b'Application of Privacy Act Congressional-Disclosure\nException to Disclosures to Ranking Minority Members\nThe congressional-disclosure exception to the disclosure prohibition of the Privacy Act generally does\nnot apply to disclosures to committee ranking minority members.\n\nDecember 5, 2001\n\nLETTER OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF THE TREASURY\nThis letter responds to your request of November 13, 2001, for the opinion of\nthis Office concerning whether information protected by the Privacy Act of 1974\n(\xe2\x80\x9cPrivacy Act\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d), 5 U.S.C. \xc2\xa7 552a (2000), may be disclosed to the ranking\nminority member of the Senate Finance Committee, pursuant to the Act\xe2\x80\x99s congressional-disclosure exception, id. \xc2\xa7 552a(b)(9). We understand that the ranking\nminority member, not the Finance Committee, requested this information.\nThe Privacy Act prohibits the disclosure of information subject to the protections of the Act without the consent of the individual to whom the information\nrelates, unless one of the enumerated exceptions of the Act applies. Id. \xc2\xa7 552a(b).\nOne of those exceptions authorizes disclosure \xe2\x80\x9cto either House of Congress, or, to\nthe extent of matter within its jurisdiction, any committee or subcommittee\nthereof, any joint committee of Congress or subcommittee of any such joint\ncommittee.\xe2\x80\x9d Id. \xc2\xa7 552a(b)(9).\nWe conclude that the Privacy Act prohibits the disclosure of the Privacy Actprotected information to the ranking minority member. Except where the Senate or\nHouse exercises its investigative and oversight authority directly, as is the case\nwith a resolution of inquiry adopted by the Senate or House, each House of\nCongress exercises its investigative and oversight authority through delegations of\nauthority to its committees, which act either through requests by the committee\nchairman, speaking on behalf of the committee, or through some other action by\nthe committee itself. As a general matter, ranking minority members are not\nauthorized to make committee requests, act as the official recipient of information\nfor a committee, or otherwise act on behalf of a committee. We understand that the\nranking minority member has not received such an authorization from the Finance\nCommittee.\nThus, the essential analysis underlying our conclusion is that although the\ncongressional-disclosure exception to the Privacy Act disclosure prohibition is\navailable for disclosures to either House of Congress or to a committee of\nCongress, ranking minority members generally do not act on behalf of congressional committees. Accordingly, absent the unusual circumstance of a specific\ndelegation to a ranking minority member from the Senate or House or a committee, a disclosure of Privacy Act information solely to a ranking minority member\n\n289\n\n227-329 VOL_25_PROOF.pdf 299\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nis not a disclosure to the committee, and the congressional-disclosure exception is\ntherefore unavailable. Of course, disclosure of the information to the ranking\nminority member would be authorized by the exception if the committee itself or\nits chairman authorizes the disclosure.\nYou also asked whether our conclusion would be any different if the information is delivered to the ranking minority member through the clerk of the\ncommittee rather than directly to the member. Our conclusion does not change in\nthat circumstance because all that is different is the method of delivery. The\ndisclosure still cannot be viewed as being made to the committee unless the\ndisclosure has been authorized by the committee or its chairman.\nOur conclusion that the Privacy Act\xe2\x80\x99s congressional-disclosure exception does\nnot generally apply to disclosures to ranking minority members follows the\nlongstanding Executive Branch practice on this question. Moreover, we note that\nthe Congressional Research Service takes the same view as we do concerning the\nlack of authority of ranking minority members, as a general matter, to act on\nbehalf of congressional committees:\nThe role of members of the minority party in the investigatory oversight process is governed by the rules of each House and its committees. . . . [N]o House or committee rules authorize ranking minority\nmembers or individual members on their own to institute official\ncommittee investigations, hold hearings or to issue subpoenas. Individual members may seek the voluntary cooperation of agency officials or private persons. But no judicial precedent has recognized a\nright in an individual member, other than the chair of a committee, to\nexercise the authority of a committee in the context of oversight\nwithout the permission of a majority of the committee or its chair.\nMorton Rosenberg, Cong. Research Serv., Rpt. 95-464A, Investigative Oversight:\nAn Introduction to the Law, Practice and Procedure of Congressional Inquiry 56\n(Apr. 7, 1995) (footnote omitted).\nJAY S. BYBEE\nAssistant Attorney General\nOffice of Legal Counsel\n\n290\n\n227-329 VOL_25_PROOF.pdf 300\n\n10/22/12 11:10 AM\n\n\x0c'


b'Diverting Oil Imports to United States Allies\nThe International Em ergency Econom ic Powers Act would authorize the President, in\norder to deal with an Iranian cutoff of oil to United States allies, to require American\noil companies and foreign entities they control to ship oil they acquire abroad to\ncertain specified nations and in certain specified quantities. W hile there must be a\n"foreign interest\xe2\x80\x9d in the oil for the President to invoke lE E P A \xe2\x80\x99s powers, foreign\ninterest unassociated with the nation that is creating the em ergency would be sufficient.\nSection 232(b) of the T rade Expansion Act would allow the President to impose a quota\non oil imports for national security reasons, including reasons relating to foreign policy\nconsiderations; however, it would not give him power to direct the diversion o f oil\nimports to other countries.\n\nJanuary 12, 1981\nMEMORANDUM OPINION FOR\nTHE ASSOCIATE ATTORNEY GENERAL\nIran may end or reduce exports of its oil to some of our allies who\nare heavily dependent on Iranian oil. You have asked us whether the\nPresident has authority to divert to those allies shipments of foreign oil\nthat would otherwise be imported into the United States. We believe\nthe President has this authority over at least some such shipments.\nThere are several possible sources of authority; the International Emer\xc2\xad\ngency Economic Powers Act (IEEPA), 50 U.S.C. \xc2\xa7\xc2\xa7 1701-1706 (Supp. I\n1977), seems the clearest and most appropriate.\nI. The International Emergency Economic Powers Act\n\nWe believe that the IEEPA empowers the President, in dealing with\na declared national emergency, to require American oil companies and\nentities they control to sell any oil they acquire or can acquire\nabroad\xe2\x80\x94except perhaps oil the company itself already owns, free of all\nforeign rights\xe2\x80\x94and to sell it only to nations specified by the President\nand in quantities the President specifies. If the President enters such an\norder to deal with the Iranian hostage crisis, or the emergency declared\nin connection with the Soviet invasion of Afghanistan, he need not\ndeclare another national emergency. If the need to divert oil shipments\narises from a separate emergency, that emergency should be declared. 1\n\'W e w ould alert you lo Congress* injunction that \xe2\x80\x9cemergencies are by their nature rare and brief,\nand are not to be equated w ith normal, ongoing problems. A national em ergency should be declared\nC o n tin u e d\n\n295\n\n\x0cSection 203(a)(1)(B) of the IEEPA, 50 U.S.C. \xc2\xa7 1702(a)(1)(B), author\xc2\xad\nizes the President, in dealing with a national emergency, to:\ninvestigate, regulate, direct and compel, nullify, void, pre\xc2\xad\nvent or prohibit, any acquisition, holding, withholding,\nuse, transfer, withdrawal, transportation, importation or\nexportation of, or dealing in, or exercising any right,\npower, or privilege with respect to, or transactions in\xc2\xad\nvolving, any property in which any foreign country or a\nnational thereof has any interest;\nby any person, or with respect to any property, subject to the\njurisdiction of the United States.\nOn its face this provision appears to give the President power to\nrequire American companies, and foreign entities they control,2 to\nship oil they acquire abroad to certain other nations and in certain\nquantities.\nThe principal difficulty with the President\xe2\x80\x99s using this power is that it\nis unclear whether all oil acquired abroad by American companies is\n\xe2\x80\x9cproperty in which [a] foreign country or a national thereof has any\ninterest.\xe2\x80\x9d Some oil is owned by a foreign nation or foreign national but\ncan be acquired by an American company; this is plainly property in\nwhich there is a foreign interest, at least until after the time it is\nacquired. Since \xe2\x80\x9cany\xe2\x80\x9d interest will suffice, we believe that oil in which\na foreign nation or national has a contract right\xe2\x80\x94for example, a right\nto refuse to allow the oil to be shipped unless a certain royalty is paid\xe2\x80\x94\nis also subject to the President\xe2\x80\x99s power.\nBecause the United States is not now importing oil from Iran, the\nforeign interest will not be that of Iran, and will probably not be that of\nan Iranian national; it may be argued that \xc2\xa7 203(a)(1)(B) does not reach\nproperty in which the only foreign interest is unassociated with the\nnation that is the cause of the emergency. We do not believe this\nargument is correct, however. Section 203(a)(1)(B) refers to \xe2\x80\x9cany for\xc2\xad\neign country or a national thereof\xe2\x80\x9d (emphasis added), and the legisla\xc2\xad\ntive history of the IEEPA suggests that the principal reason for the\nforeign interest limitation was to prevent the President from regulating\n\xe2\x80\x9cdomestic\xe2\x80\x9d transactions, see, e.g., H.R. Rep. No. 459, 95th Cong., 1st\nand em ergency authorities em ployed only w ith respect to a specific set o f circum stances which\nconstitute a real em ergency, and for no other purpose. T he em ergency should be term inated in a\ntimely m anner w hen the factual state o f em ergency is over and not continued in effect for use in other\ncircum stances. A state o f national em ergency should not be a norm al state o f affairs.\xe2\x80\x9d H.R. Rep. No.\n459, 95th Cong., 1st Sess. 10 (1977).\n2 A m erican corporations are clearly subject to the jurisdiction o f the United States. See Restate\xc2\xad\nment (Second) of Foreign Relations Law o f the United States, \xc2\xa7\xc2\xa727, 30 (1965). Foreign entities they\ncontrol may also be, although they may be subject to the com peting jurisdiction of the foreign\ncountry. In addition, \xc2\xa7 203(a)(1)(B) perm its the President to \xe2\x80\x9c regulate, [or] direct and com pel, . . .\n[the] exercising [of] any right, pow er, or privilege w ith respect to . . . any [foreign] property.\xe2\x80\x9d We\nbelieve this authorizes the President to require an A m erican com pany to exercise its control over\nforeign entities in the w ay the President directs, at least w hen the direction furthers the purposes of\nother regulations imposed under the IE E P A .\n\n296\n\n\x0cSess. 11 (1977), not to limit the foreign nations whose interests might be\naffected. Moreover, Congress probably expected the IEEPA to be used\nfor emergencies\xe2\x80\x94international monetary disorders, for example\xe2\x80\x94that\ndo not originate in any single country. Similarly, a diversion of oil\nimports might be an effort to coordinate our international trade in a\nway that serves the economic and political objectives the President is\npursuing in dealing with a declared emergency. If it were, we believe\nthat it would be the sort of action Congress expected the President to\ntake under the IEEPA.\nSome oil located abroad may be entirely owned by an American\ncorporation and not subject to any foreign nation\xe2\x80\x99s or national\xe2\x80\x99s prop\xc2\xad\nerty or contract rights.3 It is much more difficult to conclude that there\nis a foreign interest in this oil. It seems unlikely, although perhaps\narguable, that a nation\xe2\x80\x99s ability to tax a quantity of oil, seize it or\nprevent its shipment by asserting eminent domain, and otherwise exert\njurisdiction over it, constitute an \xe2\x80\x9cinterest\xe2\x80\x9d in the oil. Some courts have\nsuggested that a foreign nation has an \xe2\x80\x9cinterest\xe2\x80\x9d\xe2\x80\x94within the meaning\nof \xc2\xa7 5(b) of the Trading with the Enemy Act, the predecessor of the\nIEEPA\xe2\x80\x94in any item it exports. Those courts reasoned that by selling\nits products abroad a nation helps \xe2\x80\x9cto sustain its internal economy and\nprovide it with foreign exchange.\xe2\x80\x9d See United States v. Broverman, 180\nF. Supp. 631, 636 (S.D.N.Y. 1959); Heaton v. United States, 353 F.2d\n288, 291-92 (9th Cir. 1965). But we have substantial doubt that this is a\nsufficiently direct interest to permit regulation under \xc2\xa7 203(a)(1)(B) of\nthe IEEPA, at least if the object of the regulation is not to disrupt a\nnation\xe2\x80\x99s internal economy or deprive it of foreign exchange.4\n3 W e express no opinion on the extent to w hich American corporations\' acquisitions o f oil from\nforeign nations may be regulated retroactively under the IEE PA .\n4W e have these doubts for several reasons. First, the language of \xc2\xa7 203(a)(1)(B) suggests that the\nterm \xe2\x80\x9cinterest\xe2\x80\x9d should not be interpreted in a way that has no connection to its usual legal meaning.\nSection 203(a)(1)(B) refers to property in w hich a \xe2\x80\x9cforeign country or a national thereof has any\ninterest\xe2\x80\x9d (emphasis added); this may suggest that the drafters intended to reach only those kinds of\ninterests of foreign nations which could also be held by individuals. M oreover, in describing the\nPresident\xe2\x80\x99s powers, \xc2\xa7 203(a)(1)(B) uses highly inclusive language\xe2\x80\x94\xe2\x80\x9cinvestigate, regulate, direct and\ncompel, nullify, void, prevent or prohibit, any acquisition, holding, w ithholding, use, transfer [etc.]\xe2\x80\x9d \xe2\x80\x94\nthat was evidently intended to cover a wide variety of possible actions. Section 203(a)(1)(B) does not\nuse com parably inclusive language in describing the range o f foreign interests covered. This may\nsuggest that the drafters o f the IEE PA did not intend the term \'\xe2\x80\x98interest\xe2\x80\x9d to be extraordinarily\ninclusive. In ordinary legal usage, a nation would not have an \xe2\x80\x9c interest\xe2\x80\x9d in a piece of property unless\nit owned it or had an indirect, partial, contingent, or future interest in it, or a contract right to it; one\nwould not ordinarily say that a nation had an \xe2\x80\x9cinterest\xe2\x80\x9d in all the property located w ithin its borders.\nSecond, Congress clearly intended that the President not use the IE E P A to regulate \xe2\x80\x9cw holly\ndom estic\xe2\x80\x9d transactions. See, e.g., H.R. Rep. No. 459, 95th C ong., 1st Sess. 11 (1977). W e recognize that\n\xc2\xa7 203(a)(1)(B), enacted as part of the IE E P A in 1977, contains the same language as \xc2\xa7 5(b) of the\nTrading with the Enem y A ct; the cases cited in the text interpreted this language. C ongress presum \xc2\xad\nably knew o f these cases when it enacted \xc2\xa7 203(a)(1)(B) in this form. But if w e w ere to adopt the\nbroadest possible interpretation of these cases\xe2\x80\x94that a nation has an \xe2\x80\x9cinterest\xe2\x80\x9d in property, within the\nmeaning of \xc2\xa7 203(a)(1)(B), w henever transactions in that property can have an im portant effect on its\neconom y \xe2\x80\x94we would, allow the President to regulate w holly domestic transactions, in violation of\nC ongress\xe2\x80\x99 clear intentions; foreign countries\' econom ies may be substantially affected by w holly\ndom estic American transactions. We see no other principled interpretation o f the term \xe2\x80\x9cforeign . . .\ninterest\xe2\x80\x9d in \xc2\xa7 203(a)(1)(B) that would allow the President to regulate transactions in oil that is located\nC o n tin u e d\n\n297\n\n\x0cThe President may be able to reach transactions in American-owned\noil located abroad under a different provision of the IEEPA,\n\xc2\xa7 203(a)(l)(A)(i), 50 U.S.C. \xc2\xa7 1702(a)(l)(A)(i). That provision authorizes\nthe President, in dealing with a national emergency, to \xe2\x80\x9cinvestigate,\nregulate, or prohibit . . . any transactions in foreign exchange . . . by\nany person, or with respect to any property, subject to the jurisdiction\nof the United States.\xe2\x80\x9d An American company which owned oil located\nabroad would presumably have to deal in foreign exchange in order to\nsell the oil; the foreign exchange transactions associated with such sales\nmight be regulated in a way that compelled the company to comply\nwith the President\xe2\x80\x99s directions. While this provision of the IEEPA on\nits face seems to permit such regulation, some substantial objections can\nbe raised. Arguably, Congress envisioned that the \xc2\xa7 203(a)(l)(A)(i) au\xc2\xad\nthority to regulate transactions in foreign exchange would be invoked\nonly where the President\xe2\x80\x99s concern was with the use of foreign ex\xc2\xad\nchange in the transaction. Congress probably did not intend the Presi\xc2\xad\ndent to take advantage of the fact that foreign exchange was involved\nsolely as a means of reaching transactions that he otherwise could not\nregulate. In other words, in enacting \xc2\xa7 203(a)(1)(B) Congress may have\nintended to limit the President\xe2\x80\x99s power over transactions in property to\nproperty in which there was a foreign interest; if so, Congress would\nnot have intended the President to use his authority over transactions in\nforeign exchange to circumvent that limitation. For these reasons, we\nhave substantial doubt about the President\xe2\x80\x99s authority under the IEEPA\nto regulate transactions in oil that is located abroad but entirely owned\nby American companies. To the extent that the reasons for regulating\nsuch transactions are related to the fact that the transactions involve\nforeign exchange, the argument that \xc2\xa7 203(a)(l)(A)(i) grants the Presi\xc2\xad\ndent authority to regulate them is enhanced. On the facts as known to\nus, however, it is difficult to discern such a relationship.\nFinally, it can be argued that while \xc2\xa7 203(a)(1)(B) authorizes the\nPresident to \xe2\x80\x9cdirect and compel . . . [the] acquisition\xe2\x80\x9d of oil in which\nthere is a foreign interest, the foreign interest disappears as soon as an\nAmerican company acquires the oil, and the President loses his power\nto direct the oil to a destination or otherwise to control its sale. For\nseveral reasons, we believe this argument is incorrect. As far as the text\nof the Act is concerned, the President has the power to \xe2\x80\x9cregulate\xe2\x80\x9d the\nacquisition of the oil; this suggests that he may order that it not be\nacquired unless it will be shipped to the destination he has designated.\nIn addition, the President may \xe2\x80\x9cregulate [or] direct and compel . . .\nany . . . use, transfer, . . . transportation . . . dealing in . . . or trans\xc2\xad\nactions involving\xe2\x80\x9d property in which there is a foreign interest. By\nwithin a foreign nation but w holly ow ned by an A m erican corporation, at least when the purpose of\nthe regulation is not to disrupt the foreign nation\xe2\x80\x99s econom y. See a/so Permian Basin Area Rate Cases,\n390 U.S. 747, 777, 780 (1968).\n\n298\n\n\x0crequiring oil to be shipped from one foreign country to another, the\nPresident appears to be simply regulating or directing a transfer, trans\xc2\xad\nportation, or dealing in the oil. Moreover, the President may \xe2\x80\x9cregulate,\ndirect and compel, nullify, void, prevent or prohibit, any . . . dealing\nin, or exercising any right, power, or privilege with respect to\xe2\x80\x9d oil in\nwhich there is a foreign interest. We believe the President may, under\nthis authority, order American companies to obligate any oil they can\nobtain from a foreign nation or national to other countries. These are\nriot merely strained textual arguments designed to give the President\ncontrol over essentially domestic transactions. The fact that the oil\ninvolved has a foreign origin may be significant, not adventitious. For\nexample, the President may determine that precisely because the United\nStates is a leading consumer of oil from other nations, it must make a\nspecial effort to aid its allies.\nII. Section 232(b) of the Trade Expansion Act\n\nSection 232(b) of the Trade Expansion Act, 19 U.S.C. \xc2\xa7 1862(b),\nappears to permit the President to respond to an Iranian oil cutoff by\nimposing a quota on oil imports into the United States. The effect of\nsuch a quota would depend on market conditions, but it would prob\xc2\xad\nably free additional supplies for our allies to purchase. The legal objec\xc2\xad\ntions to this approach can be answered; the practical problems may be\nmore serious.\nSection 232(b) authorizes the President to \xe2\x80\x9ctake such action, and for\nsuch time, as he deems necessary to adjust the imports of [an] article\nand its derivatives so that such imports will not threaten to impair the\nnational security.\xe2\x80\x9d The President can make such an adjustment if the\nSecretary of Commerce\xe2\x80\x94formerly the Secretary of the Treasury, see\nReorganization Plan No. 3 of 1979, \xc2\xa7 5(a)(1)(B), 93 Stat. 1381\xe2\x80\x94con\xc2\xad\nducts an investigation and finds that an article \xe2\x80\x9cis being imported into\nthe United States in such quantities or under such circumstances as to\nthreaten to impair the national security.\xe2\x80\x9d In March 1979, the Secretary\nof the Treasury completed such an investigation and concluded that\nimports of crude oil and oil products into the United States threatened\nto impair the national security.5 See 44 Fed. Reg. 18,818 (1979). It is\n5 While this finding did not, of course, anticipate the Iranian oil cutoff w ith w hich w e are now\nconcerned, it did emphasize the risks of depending on oil from countries w ith w hich the United States\nm ight have \xe2\x80\x9cpolitical disagreement[s]" and the unreliability o f oil supplies from those nations. It even\nmentioned the Iranian revolutionary regim e\xe2\x80\x99s reductions in oil shipments as an example. See 44 Fed.\nReg. 18,818, 18,820 (1979). M oreover, in 1975 the A ttorney G eneral issued an opinion that a finding\nmade in 1959 continued to authorize im port adjustm ents by the President. He said that no new finding\nwas necessary in 1975, even though there had been a "drastic change from the factual situation w hich\nprovided the basis of the 1959 finding," and even though, shortly before he issued his opinion, the\nauthority to make such a finding had been transferred from the D irector o f the Office o f Em ergency\nPlanning to the Secretary of the Treasury, see Pub. L. No. 93-618, \xc2\xa7 127(d), 88 Stat. 1993 (1975). 43\nOp. A tt\xe2\x80\x99y Gen. No. 3 at p. 2 (1975). T he A ttorney G eneral reasoned that the President\xe2\x80\x99s \xc2\xa7 232(b)\npow er to take \xe2\x80\x9csuch action . . . as he deems necessary\xe2\x80\x99\xe2\x80\x99 to adjust im ports is authority to take not just\nC o n iin u e d\n\n299\n\n\x0cclear that the President\xe2\x80\x99s power to \xe2\x80\x9cadjust\xe2\x80\x9d imports includes the power\nto impose an import quota. See Federal Energy Administration v.\nAlgonquin SNG, Inc., 426 U.S. 548, 561, 571 (1975).\nWe understand, however, that the President wishes to divert oil\nprimarily to deal with the foreign policy consequences of an Iranian\ncutoff. It might be argued that it is inconsistent with Congress\xe2\x80\x99 inten\xc2\xad\ntions to use \xc2\xa7 232(b) to deal with the foreign policy implications of\nimports. The language of the statute and its legislative history suggest\nthat Congress expected \xc2\xa7 232(b) to be used primarily to protect domes\xc2\xad\ntic industries or, more generally, to deal with the domestic conse\xc2\xad\nquences of imports. See, e.g., \xc2\xa7 232(c), 19 U.S.C. \xc2\xa7 1862(c). It may be,\nhowever, that an Iranian oil cutoff would threaten instability in Ameri\xc2\xad\ncan domestic markets as well as in world markets, and that a reasonable\nmethod of preventing this instability would be to limit imports; in this\nway the cutoff might be justified as a measure to aid the domestic\neconomy. We do not know whether the facts support this view. More\nfundamentally, however, while Congress clearly focused on the domes\xc2\xad\ntic effects of imports, it did not explicitly limit the President to consid\xc2\xad\nering only domestic effects. Instead, it used the term \xe2\x80\x9cnational secu\xc2\xad\nrity,\xe2\x80\x9d which ordinarily comprises matters of foreign policy. Congress\ndid not attempt affirmatively to exclude this aspect of the normal\nmeaning of \xe2\x80\x9cnational security.\xe2\x80\x9d Since Congress used the term \xe2\x80\x9cnational\nsecurity,\xe2\x80\x9d we believe that the President has the authority to consider all\nthe aspects of national security\xe2\x80\x94including foreign policy\xe2\x80\x94when he\nadjusts imports under \xc2\xa7 232(b).\nThe practical problems may be more difficult to solve. Section 232(b)\nallows the President to \xe2\x80\x9cadjust . . . imports.\xe2\x80\x9d It is difficult to construe\nthis as authority to order the holders of oil to do a particular thing with\nthe oil they cannot import. Consequently, \xc2\xa7 232(b) does not give the\nPresident direct control over the oil diverted from the United States; it\nis subject to the vagaries of the market. This may be an inefficient, or\neven ineffective, way of supplying the needs of our allies.\na single measure but continuing course of action, \xe2\x80\x9ca continuing process of m onitoring and modifying\nthe im port restrictions, as their limitations becom e apparent and their effects changed.\xe2\x80\x9d Id. Courts\nenforced restrictions w hich the President imposed as late as 1968, even though the restrictions w ere\nbased on the 1959 findings; the courts did not seem to doubt that those findings adequately supported\nthe President\xe2\x80\x99s action. See, e.g., G ulf Oil Corp. v. Hickel, 435 F.2d 440 (D.C. Cir. 1970).\nT he A ttorney G eneral\xe2\x80\x99s opinion did not com m ent on the transfer of the function. It seems\nreasonable to conclude, how ever, that if the findings can survive the passage o f 16 years and a \xe2\x80\x98\xe2\x80\x98drastic\nchange" in circum stances, they can also survive a transfer of functions within an administration.\nIndeed, earlier this year the President imposed a G asoline Conservation Fee, see Pres. Proc. No. 4744,\n45 Fed. Reg. 22,864 (1980), rescinded by Pres. Proc. No. 4766, 45 Fed. Reg. 41,899 (1980), partly on\nthe authority of \xc2\xa7 232(b) and the M arch, 1979, findings o f the Secretary o f the Treasury. F or these\nreasons, w e believe that the M arch, 1979, findings will support an im port quota imposed by the\nPresident to deal w ith an Iranian oil cutoff. O f course, if circum stances and the applicable regulations,\nsee \xc2\xa7 232(d), 19 U.S.C. \xc2\xa7 1862(d), perm it, it may be m ore prudent to have the Secretary o f Com m erce\nmake a new investigation and enter the finding appropriate to an im port quota designed to respond to\nan Iranian oil cutoff.\n\n300\n\n\x0cIII. The International Energy Program\nThe Agreement on an International Energy Program, 27 U.S.T. 1685,\nNov. 18, 1974, T.I.A.S. No. 8278, is designed to share the effects of oil\nshortages among the nations participating in the agreement. The United\nStates and the allies who would be most affected by an Iranian oil\ncutoff are participants. Certain of the participants\xe2\x80\x99 obligations take\neffect if the total imports of all the participating nations fall more than\n7 percent from the previous year, or if any one nation\xe2\x80\x99s available oil\nsupplies fall more than 7 percent. Specifically, each participant is then\nobligated to reduce its demand for oil by 7 percent from the previous\nyear and share its savings among the other participants. Under \xc2\xa7 251(a)\nof the Energy Policy and Conservation Act, the President has the\npower to issue regulations \xe2\x80\x9crequiring] that persons engaged in produc\xc2\xad\ning, transporting, refining, distributing, or storing petroleum products,\ntake such action as he determines to be necessary for implementation of\nthe obligations of the United States under . . . the international energy\nprogram insofar as such obligations relate to the international allocation\nof petroleum products.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 6271(a). We are advised that such\nregulations already exist. See 10 C.F.R. \xc2\xa7 218.1-218.43.\nWe understand, however, that the United States has already reduced\nits consumption of oil by more than 7 percent from last year. If this is\ntrue, then even if other nations\xe2\x80\x99 oil supplies fell sharply, the United\nStates would apparently have no further obligations under the Pro\xc2\xad\ngram, and \xc2\xa7 251(a) would not grant the President authority to order\nredistributions of. oil.6 For this reason, the International Energy Pro\xc2\xad\ngram seems an unlikely source of authority for dealing with an Iranian\noil cutoff.\nJ o h n M. H a r m o n\nAssistant Attorney General\nOffice of Legal Counsel\n\n6 A rticle 22 of the Agreem ent provides that:\nT he G overning Board may at any time decide by unanimity to activate any appropri\xc2\xad\nate em ergency measures not provided for in this A greem ent, if the situation so\nrequires.\nT he G overning Board is com posed of members from each participating country. A rticle 50, \xc2\xa7 1.\nM easures adopted by the Board in this way may impose on the United States additional \xe2\x80\x9cobligations\'*\nw ithin the meaning of \xc2\xa7 251(a) o f the Energy Policy and C onservation A ct, although it might be\nargued that since the United States can veto such a measure, it cannot be said to impose an obligation.\n\n301\n\n\x0c'


b"Adjusting the Census for Recent Immigrants:\nThe Chiles Amendment\nT h e C h iles A m en d m en t a u th o riz e s th e P re sid en t to o rd e r a special cen su s p u rsu an t to 13\nU .S .C . \xc2\xa7 196, o r to use som e o th e r m e th o d o f o b tain in g a revised estim ate o f the\np o p u latio n , w h e n e v e r h e d ete rm in e s th at th e p o p u latio n o f a p a rtic u la r are a is signifi\xc2\xad\nc a n tly affected by an influx o f im m ig ran ts w ith in six m o n th s o f a re g u la r d ecennial\ncen su s d ate.\nT h e C h iles A m en d m en t w a s in ten d ed sim ply to re m o v e an unfairly a rb itra ry elem ent\nfro m th e census, a n d n ot to se rv e as an in d ire ct m eans o f aiding ju risd ic tio n s affected\nb y la rg e n u m b ers o f re c e n t im m igrants. A c c o rd in g ly , th e e n tire p o p u latio n o f signifi\xc2\xad\nc a n tly affected ju ris d ic tio n s m ust be estim ated , in o r d e r to tak e in to a c c o u n t b o th the\nr e c e n t influx o f im m ig ran ts an d an y o ffse ttin g re c e n t p o p u latio n decline.\n\nDecember 11, 1980\nM EM ORANDUM OPIN IO N FO R T H E ASSISTANT TO TH E\nPR ESID EN T FOR IN TER G O V ER N M EN TA L A FFAIRS\nThis responds to your request for our opinion on certain issues raised\nby the Chiles Amendment, \xc2\xa7 118 of Pub. L. No. 96-369, 94 Stat. 1351,\n1357 (1980). The Chiles Amendment provides:\nNotwithstanding any other provision of law, when the\nPresident determines that a State, county, or local unit of\ngeneral purpose government is significantly affected by a\nmajor population change due to a large number of legal\nimmigrants within six months o f a regular decennial\ncensus date, he may order a special census, pursuant to\nsection 196 of title 'XIII of the United States Code, or\nother method of obtaining a revised estimate of the popu\xc2\xad\nlation of such jurisdiction or subsections of that jurisdic\xc2\xad\ntion in which the immigrants are concentrated. If the\nPresident decides to conduct a special census, it may be\nconducted solely at Federal expense.\nYou have suggested that the Chiles Amendment might be interpreted\nin one of two ways. On one interpretation, the President has only the\nauthority to conduct a special census, either under 13 U.S.C. \xc2\xa7 196 or in\nsome other way. Alternatively, the amendment might be interpreted to\ngive the President authority to order some other method of revising\npopulation figures that is different from a special census. You have\nasked our opinion on which of these possible interpretations is correct.\n816\n\n\x0cWe believe the latter interpretation is correct. The Chiles Amend\xc2\xad\nment permits the President to order either a special census or to obtain\nin some other way \xe2\x80\x9ca revised' estimate of the population\xe2\x80\x9d of certain\njurisdictions. 126 Cong. Rec. 27,551 (1980). We recognize that this\ninterpretation is not necessarily suggested by the amendment\xe2\x80\x99s syntax; it\nwould read the amendment to provide that the President \xe2\x80\x9cmay order\na . . . other method of obtaining a revised estimate of the population.\xe2\x80\x9d\nId. But we nonetheless believe that the amendment authorizes the\nPresident to order that some method other than a special census be\nused.\nThe Chiles Amendment was added by the Senate committee. The\noriginal version contained the first sentence of the provision that\nbecame law, followed by these two sentences:\nAny such special census [or] 1 revised estimate shall be\nconducted at Federal expense. Such special census or\nrevised estimate shall be conducted no later than twelve\nmonths after the regular census date. . . .\n126 Cong. Rec. 27,551 (1980). See also 126 Cong. Rec. 27,746 (1980);\n126 Cong. Rec. 28,503 (1980). This language was deleted for no stated\nreason\xe2\x80\x94the deletion was referred to on the floor of the House as \xe2\x80\x9ca\nslight modification of the Senate language,\xe2\x80\x9d see 126 Cong. Rec. 28,504\n(1980) (remarks of the Speaker)\xe2\x80\x94but it suggests that, despite the\nsyntax, Congress intended the first sentence to give the President a\nchoice between a special census and some \xe2\x80\x9cother method of obtaining a\nrevised estimate of the population.\xe2\x80\x9d Id.\nThe Senate committee\xe2\x80\x99s explanation of its amendment removes any\nremaining doubt. It reads:\nThe Committee adopted a new section . . . to allow the\nPresident to order a special census count or use other\nmeans o f revising census estimates in those special situations\nwhere there is a large flow of legal immigrants\nwithin 6 months of the census enumeration, such as the\nrecent influx of Cubans and Haitians. Where such a revi\xc2\xad\nsion of census estimates occurs, the revised data shall be\nused for all normal purposes, including Federal funding\nformulas.\n126 Cong. Rec. 27,554 (1980) (emphasis added). We believe that the\nChiles Amendment, read in light of this committee explanation, author\xc2\xad\nizes the President to choose some method other than a special census to\nobtain a revised population estimate.\nYour office has expanded upon your initial request by asking our\nviews on what would qualify as an \xe2\x80\x9cother method of obtaining a\n1 T h e w ord \xe2\x80\x9co f \xe2\x80\x99 appears in th e original; this is evidently a misprint for \xe2\x80\x9co r.\xe2\x80\x9d\n\n817\n\n\x0crevised estimate of the population.\xe2\x80\x9d In particular, you want our views\non whether the President can simply order that the number of immi\xc2\xad\ngrants who entered a \xe2\x80\x9csignificantly affected\xe2\x80\x9d jurisdiction within six\nmonths after a decennial census date\xe2\x80\x94in this case, April 1, 1980\xe2\x80\x94be\nadded to the official census population, ascertained as of the most\nrecent estimate or census from which data can be used for that jurisdic\xc2\xad\ntion. The possible objection to this method is that it ignores other\npopulation changes in the affected jurisdiction\xe2\x80\x94for example, some af\xc2\xad\nfected jurisdictions may have lost population if the influx of immigrants\nwas more than offset by a population decline resulting from other\ncauses\xe2\x80\x94and therefore is not an \xe2\x80\x9cestimate of the population.\xe2\x80\x9d\nWe believe that the Chiles Amendment authorizes the President only\nto estimate the entire population of significantly affected jurisdictions. If\nthere is reason to believe that adding the number of recent immigrants\nto the previous census figure will not accurately estimate the population\nof a jurisdiction, then the Chiles Amendment does not authorize such a\nmethod in that jurisdiction.\nWe can discern two purposes that the Chiles Amendment, or a\nmeasure like it, may have been intended to serve. Congress may have\nintended it simply as a means of funneling aid from federal programs\nbased on population data, to jurisdictions with large numbers of recent\nimmigrants. Congress may have felt that jurisdictions with large num\xc2\xad\nbers of new immigrants have special problems and burdens even if their\noverall population has not increased. If this were Congress\xe2\x80\x99 objective, it\nwould be acceptable\xe2\x80\x94perhaps necessary\xe2\x80\x94simply to add the number of\nnew immigrants to the previous population figures, even if this method\nartificially inflated the population figures for certain jurisdictions.\nAlternatively, Congress may have intended the Chiles Amendment to\nbe a means of correcting an arbitrary feature of the census. The census\ndoes not count immigrants who enter a jurisdiction after April 1, 1980,\nalthough it would have counted them if they had entered before that\ndate. Of course, some such arbitrariness is inevitable; but Congress may\nhave believed that if very large numbers of immigrants were involved,\nthe arbitrariness would be unfair and should be corrected. Congress\nmay have believed that a census or estimate taken shortly after the\nimmigrants had arrived would be more fair. If this was Congress\xe2\x80\x99\nintention\xe2\x80\x94to remove an unfairly arbitrary element from the census\nfigures\xe2\x80\x94then the President must attempt accurately to estimate the\ntotal population. He cannot simply add the number of new immigrants\nto the earlier population figures in cases in which he has reason to\nbelieve that such a method will not produce an accurate estimate.\nSince, as we said, some jurisdictions may have large numbers of new\nimmigrants but lose population overall, these two possible congressional\npurposes diverge to some extent; and to that extent, we believe Con\xc2\xad\ngress intended the latter objective. That is, it intended the Chiles\n818\n\n\x0cAmendment to reduce the arbitrariness of the census, not simply to\nserve as a means of aiding jurisdictions affected by large numbers of\nimmigrants. We reach this conclusion for several reasons. First, we\nknow of no instance\xe2\x80\x94and the General Counsel\xe2\x80\x99s Office at the Depart\xc2\xad\nment of Commerce advises us that it knows of none\xe2\x80\x94in which Con\xc2\xad\ngress has tampered with the integrity of census figures in order to\nachieve other policy objectives. In the absence of a clear indication to\nthe contrary, we will not assume that Congress intended to do so here.\nSecond, the language of the Chiles Amendment\xe2\x80\x94\xe2\x80\x9ca revised estimate of\nthe population \xe2\x80\x9d (emphasis added)\xe2\x80\x94suggests that Congress wanted the\nPresident to order a genuine effort to estimate the overall population.\nIndeed, if Congress intended artificially to inflate population figures, it\nis difficult to see why it authorized \xe2\x80\x9ca special census . . . of the\njurisdiction\xe2\x80\x9d\xe2\x80\x94not merely of the new immigrants\xe2\x80\x94as one alternative.2\nFinally, Congress has enacted a carefully designed program providing\naid to localities in dealing with some of the special burdens and prob\xc2\xad\nlems associated with large populations of recent immigrants. See Pub.\nL. No. 96-422, 94 Stat. 1799 (1980) (Refugee Education Assistance Act\nof 1980). Since such a program exists, and is more carefully tailored to\nserve the purposes of aiding affected jurisdictions than the Chiles\nAmendment is, we doubt that Congress intended the Chiles Amend\xc2\xad\nment to serve that purpose instead of the purpose for which it seems\nmore clearly designed.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n2 In the only floor discussion o f any length about the C hiles A m endm ent, R epresentative G arcia did\nsay: \xe2\x80\x9cT h e num ber o f legal aliens counted in this special census [authorized by the Chiles A m endm ent]\nw ould then be added to the official census figures and used for all legal purposes.*' See 126 C ong. Rec.\n28,503 (1980). But R epresentative G arcia had no special qualification to speak authoritatively about (he\nmeaning o f the Chiles A m endm ent; he was not, for exam ple, a sponsor o f the am endm ent. M ore\nim portant, his rem ark on this point was tangential to the principal subject o f his statem ent on the floor,\nw hich was to make the point o f o rd er that a proposed am endm ent to the Chiles A m endm ent was not\ngerm ane. N otably, R epresentative G arcia also said:\nT h e Senate am endm ent is limited to situations such as the unprecedented influx o f\nC uban refugees w ho w ere lawfully adm itted into the co untry after the census got\nunderw ay. Senator C hiles' am endm ent is limited in scope and addresses a unique\nproblem not heretofore encountered in the census.\nId. This rem ark w as m uch more directly related to the principal subject o f R epresentative G arcia's\nstatem ent\xe2\x80\x94he w as characterizing the Chiles A m endm ent in o rd e r to raise the point o f o rd e r\xe2\x80\x94and this\nrem ark reinforces o ur interpretation o f the Chiles A m endm ent.\n\n819\n\n\x0c"


b'Authority of the Special Counsel, Merit Systems Protection\nBoard, Over Anonymous Allegations of Wrongdoing\nAnonymous complaints do not trigger the statutory scheme by which the Office of the\nSpecial Counsel (OSC), Merit Systems Protection Board, investigates allegations of\nwrongdoing within an agency; however, such complaints may be forwarded to the\nhead o f the affected agency by the OSC in its discretion, to be dealt w ith by the\nagency.\n\nJuly 1, 1981\nM EM ORANDUM OPIN IO N FO R T H E SPECIA L COUNSEL,\nM ER IT SYSTEMS PR O TEC TIO N BOARD\nThis responds to your inquiry whether the Office of the Special\nCounsel (OSC), Merit Systems Protection Board, has the statutory\nauthority to forward anonymous allegations of wrongdoing to the\nheads of the affected agencies,1 pursuant to 5 U.S.C. \xc2\xa7 1206(b)(2).2 For\n\xe2\x80\x98This question arose because of our earlier opinion that OSC may only forward complaints\nreceived from federal employees. Memorandum Opinion for the General Counsel, Nuclear Regulatory\nCommission, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel,\nMarch 13, 1981. [ N o t e : The March 13, 1981, Memorandum Opinion appears in this volume at p .77\nsupra Ed.]\n2 Section 1206(bXl) and (2) of Title 5, United States Code, states:\n(1) In any case involving\xe2\x80\x94\n(A) any disclosure of information by an employee or applicant for employment\nwhich the employee or applicant reasonably believes evidences\xe2\x80\x94\n(i) a violation of any law, rule, or regulation; or\n(ii) mismanagement, a gross waste of funds, an abuse o f authonty, o r a substantial\nand specific danger to public health or safety,\nif the disclosure ts not specifically prohibited by law and if the information is not\nspecifically required by Executive order to be kept secret in the interest of national\ndefense or the conduct of foreign affairs, or\n(B) a disclosure by an employee or applicant for employment to the Special\nCounsel o f the Merit Systems Protection Board, or to the Inspector General o f an\nagency or another employee designated by the head of the agency to receive such\ndisclosures o f information which the employee or applicant reasonably believes\nevidences\xe2\x80\x94\n(1) a violation of any law, rule or regulation; or\n(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial\nand specific danger to public health or safety;\nthe identity of the employee or applicant may not be disclosed without the consent\no f the employee or applicant during any investigation under subsection (a) of this\nsection or under paragraph (3) of this subsection, unless the Special Counsel deter\xc2\xad\nmines that the disclosure of the identity of the employee or applicant is necessary in\norder to carry out the functions of the Special Counsel.\n(2) W henever the Special Counsel receives information o f the type described in\nparagraph (1) of this subsection, the Special Counsel shall promptly transmit such\ninformation to the appropriate agency head.\n\n215\n\n\x0creasons stated hereafter, w e do not believe that the statute was intended\nto cover such material and we therefore conclude that the material may\nnot be forw arded as (b)(2) material. Such material may be forwarded to\nafTected agencies, however, without the provision of (b)(2) being trig\xc2\xad\ngered.\nForw arding information pursuant to (b)(2) triggers an elaborate statu\xc2\xad\ntory scheme. OSC may require an agency to conduct an investigation\nand submit a detailed written report within 60 days. 5 U.S.C.\n\xc2\xa7 1206(b)(3)(A), (4), 5 C.F.R. \xc2\xa7 1252.2 (1980). This report must be\nsubmitted to Congress, the President and the Special Counsel, 5 U.S.C.\n\xc2\xa7 1206(b)(5)(A), and possibly the Office of Management and Budget.\nEven if OSC does not require an investigation, the head of the agency\nmust make a written report within 60 days regarding action taken. Id.,\n\xc2\xa7 1206(b)(7), 5 C.F.R. \xc2\xa7 1252.3 (1980). Failure to file reports may be\nreported to Congress and the President. 5 U.S.C. \xc2\xa7 1206(b)(5)(A). This\nscheme was designed to encourage federal workers to \xe2\x80\x9cblow the whis\xc2\xad\ntle\xe2\x80\x9d if they suspect the existence of wrongdoing in their agency. See\n124 Cong. Rec. 27,548, 27,569-72, 34,100, 25,727-28 (1978). It was\nmeant both to protect them from reprisals by setting up stringent\nsafeguards to protect their identity, see 5 U.S.C. \xc2\xa7 1206(b)(8), 5 C.F.R.\n\xc2\xa7 1250.3(c) and App. I (1980), and to assure them that their complaints\nwould be looked into seriously by requiring mandatory reports from\nthe agencies. Permitting individuals who are unwilling to give their\nnames, even with these statutory protections, to trigger these provisions\nwould not only consume the finite resources of OSC and the agencies\nbut would also turn the law into w hat its sponsors explicitly said it was\nnot\xe2\x80\x94\xe2\x80\x9c an open invitation to any disgruntled Federal employee . . . to\nmake false allegations o f wrongdoings by a Federal agency.\xe2\x80\x9d 124 Cong.\nRec. 27,572 (1978) (remarks of Sen. Dole).\nW e believe that the statute requires the identification o f the com\xc2\xad\nplainant in order to effect several purposes. First, identification ensures\nthat the complainant is \xe2\x80\x9c an employee or applicant for employment\xe2\x80\x9d as\nrequired by the statute. 5 U.S.C. \xc2\xa7 1206(b)(1)(A), (B). See also 5 U.S.C.\n\xc2\xa7 1206(b)(3)(B). Second, it allows the Special Counsel to solicit addi\xc2\xad\ntional information, if necessary, from the complainant when determin\xc2\xad\ning w hether there is a \xe2\x80\x9csubstantial likelihood\xe2\x80\x9d that the information\ndiscloses a violation o f the law and thus to eliminate the drain of\ninvestigating fraudulent or frivolous claims. Third, it permits the Spe\xc2\xad\ncial Counsel to comply with the mandate of the statute that he \xe2\x80\x9csh a ir\ninform the complainant of the agency\xe2\x80\x99s report on its investigation or\naction. 5 U.S.C. \xc2\xa7 1206(b)(5)(A), (7) (emphasis added).\nThis is not to say that OSC must ignore anonymous complaints.\nNothing in the statute forbids OSC from forwarding such complaints to\nan agency\xe2\x80\x94the statute only precludes them being sent as official (b)(2)\n216\n\n\x0cmaterial.3 Therefore, while anonymous information should not be for\xc2\xad\nwarded pursuant to 5 U.S.C. \xc2\xa7 1206(b)(2), and reports on it should not\nbe required pursuant to 5 U.S.C. \xc2\xa7 1206(b)(3) and (7), the information\nmay be forwarded at OSC\xe2\x80\x99s discretion\xe2\x80\x94and dealt with at the agency\xe2\x80\x99s\ndiscretion\xe2\x80\x94in order to identify possible problems.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n3 In addition, OSC is empowered to investigate possible prohibited personnel practices, even in the\nabsence of an allegation, 5 U.S.C. \xc2\xa7 1206(a)(3), and several other classes of improper conduct, 5 U S.C.\n\xc2\xa7 1206(e), 5 C F.R \xc2\xa7 1251 1(b), (c), regardless of the source.\n\n\x0c'