal lands and in all federal\nfacilities to report suspected abuse, because the across-the-board training\nrequirement otherwise would serve no clear purpose.\nThe broad reading of the reporting requirement is also consistent with\nthe scope of subsection (b). Subsection (b)\xe2\x80\x99s specific list of relevant\nprofessions and activities echoes the mandatory reporter provisions of\nnumerous state laws requiring the reporting of abuse. Compare 42 U.S.C.\n175\n\n\x0c36 Op. O.L.C. 167 (2012)\n\n\xc2\xa7 13031(b) (list set forth supra note 1), with Child Welfare Information\nGateway, Dep\xe2\x80\x99t of Health & Human Services, Mandatory Reporters of\nChild Abuse and Neglect: Summary of State Laws at 2 (Apr. 2010)\n(\xe2\x80\x9cSummary of State Laws\xe2\x80\x9d), http://www.childwelfare.gov/systemwide/\nlaws_policies/statutes/manda.pdf (last visted ca. May 2012). The reporting requirement, as defined in subsections (a) and (b), focuses on the\nnature of the covered professional\xe2\x80\x99s employment activity, not the place\nwhere the child victim is cared for or resides. Indeed, many of the covered professionals\xe2\x80\x94such as film processors, coroners, and ambulance\ndrivers\xe2\x80\x94would likely learn of suspected child abuse in circumstances\nthat provide no indication whether the child victim is cared for or resides\non federal lands or in a federal facility.\nThe VCAA\xe2\x80\x99s legislative history also reflects a congressional intent to\nenact a far-reaching reporting obligation that would protect as many\nvictims of suspected child abuse as possible. Senator Biden, a co-sponsor\nof the legislation, called it a \xe2\x80\x9csweeping title aimed at mak[ing] our criminal justice system more effective in cracking down on child abusers, and\nmore gentle in dealing with the child abuse victims.\xe2\x80\x9d 136 Cong. Rec.\n36,312 (1990); see also id. at 16,240 (statement of Sen. Biden) (\xe2\x80\x9c[Y]ou,\nthe innocent bystander, you, the third party, you have a legal obligation to\nreport when you observe or have reason to believe that an abuse of an\ninnocent child takes place.\xe2\x80\x9d); id. at 16,238 (statement of co-sponsor Sen.\nReid) (\xe2\x80\x9cA critical step in protecting our children is to identify child victims . . . before it is too late. My proposed bill of rights requires certain\nprofessionals to identify who they suspect are victims of abuse and neglect.\xe2\x80\x9d).\nAs we recognize above, our interpretation of the statute does not reconcile perfectly all of the statute\xe2\x80\x99s parts, specifically subsection (a)\xe2\x80\x99s crossreference to subsection (d). Read in context, however, we think subsection\n(d) need not and should not be construed to limit either the scope of the\nreporting requirement under subsection (a) or the Attorney General\xe2\x80\x99s\nauthority to designate agencies to receive the required reports. Such an\ninterpretation would be in marked tension with the breadth of subsection\n(a)\xe2\x80\x99s terms, the requirements of subsections (e) and (h), the scope of\nsubsection (b), and the general evidence of Congress\xe2\x80\x99s intent.\nThe two additional narrowing constructions we identified also fail to\nmake better sense of the statute than the broad reading we have adopted.\n176\n\n\x0cDuty to Report Suspected Child Abuse Under 42 U.S.C. \xc2\xa7 13031\n\nWe first considered whether the reporting requirement should be limited\nto situations involving children who had been abused on federal lands or\nfacilities. But under this reading, as under your suggested reading, we\nwould have to conclude that Congress acted to limit the apparently broad\nreporting requirement set forth in subsection (a) through the oblique\nmechanism of a cross-reference to subsection (d). What is more, this\nreading, too, would make it difficult to explain the breadth of the mandated training and provision of forms on all federal lands and in all federal\nfacilities in subsections (e) and (h) and the scope of covered professionals\nin subsection (b). Further, and significantly, this reading would narrow the\nclass of children whose suspected abuse could give rise to a required\nreport, despite the fact that no provision in the statute\xe2\x80\x94including subsection (d)\xe2\x80\x94addresses the location of the suspected abuse.\nWe also considered a third alternative reading\xe2\x80\x94one that would require\nreporting only from covered professionals who engage in the specified\nprofessions and activities on federal lands or in federal facilities where\nchildren are cared for or may have been abused. This construction, too,\nwould rest on a presumption that Congress intended to limit the scope of\nthe reporting obligation through a single cross-reference to subsection (d).\nFurther, it would be in particularly sharp tension with subsections (e) and\n(h), which require training and distributing reporting forms on all federal\nlands and in all federal facilities, not just where children are cared for or\nreside. This reading would also produce an anomalous result\xe2\x80\x94a professional\xe2\x80\x99s obligation to report facts giving reason to suspect that a child\nunconnected with federal lands or facilities had been abused would turn\non the apparently unrelated question whether other children happened to\nbe cared for or reside on the lands or in the facility where the professional\nworks. In our judgment, these difficulties make this interpretation less\ncoherent than the broad reading we have given the statute.\nWe therefore conclude that the best reading of section 13031 as a whole\nis that a covered professional is required to report suspected child abuse\ndiscovered while engaged in the professions or occupations specified in\nsubsection (b) on federal lands or in federal facilities. 4\nThis interpretation of the reporting requirement is consistent with the law of most\nstates. \xe2\x80\x9cAll States, the District of Columbia, [and all U.S. territories] have statutes identifying persons who are required to report child maltreatment under specific circumstances,\xe2\x80\x9d and, in most states, the list of individuals with reporting obligations closely resembles\n4\n\n177\n\n\x0c36 Op. O.L.C. 167 (2012)\n\nB.\nWe next consider whether \xe2\x80\x9cthe mere knowledge that a patient has\nviewed child pornography [would] trigger a covered professional\xe2\x80\x99s duty\nto report the suspected child abuse, even if he or she does not know the\nidentity of the child or children depicted and has no reason to believe the\npatient knew their identity.\xe2\x80\x9d VA Letter at 2. 5 In raising this question, you\npoint to language in a later part of subsection (d) providing that, when\nreports required by subsection (a) are \xe2\x80\x9creceived by social services or\nhealth care agencies, and involve allegations of sexual abuse, serious\nphysical injury, or life-threatening neglect of a child, there shall be an\nimmediate referral of the report to a law enforcement agency with authority to take emergency action to protect the child.\xe2\x80\x9d Based on subsection\n(d)\xe2\x80\x99s reference to \xe2\x80\x9cthe\xe2\x80\x9d child, you note that, while it is clear that \xe2\x80\x9cthe\n[reporting] requirement applies when the identity of an abused child can\nbe determined by the covered provider so that the law-enforcement agency with jurisdiction can be identified, . . . it is less clear . . . that it applies\nwhen that is not the case.\xe2\x80\x9d VA Letter at 2. 6 We conclude, however, that\nthe text of the statute covers the situation you describe.\nthe list of covered professionals in section 13031. Summary of State Laws at 1\xe2\x80\x932. In fact,\nsome jurisdictions require all persons, not just certain professionals, to report suspected\nchild abuse. Id. at 3. Thus, many, if not all, covered professionals who learn of suspected\nchild abuse on federal lands or in federal facilities would also be required to report under\nstate laws. Covered professionals should therefore consult relevant state law to ensure that\nthey are fully informed about the scope of their legal reporting requirements.\n5 As we have noted, section 13031(b) subjects a wide range of individuals to the reporting duty of subsection (a), including physicians, pharmacists, school officials, detention facility employees, and commercial film and photo processors. See supra note 1\n(quoting 42 U.S.C. \xc2\xa7 13031(b)). Those covered professionals thus may learn of possible\nchild abuse from a variety of individuals besides those commonly referred to as \xe2\x80\x9cpatients.\xe2\x80\x9d For simplicity, however, we use the term \xe2\x80\x9cpatient\xe2\x80\x9d as shorthand for any person\nfrom whom a covered professional may learn of potential child abuse.\n6 Similarly, the Department of Defense states that its relevant policy \xe2\x80\x9cdoes not contemplate that the statute applies in a situation where the patient merely blurts out that he\nhas an addiction to child pornography.\xe2\x80\x9d Instead, under its policy, reporting would be\nrequired in contexts where the patient \xe2\x80\x9cis drawn to a particular child,\xe2\x80\x9d \xe2\x80\x9cknows the identity\nor whereabouts of a child depicted in the pornography,\xe2\x80\x9d \xe2\x80\x9chelp[s] to produce the pornography,\xe2\x80\x9d or in other contexts where \xe2\x80\x9cthere is an identifiable child or identifiable children that\ncould be the subject of action by the child protective agency.\xe2\x80\x9d E-mail for Jeannie S. Rhee,\nDeputy Assistant Attorney General, OLC, from John Casciotti, Office of General Coun-\n\n178\n\n\x0cDuty to Report Suspected Child Abuse Under 42 U.S.C. \xc2\xa7 13031\n\nThe text of section 13031(a) imposes a reporting duty on a covered\nprofessional \xe2\x80\x9cwho, while engaged in a professional capacity or activity\ndescribed in subsection (b) . . . , learns of facts that give reason to suspect that a child has suffered an incident of child abuse.\xe2\x80\x9d \xe2\x80\x9c[C]hild abuse,\xe2\x80\x9d\nin turn, is defined as \xe2\x80\x9cthe physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 13031(c)(1).\nThe statute further provides that \xe2\x80\x9cthe term \xe2\x80\x98sexual abuse\xe2\x80\x99 includes the\nemployment [or] use . . . of a child to engage in . . . sexual exploitation of\nchildren,\xe2\x80\x9d and that \xe2\x80\x9cthe term \xe2\x80\x98exploitation\xe2\x80\x99 means child pornography or\nchild prostitution.\xe2\x80\x9d Id. \xc2\xa7 13031(c)(4), (6). Under these definitions, covered professionals must report suspected abuse if they learn of facts\ngiving reason to suspect that a child \xe2\x80\x9chas suffered an incident of [employment or use to engage in child pornography],\xe2\x80\x9d 7 or \xe2\x80\x9chas suffered an\nincident of [child pornography].\xe2\x80\x9d\nAlthough section 13031 does not define the term \xe2\x80\x9cchild pornography,\xe2\x80\x9d\nit is defined elsewhere in the U.S. Code as\nany visual depiction, . . . whether made or produced by electronic,\nmechanical, or other means, of sexually explicit conduct, where\xe2\x80\x94\n\nsel, Department of Defense (Feb. 26, 2010, 5:02 PM). The Department of State \xe2\x80\x9cdoes not\nhave a formal position or policy addressing whether the reporting requirement is triggered\nwhen a covered professional learns that someone has viewed child pornography, but the\nprofessional does not know the identity of the child or children depicted and has no\nreason to believe that the viewer knows their identities.\xe2\x80\x9d E-mail for Jeannie S. Rhee,\nDeputy Assistant Attorney General, OLC, from Robert Choo, Office of the Legal Adviser,\nDepartment of State (July 21, 2010, 2:35 PM). It recognizes, however, that this situation\n\xe2\x80\x9cmay trigger other actions including the enforcement of child pornography laws, if\napplicable, or internal discipline.\xe2\x80\x9d Id.\n7 The substitution in the text is not completely straightforward, in that the statute defines \xe2\x80\x9cexploitation\xe2\x80\x9d\xe2\x80\x94without any qualification\xe2\x80\x94to include \xe2\x80\x9cchild pornography or child\nprostitution,\xe2\x80\x9d but defines \xe2\x80\x9csexual abuse\xe2\x80\x9d to include \xe2\x80\x9crape, molestation, prostitution, or\nother form[s] of sexual exploitation of children.\xe2\x80\x9d Compare 42 U.S.C. \xc2\xa7 13031(c)(6)\n(definition of \xe2\x80\x9cexploitation\xe2\x80\x9d), with id. \xc2\xa7 13031(c)(4) (definition of \xe2\x80\x9csexual abuse\xe2\x80\x9d). We do\nnot think, however, that the statute intends to draw a strong distinction between \xe2\x80\x9cexploitation\xe2\x80\x9d and \xe2\x80\x9csexual exploitation.\xe2\x80\x9d The latter phrase is not a defined term. And the statute in\nother respects seems to treat the two terms as essentially interchangeable. In particular,\nthe definition of \xe2\x80\x9csexual abuse\xe2\x80\x9d expressly provides that \xe2\x80\x9cprostitution . . . of children\xe2\x80\x9d is a\nform of \xe2\x80\x9csexual exploitation of children,\xe2\x80\x9d and the definition of \xe2\x80\x9cexploitation\xe2\x80\x9d similarly\nprovides that \xe2\x80\x9cchild prostitution\xe2\x80\x9d is a form of \xe2\x80\x9cexploitation.\xe2\x80\x9d Id. \xc2\xa7 13031(c)(4), (6).\n\n179\n\n\x0c36 Op. O.L.C. 167 (2012)\n\n(A) the production of such visual depiction involves the use of\na minor engaging in sexually explicit conduct;\n(B) such visual depiction is . . . of a minor engaging in sexually\nexplicit conduct; or\n(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually\nexplicit conduct.\n18 U.S.C. \xc2\xa7 2256(8). 8 This definition is consistent with dictionary definitions of child pornography. See, e.g., Black\xe2\x80\x99s Law Dictionary 1279 (9th\ned. 2009) (defining \xe2\x80\x9cchild pornography\xe2\x80\x9d as \xe2\x80\x9c[m]aterial depicting a person\nunder the age of 18 engaged in sexual activity\xe2\x80\x9d).\nUnder these definitions, child pornography is not a specific action or\nset of actions, but an end product, a particular kind of visual depiction that\nis \xe2\x80\x9cmade or produced.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 2256(8). It is thus not entirely clear\nwhat it means \xe2\x80\x9cto engage in child pornography,\xe2\x80\x9d or for \xe2\x80\x9ca child\xe2\x80\x9d to have\n\xe2\x80\x9csuffered an incident of\xe2\x80\x9d child pornography. Notably, however, certain\nother forms of \xe2\x80\x9cchild abuse\xe2\x80\x9d in section 13031 are also defined as end\nresults rather than actions. \xe2\x80\x9c[P]hysical injury,\xe2\x80\x9d for example, is defined to\ninclude, among other things, \xe2\x80\x9clacerations, fractured bones, burns, [and]\ninternal injuries.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 13031(c)(2). And it is relatively straightforward to conclude that a child has \xe2\x80\x9csuffered an incident of\xe2\x80\x9d lacerations\nor fractured bones if the child has been subjected to physical abuse that\nresults in those injuries. We think it is similarly clear that, whatever else\nthe phrase may include, a person has \xe2\x80\x9cengage[d] in child pornography\xe2\x80\x9d if\nthat person has produced or created pornographic images of children, and\nthat \xe2\x80\x9ca child has suffered an incident of \xe2\x80\x9d child pornography if that child\nhas been made the subject of pornographic images. The pornography is \xe2\x80\x9ca\npermanent record\xe2\x80\x9d of the abusive conduct of creating a pornographic\nimage of a child. New York v. Ferber, 458 U.S. 747, 759 (1982).\nBased on this analysis, we conclude that a covered professional who\nlearns that a patient under his or her care has viewed child pornography\nmay be aware of \xe2\x80\x9cfacts that give reason to suspect that a child\xe2\x80\x9d\xe2\x80\x94the\nOther definitions in section 13031, including the definition of \xe2\x80\x9csexually explicit conduct\xe2\x80\x9d\xe2\x80\x94a concept closely related to \xe2\x80\x9cchild pornography,\xe2\x80\x9d as the definition quoted above\nmakes clear\xe2\x80\x94track definitions in the same chapter (chapter 110) of the criminal code.\nCompare 42 U.S.C. \xc2\xa7 13031(c)(5) (2006), with 18 U.S.C. \xc2\xa7 2256(2) (2006).\n8\n\n180\n\n\x0cDuty to Report Suspected Child Abuse Under 42 U.S.C. \xc2\xa7 13031\n\nsubject of the specific pornographic images viewed by the patient\xe2\x80\x94\xe2\x80\x9chas\nsuffered an incident of child abuse.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 13031(a).\nWe do not believe a covered professional in such a situation is relieved\nof an obligation to report such facts simply because he or she does not\nknow or have reason to know, or have reason to believe a patient knows,\nthe identity of the child depicted in the pornography. Subsections (a) and\n(d) of section 13031 do not require, either expressly or by implication,\nthat a covered professional (or his or her patient) know the identity of the\nchild or children abused in order to have a reporting obligation. We generally \xe2\x80\x9c\xe2\x80\x98resist reading words or elements into a statute that do not appear\non its face.\xe2\x80\x99\xe2\x80\x9d Dean v. United States, 556 U.S. 568, 572 (2009) (quoting\nBates v. United States, 522 U.S. 23, 29 (1997)). Moreover, imposing a\nrequirement that the victim\xe2\x80\x99s identity be known would be in tension with\nCongress\xe2\x80\x99s protective purpose. See, e.g., 136 Cong. Rec. 36,312 (1990)\n(statement of Sen. Biden) (noting that the statute would \xe2\x80\x9cmake [the]\ncriminal justice system more effective in cracking down on child abusers\xe2\x80\x9d).\nEven assuming that the statute\xe2\x80\x99s references to \xe2\x80\x9ca child\xe2\x80\x9d in section\n13031(a) and (d) limit the reporting requirement to situations involving\n\xe2\x80\x9ca\xe2\x80\x9d specific, potentially identifiable child, that limitation provides no\nbasis for imposing the additional prerequisites to reporting that the\ncovered professional know or have reason to believe his or her patient\nknows the identity of a child depicted in pornography the patient admits\nto viewing. Pornography may well involve \xe2\x80\x9ca\xe2\x80\x9d specific, potentially\nidentifiable child even if neither covered professionals nor their patients\nknow the child\xe2\x80\x99s identity. Even if covered professionals (or their patients) do not know the identity of any children depicted in pornography\nviewed by a patient, a report may lead authorities to specific, identifiable children. While some child pornography may be the work of professionals and therefore difficult to link to specific identifiable children,\nother such images are homemade recordings, taken in domestic contexts,\nof sexually abusive acts \xe2\x80\x9ccommitted against young neighbors or family\nmembers,\xe2\x80\x9d and therefore traceable through law enforcement investigation to a particular child or children. Philip Jenkins, Beyond Tolerance:\nChild Pornography on the Internet 82 (2001); see also Richard Wortley\n& Stephen Smallbone, Community Oriented Policing Services, Dep\xe2\x80\x99t of\nJustice, Problem-Oriented Guides for Police, Problem-Specific Guides\nSeries No. 41, Child Pornography on the Internet at 9 (2006), http://\n181\n\n\x0c36 Op. O.L.C. 167 (2012)\n\nwww.cops.usdoj.gov/Publications/e04062000.pdf (last visited ca. 2012)\n(\xe2\x80\x9c[M]ore commonly, amateurs make records of their own sexual abuse\nexploits, particularly now that electronic recording devices such as\ndigital cameras and web cams permit individuals to create high quality,\nhomemade images.\xe2\x80\x9d).\nFor the same reasons, section 13031(d)\xe2\x80\x99s statement that, in certain\ncircumstances, social services or health care agencies must refer reports of\nsuspected child abuse \xe2\x80\x9cto a law enforcement agency with authority to take\nemergency action to protect the child\xe2\x80\x9d (emphasis added) should not be\nread to restrict the reporting obligation to situations in which covered\nprofessionals know the identity of the children who are the victims of\nsuspected abuse. This law-enforcement referral requirement applies not to\ncovered professionals, but to the \xe2\x80\x9csocial services or health care agencies\xe2\x80\x9d\nthat receive reports of suspected child abuse. 42 U.S.C. \xc2\xa7 13031(d). The\nstatute expressly contemplates that the agency receiving the report, not the\ncovered professional, must ascertain which law enforcement agency is\n\xe2\x80\x9cauthori[zed] to take emergency action to protect the child.\xe2\x80\x9d Id. And\nalthough the referral requirement could be read to reflect an assumption\nthat these agencies generally will know the identity of the child in need of\nprotection, the requirement also could be satisfied by identifying a law\nenforcement agency with authority to initiate an investigation to ascertain\nthe identity and location of the suspected victim.\nWe therefore conclude that the fact that a patient has viewed child pornography may constitute a \xe2\x80\x9cfact[] that give[s] reason to suspect that a\nchild has suffered an incident of child abuse\xe2\x80\x9d under section 13031, and\nthat a covered professional is not relieved of the obligation to report such\na fact simply because the identity of the injured child is unknown.\nC.\nAs noted, the VCAA provides for criminal penalties. 18 U.S.C.\n\xc2\xa7 2258. When interpreting a statute\xe2\x80\x99s civil provision, the violation of\nwhich is also subject to criminal sanction, the rule of lenity may be\ninvoked to resolve ambiguity in the provision. See Leocal v. Ashcroft,\n543 U.S. 1, 11\xe2\x80\x9312 & n.8 (2004); United States v. Thompson/Center\nArms Co., 504 U.S. 505, 517\xe2\x80\x9318 & n.10 (1992) (plurality opinion).\nHere, however, we resolved both of the interpretive questions you\npresented without employing the rule of lenity, because we concluded\n182\n\n\x0cDuty to Report Suspected Child Abuse Under 42 U.S.C. \xc2\xa7 13031\n\nthat the provisions at issue did not present any \xe2\x80\x9cgrievous ambiguity or\nuncertainty\xe2\x80\x9d that could not be addressed by applying ordinary tools of\nstatutory construction. Muscarello v. United States, 524 U.S. 125, 139\n(1998) (internal quotation marks omitted).\nWe recognize, however, that the statutory trigger for the reporting requirement\xe2\x80\x94the learning of \xe2\x80\x9cfacts that give reason to suspect that a child\nhas suffered an incident of child abuse\xe2\x80\x9d\xe2\x80\x94is extremely broad. For example, the statute\xe2\x80\x99s text does not appear to require either that the suspected\nabuse have occurred recently or that there be a direct connection between\nthe facts and a particular perpetrator of or witness to abuse. Thus, a doctor\xe2\x80\x99s duty to report conceivably could be triggered by a patient\xe2\x80\x99s revelation that his neighbor confided that he was abused as a child some decades ago, a patient\xe2\x80\x99s revelation that acquaintances long ago had viewed\nchild pornography, or a patient\xe2\x80\x99s expression of amazement that he had\nlearned from the Internet that child abuse or child pornography was far\nmore prevalent than he had previously believed. 9 Because failures to\nreport may be criminally prosecuted, courts may be concerned about the\nuncertain breadth of the suspected abuse that may be subject to section\n13031\xe2\x80\x99s reporting requirement, particularly when combined with the\nambiguities discussed in Parts II.A and II.B.\nYou have not asked us to define the boundaries of the phrase \xe2\x80\x9cfacts\nthat give reason\xe2\x80\x9d to suspect child abuse or to discuss the application of\n18 U.S.C. \xc2\xa7 2258, but we note that covered professionals who fail to\nmake a report required by the statute may not always be criminally liable\nfor their failure to do so. Significantly, although the VCAA\xe2\x80\x99s criminal\npenalty provision lacks an express mens rea requirement, courts generally \xe2\x80\x9cinterpret[] criminal statutes to include broadly applicable scienter\nrequirements, even where the statute by its terms does not contain them.\xe2\x80\x9d\nX-Citement Video, 513 U.S. at 70. 10 Courts deciding whether to impose\n9 We do not consider here whether other aspects of the language quoted in the text\nabove, or of language elsewhere in the statute, might limit its application in some such\nsituations. A court might also adopt a narrowing construction of the statutory trigger for\nthe reporting requirement to avoid notice concerns. See Skilling v. United States, 130\nS. Ct. 2896, 2931 (2010).\n10 As the Supreme Court has explained, the presumption that a statute contains a mens\nrea requirement even when that requirement is not explicit in the statutory text is consistent with the rule of lenity. See Liparota v. United States, 471 U.S. 419, 427\xe2\x80\x9328 (1985).\n\n183\n\n\x0c36 Op. O.L.C. 167 (2012)\n\ncriminal penalties on a covered professional for failing to file a report\nwould have to decide (i ) whether to construe 18 U.S.C. \xc2\xa7 2258 to impose\na mens rea requirement, and (ii) if they do so, what the required mens rea\nis. And while for some statutes, courts have required only that a defendant\nhave knowledge of the \xe2\x80\x9cfacts that make his conduct illegal,\xe2\x80\x9d Staples v.\nUnited States, 511 U.S. 600, 605 (1994), for others, courts have required\nthat a defendant know that his or her conduct was \xe2\x80\x9cunauthorized or illegal\xe2\x80\x9d before criminal liability could be imposed, particularly where failure\nto impose such a requirement would \xe2\x80\x9ccriminalize a broad range of apparently innocent conduct,\xe2\x80\x9d Liparota v. United States, 471 U.S. 419, 426,\n434 (1985). Here, a court concerned about ordinary citizens\xe2\x80\x99 ability to\ndecipher the contours of the abuse that must be reported, or about the\nstatute\xe2\x80\x99s punishment of a failure to act rather than an affirmative act,\nmight be inclined to adopt this kind of heightened mens rea requirement.\nSee Skilling v. United States, 130 S. Ct. 2896, 2927\xe2\x80\x9328 (2010) (noting that\na \xe2\x80\x9c\xe2\x80\x98criminal offense\xe2\x80\x99\xe2\x80\x9d must be defined \xe2\x80\x9c\xe2\x80\x98with sufficient definiteness that\nordinary people can understand what conduct is prohibited\xe2\x80\x99\xe2\x80\x9d (quoting\nKolender v. Lawson, 461 U.S. 352, 357 (1983))); id. at 2933 (noting that a\n\xe2\x80\x9cmens rea requirement\xe2\x80\x9d can help \xe2\x80\x9cblunt[] . . . notice concern[s]\xe2\x80\x9d); Lambert v. California, 355 U.S. 225, 228 (1957) (holding that due process\nrequires that a person who is \xe2\x80\x9cwholly passive and unaware of any wrongdoing\xe2\x80\x9d have notice of a registration requirement before she may be held\ncriminally liable).\nIII.\nIn sum, any person who, while engaged in a professional capacity or\nactivity described in subsection (b) of section 13031 on any federal land\nor in any federally operated (or contracted) facility, learns of \xe2\x80\x9cfacts that\ngive reason to suspect that a child has suffered any incident of child\nabuse\xe2\x80\x9d must report the suspected abuse to a designated agency. The fact\nthat a patient has viewed child pornography may \xe2\x80\x9cgive reason to suspect\nthat a child has suffered an incident of child abuse\xe2\x80\x9d under the statute, and\nInferring a mens rea requirement is, however, a distinct practice from applying the rule of\nlenity, and the Court has suggested that lenity principles may not apply in determining the\ndegree of mens rea that is required. See Staples v. United States, 511 U.S. 600, 619 n.17\n(1994).\n\n184\n\n\x0cDuty to Report Suspected Child Abuse Under 42 U.S.C. \xc2\xa7 13031\n\na covered professional is not relieved of an obligation to report the possible abuse simply because neither the covered professional nor the patient\nknows the identity of the child depicted in the pornography. As described,\nhowever, a covered professional\xe2\x80\x99s failure to file a required report will not\nnecessarily result in criminal liability.\nVIRGINIA A. SEITZ\nAssistant Attorney General\nOffice of Legal Counsel\n\n185\n\n\x0c'


b'Applicability of 21 U.S.C. \xc2\xa7 952(a) to the Importation of\nMorphine Sulfate by the General Services Administration\nThe provision in 21 U .S C . \xc2\xa7 952(a), w hich prohibits im portation of certain controlled substances\nex cep t in c e rta in sp e c ifie d c irc u m sta n c e s , a p p lie s to im p o rta tio n by the U nited S tates\nG overnm ent.\nNotw ithstanding the canon of statutory construction that a law should not be read to im pose new\nburdens on the governm ent in derogation of its preexisting nghts and privileges, well-established\nand consistent adm inistrative practice and interpretation of the coverage of 2 1 U .S .C . \xc2\xa7 952(a), as\nwell as its legislative history, indicate that that law covers im portations by the U nited States\ngovernm ent.\n\nOctober 18, 1982\nMEMORANDUM OPINION FOR THE COMMISSIONER,\nFEDERAL PROPERTY RESOURCES SERVICE,\nGENERAL SERVICES ADMINISTRATION\nThis responds to your request for our opinion whether 21 U.S.C. \xc2\xa7 952(a)\napplies to the importation of controlled substances by the United States or its\nagents. This question has arisen in the context of a proposed importation of\nmorphine sulfate from Turkey, with which your agency has been involved.\nSection 952(a) of Title 21, U.S. Code, is a central provision of the Controlled\nSubstances Import and Export Act of 1970 (the Act).1 The broad terms of\n\xc2\xa7 952(a) provide that it \xe2\x80\x98\xe2\x80\x9cshall be unlawful\xe2\x80\x9d to import into the United States\ncontrolled substances except in certain circumstances.2 On its face, \xc2\xa7 952(a)\ndoes not exclude the United States from its coverage. On the other hand, it also\ndoes not specifically include the United States. Accordingly, in view of the fact\nthat the provision imposes limitations on those whom it covers, and in light of the\nlongstanding canon of statutory construction that statutes imposing burdens\nshould not lightly be read to deny governments preexisting rights or privileges,3 a\n\n1Title III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is entitled the Controlled\nSubstances Import and Export Act of 1970. As its name indicates. Title III places a number of restrictions on the\nimport into and export from the United States of controlled substances See Pub. L. No. 91-513, Title III. 91st\nCong., 2d Sess , 84 Stat. 1285, 21 U S C. \xc2\xa7\xc2\xa7 951-966\n2 The language of 21 U.S C \xc2\xa7 952(a) is quoted in its entirety in part II infra\n3 This canon of statutory construction is stated in a number o f judicial opinions. See, e.g., Hancock v Train, 426\nU S. 167, 179 (1976); United States v. Wittek, 337 U S. 346 (1949); United States v. United Mine Workers c f\nAmerica. 330 U S. 258, 272-73(1947); United States v Herron. 87 U.S. (20 Wall ) 251 (1874); United States v.\nKnight, 39 U .S. (14 Pet ) 301 (1840)\n\n577\n\n\x0cquestion arises whether the statute does in fact cover importations by the United\nStates, such as that proposed in this case.\nWe have concluded that, despite the canon of construction referred to in the\nprevious paragraph, the statute and pertinent legislative materials do demonstrate\nCongress\xe2\x80\x99 intention that the law\xe2\x80\x99s limitations apply broadly. This intention would\nnot be consistent with implying a general exception for actions by the United\nStates or its agents. This view is strongly buttressed by the fact, discussed below,\nthat the federal agency most directly responsible for enforcing the Act\xe2\x80\x94 the Drug\nEnforcement Administration (DEA)\xe2\x80\x94 consistently has taken the position that the\nstatute does reach actions by the United States. In such circumstances, we find no\nadequate justification in the canon of interpretation\xe2\x80\x94 a device for use in doubtful\ncases\xe2\x80\x94 for concluding that 21 U .S.C . \xc2\xa7 952(a) does not apply to actions by the\nUnited States. In practical terms, this means that the importation by the United\nStates of controlled substances referred to in \xc2\xa7 952(a) is prohibited unless one of\nthe exceptions in \xc2\xa7 952(a) is found to pertain.\nI. Background Facte\nYour opinion request follows an earlier opinion of this Office, dated July 19,\n1982, which also dealt with the proposed importation of morphine sulfate from\nTurkey.4 In that opinion, we assumed arguendo that \xc2\xa7 952(a)\xe2\x80\x99s proscription on\nthe importation of controlled substances, except in certain circumstances, does\ncover actions by the United States.5 Passing that issue, we noted that further\nattention might profitably be paid to the exceptions themselves, viewed in light of\nthe particular facts concerning the proposed importation of morphine sulfate.\nSpecifically, we suggested that the involved agencies should ascertain whether\nthe \xe2\x80\x9c emergency\xe2\x80\x9d exception in 21 U.S.C. \xc2\xa7 952(a)(2)(A) could apply to the\nproposed importation of morphine sulfate for purposes of replenishing the\nNational Defense Stockpile\xe2\x80\x99s supply of such substances. We noted that we were\nnot aware of whether the facts would establish the basis for invoking such an\nexception. Nevertheless, we sought to identify the appropriate lines of inquiry.6\nHaving done so, we indicated that if the facts would not support the use of the\nemergency exception, we would be glad to address the underlying legal question\nregarding 21 U .S.C . \xc2\xa7 952(a)\xe2\x80\x99s applicability to the United States.\n4 See M emorandum for Francis M. Mullen, J r., Acting Administrator, Drug Enforcement Administration, from\nTheodore B . Olson, Assistant Attorney Genera), Office of Legal Counsel, entitled \xe2\x80\x9c Importation of Morphine\nSulfate from TUrkey\xe2\x80\x9d (July 19,1982). [Note: The July 19,1982 opinion is reprinted in this volume at p. 455, supra.\nEd.]\n5 We noted in the July 19,1982 opinion not only that an argument could be made that21 U .S.C . \xc2\xa7 952(a)doesnot\napply to the United States, but also that a contrary argument could be advanced. In view of the lack of any sure\nfooting for the contention regarding the nonapplicability of \xc2\xa7 952(a) to the United States, we suggested that further\nattention be paid to the possibility o f utilizing the statutory exception for an emergency in present circumstances.\n6 For instance, we noted that, in order to m ake the requisite finding for using the emergency exception in 21\nU S C . \xc2\xa7 952(a)(2)(A), it would be \xe2\x80\x9c essential first to identify precisely what that need [for morphine sulfate] is,\nsecond to determ ine w hether failure to fulfill that need creates an emergency situation, and finally to examine\nw hether dom estic supplies are adequate to meet the need as identified. . . \xe2\x80\x9d Memorandum, supra note 4 , at 4.\n\n578\n\n\x0cII. Analysis of the Statute\nThe question before us is one of statutory construction. The pertinent language\nis as follows:\nIt shall be unlawful to import into the customs territory of the\nUnited States from any place outside thereof (but within the\nUnited States), or to import into the United States from any place\noutside thereof, any controlled substance in schedule I or II of\nsubchapter I of this chapter, or any narcotic drug in schedule III,\nIV, or V of subchapter I of this chapter, except that\xe2\x80\x94\n(1) such amounts of crude opium and coca leaves as the\nAttorney General finds to be necessary to provide for medical,\nscientific, or other legitimate purposes, and\n(2) such amounts of any controlled substance in schedule I\nor II or any narcotic drug in schedule III, IV, or V that the\nAttorney General finds to be necessary to provide for the\nmedical, scientific, or other legitimate needs of the United\nStates\xe2\x80\x94\n(A) during an emergency in which domestic supplies of\nsuch substance or drug are found by the Attorney General to\nbe inadequate, or\n(B) in any case in which the Attorney General finds that\ncompetition among domestic manufacturers of the con\xc2\xad\ntrolled substance is inadequate and will not be rendered\nadequate by the registration of additional manufacturers\nunder section 823 of this title,\nmay be so imported under such regulations as the Attorney\nGeneral shall prescribe. No crude opium may be so imported for\nthe purpose of manufacturing heroin or smoking opium.7\nThere is no question that morphine sulfate\xe2\x80\x94 a refined derivative, or salt, of\nopium\xe2\x80\x94 is a schedule II controlled substance within the meaning of \xc2\xa7 952(a).8 It\nis not \xe2\x80\x9c crude opium\xe2\x80\x9d for purposes of \xc2\xa7 952(a)(1). Accordingly, its importation\ninto the United States in present circumstances is barred unless one of the\nexceptions in \xc2\xa7 952(a)(2) applies, or unless\xe2\x80\x94 and this is the issue about which\nyou have sought our opinion\xe2\x80\x94 \xc2\xa7 952(a) as a whole does not cover actions of the\nUnited States but rather is limited to actions by private, nongovernmental parties.\nOn the one hand, it may be argued that the broad terms of \xc2\xa7 952(a) should not\nbe read to cover actions by the United States in light of the canon of construction\n7 21 U.S C \xc2\xa7 952(a)\n8 See 21 U S C. \xc2\xa7 812(c), 21 C.F.R. \xc2\xa7 1308.12. Morphine is the pnncipal alkaloid, or organic base, of opium,\nwhich is the coagulated juice o f the opium poppy plant, papaver sommferum. Morphine in the form of a soluble\nsalt\xe2\x80\x94 such as morphine sulfate\xe2\x80\x94 is used as an analgesic o r a sedative. See Webster\xe2\x80\x99s Third New International\nDictionary 1471 (1976); 15 Encyclopaedia Bntanmca 856 (1971)\n\n579\n\n\x0cidentified at the outset of this opinion. This canon holds that, absent contrary\nindication in relevant legislative materials, a statute imposing burdens normally\nshould not be read to impose those burdens on the government in derogation of its\npreexisting rights or privileges.9\nHistorically, this rule originated in the English doctrine that the Crown is\npresumed to be unaffected by acts of Parliament unless the acts are directed\nspecifically at the C row n.10 Because in the United States sovereignty always has\nresided by theory and practice in the people, rather than in a monarch, transplan\xc2\xad\ntation of the English rule to this country necessarily has led to its subtle\ntransformation. The rule\xe2\x80\x99s chief policy basis in American case law is the notion\nthat Congress is presumed to have intended to preserve on behalf of the people the\nefficient functioning of government, and therefore a statute generally should not\nbe read to impose new burdens on government without indications that this in fact\nwas Congress\xe2\x80\x99 intention." In the present context, this rule of construction could\nbe used as a basis for arguing that \xc2\xa7 952(a) was not intended to impose new\nburdens on the United States, for the provision does not clearly state that it was so\nintended.\nOn the other hand, the foregoing canon of construction should not be viewed as\nan absolute guide to the construction of any statute. One commentator has stated\nthat although the canon has been useful in a number of cases, \xe2\x80\x9c [i]t is questionable\n. . . whether the rule still continues to command the same influence today.\xe2\x80\x9d 3 C.\nSands, Sutherland Statutory Construction \xc2\xa7 62.03 (4th ed. 1974). The \xe2\x80\x9c rule\xe2\x80\x9d\nthat the government normally is to be excluded from coverage of statutes\nimposing burdens is, in fact, subject to numerous exceptions. It is merely a guide\nto the most plausible construction of legislative intent when other indications of\nsuch intent are not present or dominant. The central inquiry when faced, as we\nare here, with possible application of the canon of construction is to determine\nwhether there are other specific grounds on which to rest an interpretation of the\nstatute that are more definite and ultimately more helpful than the canon of\nconstruction itself.12\nIn present circumstance, one of the most striking features is the existence of a\nlongstanding, consistent, and specific administrative construction of the statute\nin question on the very point at issue here. In conversations with officials of the\nDrug Enforcement Administration\xe2\x80\x94 which is responsible for administering the\nstatute of which \xc2\xa7 952(a) is a central part\xe2\x80\x94 we have learned that for years the\nagency has interpreted \xc2\xa7 952(a) as applying not only to importations of con\xc2\xad\n9 See U nited States v United Mine Workers o f America, 330 U S 258. 272-73 (1947), United States v Herron,\n87 U .S. (20 Wall.) 251 (1874). United States v. Knight, 39 U S. (14 Pet.) 301 (1840)\n10 See U nited States v. California, 297 U .S . 175, 186 (1936); see also 3 C Sands, Sutherland Statutory\nConstruction \xc2\xa7 62 01 (4th ed 1974).\n11 See Hancock v 7ram . 4 2 6 U S . 167, 169 (1976), Letter Minerals, Inc v. U nitedStates, 352U S. 220, 224-25\n(1957); U nitedStates v Wittek. 337 U S 346 (1949); Guaranty Trust Co v. U nitedStates. 304 U.S. 126, 132-33\n(1938).\n12 As the Supreme Court has noted, the canon of construction is merely \xe2\x80\x9c an aid to consistent construction of\nstatutes of the enacting sovereign when their purpose is in doubt, but it does not require that the aim of a statute fairly\nfo be inferred be disregarded because not explicitly stated.\xe2\x80\x9d United States v California, 297 U.S 175, 186 (1936).\nSee United States v Wittek. 337 U S 346, 3 58-59 (1949); 3 C Sands, Sutherland Statutory Construction \xc2\xa7 62 02\n(4th ed. 1974)\n\n580\n\n\x0ctrolled substances by private parties, but also to importations of such substances\nby the government itself, specifically including federal agencies. Thus, in the\ncourse of the routine administration of this statute, the DEA and its predecessor\nagency13 have confronted precisely the issue that has been put to us. The federal\nagencies involved have been required to meet all statutory and regulatory\nrequirements pertaining to importations of controlled substances.14\nFor instance, we have been told that when an agency, such as the National\nInstitute on Drug Abuse of the Department of Health and Human Services, has\nsought to import quantities of controlled substances for laboratory tests, the\nagency has been required by the DEA to comply with applicable registration and\npermit requirements. These requirements, authorized by statute, see 21 U.S.C.\n\xc2\xa7\xc2\xa7 957 & 958, are set forth in the DEA\xe2\x80\x99s regulations, see 21 C.F.R. \xc2\xa7\xc2\xa7 1311 &\n1312 (1981). Among other things, these regulations require importers of con\xc2\xad\ntrolled substances to obtain an annual registration, unless specifically exempted\nfrom the requirement. See 21 C.F.R. \xc2\xa7 1311.21. Among those who are exempt\nfrom this requirement are officials of the United States Army, Navy, Marine\nCorps, Air Force, Coast Guard, or Public Health Service, see 21 C.F.R.\n\xc2\xa7 1311.24, and officials of the United States Customs Service, the Food and\nDrug Administration, and \xe2\x80\x9c any other Federal officer who is lawfully engaged in\nthe enforcement of any Federal law relating to controlled substances. . . .\xe2\x80\x9d See\n21 C.F.R. \xc2\xa7 1311.25. By exempting these federal officials, the DEA has plainly\nindicated its understanding that otherwise, the requirements would have applied\nto the officials\xe2\x80\x94 as they do to officials not exempted. Furthermore, before any\nperson may import a controlled substance, a permit must be issued. See 21\nC.F.R. \xc2\xa7 1312.11. Specific grounds for the issuance of such permits are set forth\nin the DEA\xe2\x80\x99s regulations. See 21 C.F.R. \xc2\xa7 1312.13. These permit requirements,\nthe DEA has told us, also have regularly been applied to federal agencies seeking\nto impiort quantities of controlled substances for official purposes.\nThe existence of such a consistent agency interpretation of its own authorizing\nlegislation is viewed by courts as being of substantial importance. The Supreme\nCourt has underscored that \xe2\x80\x9c [w]hen faced with a problem of statutory con\xc2\xad\nstruction, this Court shows great deference to the interpretation given the statute\nby the officers or agency charged with its administration.\xe2\x80\x9d Udall v. Tollman, 380\nU.S. 1, 16 (1965). The reason for this deference is that agencies have consider\xc2\xad\nable familiarity with the nuances of their authorizing legislation and its applica\xc2\xad\ntion in practice, and may generally be presumed to be expert in its construction.\nSee generally Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969);\nZemel v. Rusk, 381 U.S. 1, 11-12 (1965). Of course, courts remain ultimate\narbiters of the law in contested cases. S ee, e .g ., V olksw agenw erk Aktiengesellschaft v. FMC, 390 U.S. 261, 272 (1968). However, courts give\n13 The Drug Enforcement Administration was created by a reorganization plan in 1973 The description in text of\nDEA\xe2\x80\x99s interpretation of \xc2\xa7 952(a), enacted in 1970, also applies, we are told, to its predecessor, the Bureau of\nNarcotics and Dangerous Drugs\n14 Our discussion of the D EA\xe2\x80\x99s interpretation of \xc2\xa7 952(a) necessarily relies on factual representations made to us\nby DEA officials\n\n581\n\n\x0csignificant weight to a plain and longstanding administrative construction. The\nSupreme Court has explained that such a construction has the power \xe2\x80\x9c to per\xc2\xad\nsuade,\xe2\x80\x9d if not \xe2\x80\x9c control,\xe2\x80\x9d judicial analysis:\nWe consider that the rulings, interpretations and opinions of\n[agencies], while not controlling upon the courts by reason of\ntheir authority, do constitute a body of experience and informed\njudgment to which courts and litigants may properly resort for\nguidance. The weight of such a judgment in a particular case will\ndepend upon the thoroughness evident in its consideration, the\nvalidity of its reasoning, its consistency with earlier and later\npronouncements, and all those factors which give it power to\npersuade, if lacking power to control.\nG eneral Electric Co. v. Gilbert, 429 U.S. 125, 141-2 (1976), quoting Skidmore\nv. Swift & C o., 323 U .S. 134, 140 (1944).\n\nIn this case, the DEA\xe2\x80\x99s understanding of the coverage of federal agencies by\n\xc2\xa7 952(a) is well-established and consistent. Moreover, it would appear to be the\nproduct of informed judgment. Certainly, the DEA has been confronted repeat\xc2\xad\nedly with situations in which it has had to determine how to treat federal agencies\nunder \xc2\xa7 952(a). Each time, we are told, it has reached the view that such agencies\nare subject, as are private parties, to applicable statutory and regulatory require\xc2\xad\nments. Furthermore, this interpretation, we understand, dates back at least to the\ntime of the passage of \xc2\xa7 952(a) in 1970, if not to earlier years when \xc2\xa7 952(a)\xe2\x80\x99s\nimmediate predecessor (which was similar in nature) was in effect. In such\ncircumstances, courts would pay even greater attention to the agency\xe2\x80\x99s view. See,\ne .g ., SEC v. Sloan, 436U .S. 103, 120 (1978); E. I .D uPont de Nemours & Co. v.\nTrain, 430 U.S. 112, 134\xe2\x80\x9435 (1977); Union Electric Co. v. EPA, 427 U.S. 246,\n256 (1976); Train v. Natural Resources Defense Council, 421 U.S. 60, 87\n(1975); H ercules, Inc. v. EPA, 598 F.2d 91, 101 (D.C. Cir. 1978).\nOur own review of the statute\xe2\x80\x99s legislative history tends, at a general level, to\nconfirm the D EA \xe2\x80\x99s understanding of \xc2\xa7 952(a)\xe2\x80\x99s coverage. First, there are un\xc2\xad\nmistakable indications that Congress intended the importation restriction to\noperate as a critical element in the statute\xe2\x80\x99s scheme of controlling the importation\nof controlled substances.15 Furthermore, there are indications that any importa\xc2\xad\ntion of controlled substances by a ll importers\xe2\x80\x94 whether or not a private importer\nthat might be suspected of seeking to engage in illicit conduct\xe2\x80\x94 was intended to\nbe covered. Thus, the major committee report on\'the bill containing \xc2\xa7 952(a) that\nwas enacted in 1970 stated that the importation restriction refers \xe2\x80\x9c to any article,\nany bringing in or introduction of such article into any area. . . .\xe2\x80\x99\xe2\x80\x99 H.R. Rep. No.\n1444 (Pt. 1), 91st C ong., 2d Sess. 74 (1970) (emphasis added). In floor debate on\nthe predecessor provision, the Narcotic Drugs Import and Export Act of 1922,\nPub. L. No. 227, 67th Cong., 2d Sess., 42 Stat. 596, 21 U.S.C. \xc2\xa7 173 (1964),\nthe provision\xe2\x80\x99s proponent stated that the predecessor importation restriction was\n15 See H .R . Rep. No. 1444 (Pt. 1). 91st C ong., 2d Sess. 71-80 (1970). See also 116 Cong. Rec. 33317(1970).\n\n582\n\n\x0can effort to use \xe2\x80\x9c best efforts to control or cause to be controlled all those who\nimport or export morphine, cocaine, or their respective salts.\xe2\x80\x9d 62 Cong. Rec.\n6334 (1922) (emphasis added). These references in the legislative history to \xe2\x80\x9c any\nimportation\xe2\x80\x9d and \xe2\x80\x9c all those who import\xe2\x80\x9d morphine or a salt of morphine suggest\nthat Congress intended a broad coverage of the importation restriction. It is\nconsistent with this intent to construe \xc2\xa7 952(a), as the DEA has done, to cover\nactions of \\jthe United States.\nFurthermore, there is some indication in the legislative history that one\npurpose served by the importation restriction is to prevent drug manufacturers in\nforeign countries from having access to the domestic American market in\nfinished narcotic drugs. Thus, the relevant Committee report on the 1922\npredecessor to \xc2\xa7 952(a) stated that the restriction on the importation of finished\nnarcotic drugs (as opposed to raw opium and coca leaves) \xe2\x80\x9c will also . . .close the\nlegitimate domestic market to foreign manufacturers.\xe2\x80\x9d H.R. Rep. No. 852, 67th\nCong., 2d Sess. 7-8 (1922).16 Although the precise reasons for closing the\ndomestic market to foreign manufacturers may not be entirely clear, they may\nreasonably be understood to include the desire to protect the American drug\nindustry from foreign competition\xe2\x80\x94 as well as simply to shut off importation in\norder to prevent illicit trafficking in drugs. Certainly, domestic drug industry\nrepresentatives involved in manufacturing finished narcotics have so understood\nthe intent of \xc2\xa7 952(a). See, e .g ., Controlled Dangerous Substances, Narcotics\nand Drug Control Laws: Hearings Before the House Committee on Ways and\nMeans, 91st Cong., 2d Sess. 458-62 (1970) (testimony of Stephen Ailes on\n\nbehalf of three American firms licensed in 1970 to import opium for processing\nfor legitimate medical purposes). Moreover, we understand from our con\xc2\xad\nversations with DEA officials that the DEA itself is of the view that one\xe2\x80\x94\nalthough not the major\xe2\x80\x94statutory aim served by \xc2\xa7 952(a) is the protection of the\ndomestic American drug industry from foreign competition.\nWe would not want to rest an interpretation of \xc2\xa7 952(a) entirely on the few\nindications of a \xe2\x80\x9c protectionist\xe2\x80\x9d purpose that we have found in the legislative\n16 The full passage in the course o f which this comment occurs is the following:\nThe existing law in section 1 of the narcotic drugs import and export act [of 1909, as amended by the\nHarrison Act of 1914]. . . prohibits the importation of smoking opium, but permits the importation\nfor medical purposes of other opium products\n. . The United States manufactures more than a\nsufficient amount o f narcotic drugs for domestic medical and scientific uses. The committee\ntherefore believes it desirable to restrict our importation to raw opium and coca leaves, and to admit\nthese only in amounts found by the Secretary of State, the Secretary of the Treasury, and the\nSecretary of Commerce to be sufficient lo provide our manufacturers with enough of the raw\nproducts for the domestic and scientific uses of this country, and for foreign exportation as required\nby the opium convention for medical and scientific uses of legitimate foreign consumers. This\nrestriction will also aid in enforcing our export restrictions. . . . It will also aid in preventing\nevasions of the Harrison Act, by means of the unlawful importation into this country of narcotic\ndrugs previously imported by us and sent into the export trade, and will close the legitimate domestic\nmarket to foreign manufacturers. By proper action in authorizing the importation of the raw\nproducts, it is believed that the three Secretaries can curb any tendency to increase the pnce of the\nmanufactured narcotic drugs which might otherwise result from the prohibition of their importation,\nand by such action also take account of increased domestic consumption beyond the ordinary needs\nfor medical and scientific uses, due either to diversion of drugs into illegitimate domestic channels\n.. or to epidemic or war conditions. (Emphasis added.)\nH.R Rep. No. 852, 67th Cong., 2d Sess. 7-8 (1922).\n\n583\n\n\x0chistory. However, we must acknowledge that, however ambiguous they may\nappear to be, such indications do exist, and they directly support the notion that\n\xc2\xa7 952(a) should be interpreted to apply to the United States, as well as to private\nparties.17\nIn sum, in view of the longstanding and consistent agency interpretation of\n\xc2\xa7 952(a) and its predecessor as applying to importations of controlled substances\nby private parties and federal agencies, in view of suggestions in the legislative\nhistory that Congress intended a broad construction of \xc2\xa7 952(a) in order to fulfill\nits purposes, and in view of the absence of any indication in the legislative history\nto the contrary, we conclude that \xc2\xa7 952(a) should be understood to apply to\nimportations by the United States. It thus applies to the proposed importation of\nmorphine sulfate from Turkey that is presently the subject of negotiations involv\xc2\xad\ning the General Services Administration.\nT\n\nheodore\n\nB. O lson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n17 An argument can be made that Congress did not intend to cover the United States in \xc2\xa7 952(a), for it provided for\na means of enforcing \xc2\xa7 952(a), namely, by possible criminal penalty, see 21 U .S C \xc2\xa7 960. that is not appropriately\napplied against the United States. The problem with this argument is that it ignores that the criminal enforcement\nprovisions are not exclusive 21 U .S C \xc2\xa7 964 states that any penalty imposed for violation of the import and export\nrestrictions \' \xe2\x80\x98shall be in addition to, and not in lieu of. any civil or administrative penalty or sanction authonzed by\nlaw.*\xe2\x80\x99 It is not inconceivable that an aggrieved private party may be able to achieve judicial review of an importation\nof a controlled substance by the United States, and seek in a judicial proceeding a civil remedy predicated on an\nalleged violation of \xc2\xa7 952(a). Accordingly, we cannot give definitive weight to the existence of criminal enforcement\nprovisions in the statute To us, the central question is what Congress\xe2\x80\x99 intent in imposing the importation restriction\nitself appears to have been That question is best resolved by referring to \xc2\xa7 952(a) s own legislative history and. in\nthis case, the longstanding agency construction of the provision.\n\n584\n\n\x0c'