b'July 20, 1977\n\n77-43\n\nMEMORANDUM OPINION FOR ASSISTANT\nGENERAL COUNSEL OF THE GENERAL\nACCOUNTING OFFICE\nCompensation of Court-Appointed Witnesses*\n\nThis is in response to your request for our opinion on the proper\nagency to make payment for the compensation of court-appointed\nexpert witnesses in cases handled by the Department of Justice. We\nconclude that where a court appoints an expert witness pursuant to\nRule 706 of the Federal Rules of Evidence,1 as a matter of law either\nthe Administrative Office of the United States Courts or the litigating\nagency is required .to compensate such witnesses as set forth in subsec\xc2\xad\ntion (b) of Rule 706. It is our opinion that in criminal cases it is the\nAdministrative Office, and in condemnation and \xe2\x80\x9cother civil cases\xe2\x80\x9d it is\nthe agency initiating and litigating the action.2\nIn our view, Rule 706(b) establishes two categories of cases for\ndetermining how court-appointed expert witnesses are compensated. In\nthe first category are those expert witnesses appointed in criminal and\ncondemnation cases, as to which the expert witness is to be compensat\xc2\xad\ned entirely by the United States. Within this category are tw o means\nfor paying court-appointed expert witnesses\xe2\x80\x99 fees. In criminal cases the\nexpert witness is to be compensated by the Administrative Office from\nfunds appropriated for expenses of maintenance of the courts, and in\ncondemnation cases by the agency handling the action from its general\n*See the subsequent related decision o f the C om ptroller G eneral, B - 139703 (February\n6, 1979).\n1 It should be noted that a trial judge has the inherent pow er to appoint his ow n expert.\nSee, e.g., Scott v. Sprange Bros. Inc., 298 F. 2d 928 (2d Cir. 1962). Such an expert may not\nqualify as an expert witness under the specific requirem ents o f R ule 706 o f the Federal\nRules o f E vidence. In this situation it is our opinion that the c o u rt\xe2\x80\x99s expert is to be\ncom pensated by the A dm inistrative OfTice o f the U nited States C ourts from funds appro\xc2\xad\npriated for expenses o f m aintenance o f the courts. T h is has been recognized as the\nappropriate m ethod o f com pensation by the C om ptroller G eneral. See 39 C om p. Gen. 133\n(1959).\n\xe2\x80\xa2 O f course, in "o th e r civil cases\xe2\x80\x9d the expert w itness\xe2\x80\x99 com pensation may be paid in part\nor w hole by the private party, if so directed by the court. See subsection (b) o f Rule 706.\n\n175\n\n\x0coperating funds.3 The second category includes \xe2\x80\x9cother civil actions,\xe2\x80\x9d\nwhere the expert witness is to be compensated by the parties.\nT he matter that occasioned this opinion is a dispute between the\nAdministrative Office and the Tennessee Valley Authority (TVA) over\nwhich Agency should pay the compensation of a court-appointed\nexpert witness in a condemnation case initiated and litigated by TVA.\nThe dispute centers on th e interpretation to be given the lanugage in\nsubsection (b) of Rule 706, which reads: \xe2\x80\x9cThe compensation thus fixed\nis payable from funds which may be provided by law in criminal cases\nand civil actions and proceedings involving just compensation under\nthe Fifth Amendment.\xe2\x80\x9d\nWe conclude that three interpretations can be drawn from the lan\xc2\xad\nguage quoted above. In considering all three interpretations, we think it\nwell advised to consider the old judicial admonition that words,\nphrases, or language in a statute should not be construed in isolation,\nbut in the context of the whole law and the overall congressional\npurpose. We also think it important to underscore the fact that the\nelastic w ord \xe2\x80\x9cmay\xe2\x80\x9d is used in the language quoted above, rather than\nthe restrictive word \xe2\x80\x9cshall.\xe2\x80\x9d Thus, we must attempt to reason out why\nCongress settled on the w ord \xe2\x80\x9cmay\xe2\x80\x9d and what kind of directional\nsignal it is supposed to furnish.\nFirst, it could be argued that the \xe2\x80\x9cwhich may be provided by law\xe2\x80\x9d\nlanguage simply means that if funds are appropriated for the purpose of\npaying court-appointed expert witnesses\xe2\x80\x99 fees, then, compensation can\nbe made therefrom. If not, the court must look elsewhere, presumably\nto the private party, to compensate the expert witness, or refrain from\nappointing one. This interpretation does not provide for a realistic\nscheme, because in condemnation cases the cost of the expert witness\ncan never be charged to th e landowner.4 It is also wanting in criminal\ncases, because many accused are indigents and would be unable to\ncompensate the expert witness. If accepted, this interpretation would\nhave the ultimate impact o f completely frustrating the stated congres\xc2\xad\nsional purpose: The possibility of any portion of a court-appointed\nexpert witness\xe2\x80\x99 fees being passed on to the private parties in condemna\xc2\xad\ntion cases and in many criminal cases is, for all practical purposes,\nnonexistent.\nA second interpretation is that the language \xe2\x80\x9cwhich may be provided\nby law \xe2\x80\x9d is used to give recognition to the fact that Congress has\nalready provided funds for court-appointed expert witnesses in criminal\ncases through appropriations to implement the Criminal Justice Act.\n3 G enerally, the A gency initiating and prosecuting actions on behalf o f the United\nS tates will be th e Departm ent o f Justice. H ow ever, w here another agency has the\nau th o rity to initiate and prosecute actions o n behalf o f the U nited States th e courta ppointed expert w itness should b e paid from that agency\xe2\x80\x99s general operating funds.\n4 United States v. 2,186.63 Acres o f Land, Wasatch County, Utah, 464 F. 2d 676, 678\n(10th C ir. 1972); United States v. Easement and Right-of-Way, 452 F. 2d 729, 730 (6th Cir.\n1971).\n\n176\n\n\x0cWe think this is the most rational approach, because all funds received\nby an agency, for specific purposes or for its general operations, are\nprovided by law. Unless Congress intended to refer to specific funds by\nthis language, it was surplusage and unnecessary. We believe it was\nused to denote the two means by which an expert witness could be\ncompensated in the first category of cases: in criminal cases by funds\nappropriated to implement the Criminal Justice Act and in condemna\xc2\xad\ntion cases by the litigating agency from its general operating funds.5\nThis appears to be consistent with Rule 706 and existing law.8 Howev\xc2\xad\ner, the language used to articulate this intent is far from clear.7\nIt could be argued that it was intended that court-appointed expert\nwitnesses in criminal and condemnation cases be treated alike because\nthey are included in the same category, and the Advisory Committee\xe2\x80\x99s\nNote to Rule 706 states that a \xe2\x80\x9ccomprehensive scheme for courtappointed experts was initiated with the adoption of Rule 28 of the\nFederal Rules of Criminal Procedure in 1946\xe2\x80\x9d and that \xe2\x80\x9c[t]he present\nrule expands the practice to include civil cases.\xe2\x80\x9d However, that would\nbe an overbroad interpretation of that language. It is true that Rule 706\nexpanded the practice already employed in criminal cases to civil cases,\nbut it does not necessarily follow that it also expanded the criminal\nmethod of compensation to civil cases. And the language of subsection\n(b) of Rule 706, which states that in \xe2\x80\x9cother civil cases\xe2\x80\x9d the parties are\nto compensate the expert witness, makes this position even more com \xc2\xad\npelling. Moreover, two years after enactment of the Federal Rules of\n\ns See note 3, supra.\n\xe2\x80\xa2 \xe2\x80\x9cW ithout exception, the decisions hold that in an original proceeding for the condem \xc2\xad\nnation o f land the costs arising in that proceeding fall on the condem nor. T h e reason\ntherefor is that to take the land against the landow ner\xe2\x80\x99s wishes and then charge him for\nthe cost o f taking w ould violate the constitutional prohibition against th e taking o f\nprivate property w ithout ju st com pensation.\xe2\x80\x9d Grand River Dam Authority v. Jarvis, 124 F.\n2d 914, 916 (10th Cir. 1942).\n7 A third interpretation w ould be that Congress intended to give the trial judge som e\ndiscretion in determ ining w h eth er a court-appointed expert w itness should be com pensat\xc2\xad\ned entirely by the United States o r w hether the parties should share this expense, as in\n\xe2\x80\x9co ther civil cases.\xe2\x80\x9d Perhaps this interpretation w ould be proper in crim inal cases w h e re\nthe accused is not an indigent. It w ould not be p ro p er in condem nation cases because the\nlandow ner could not be required to pay any part o f a court-appointed expert w itness\xe2\x80\x99\ncompensation. See, e.g., United States v. 2,186.63 Acres o f Land, Wasatch County, Utah,\nsupra, note 4. It w ould reduce ju st com pensation, a result prohibited by the F ifth\nAm endment. T his interpretation does not seem reasonable, because no distinction w as\nm ade betw een crim inal and condem nation cases relative to the trial ju d g e \xe2\x80\x99s discretion in\ndeterm ining w h eth er the U nited States should pay the expert w itness\xe2\x80\x99 fee in full o r\nw hether it should be borne by the parties.\n\n177\n\n\x0cEvidence, Congress has not appropriated any funds specifically for the\npurpose of Rule 706(b).8\nWe think the basic reason for establishing the special category for\ncriminal and condemnation cases was simply to place those cases in\nwhich the United States is the sole compensator in a separate and\ndistinct category. And, as we noted earlier, we conclude that the\nlanguage \xe2\x80\x9cwhich may be provided by law \xe2\x80\x9d was intended to signify that\nthe means for compensating court-appointed expert witnesses in the\ntw o types o f cases in this category are different.\nW e also conclude that Rule 706 has the effect of making the fees of\ncourt-appointed expert witnesses ordinary expenses of litigation. For\nthe Governm ent such expenses are generally paid by the litigating\nagency rather than the Administrative Office. Indeed, because the\nmonies appropriated to the Administrative Office are for the expense of\nmaintenance of the courts, it would seem to violate 31 U.S.C. \xc2\xa7 628 for\nthat Office to use such funds for any other purpose.9\nIt is our opinion that in condemnation cases or \xe2\x80\x9cother civil cases,\xe2\x80\x9d\nthe agency that initiates and prosecutes the action has responsibility for\ncompensating the court-appointed expert witness. In United States v.\n109 Acres o f Land , 10 it is our opinion that had the expert witness been\nappointed pursuant to Rule 706, TV A would be responsible for com\xc2\xad\npensating the expert witnesses. However, the expert witness was ap\xc2\xad\npointed before the Federal Rules of Evidence were enacted into law,\nand the court stated that the expert witness was appointed \xe2\x80\x9c[ujnder its\ninherent power so to do . . . as an aid to the Court in discharging its\nofficial duty.\xe2\x80\x9d We think that while Rule 706 recognizes a trial judge\xe2\x80\x99s\npow er to appoint his or her own expert, an expert witness appointed\npursuant to Rule 706 and an expert appointed by the judge pursuant to\nhis inherent pow er are not necessarily coequals.11 Thus, we conclude\nthat in this case the Administrative Office should pay the compensation\nof the court-appointed expert witnesses as expenses of maintenance of\nthe courts.12\nIn the future the practice of the Department will be to pay for the\nfull compensation of court-appointed expert witnesses in condemnation\n" T h e Senate and H ouse reports accom panying H .R . 5463, a bill to establish rules o f\nevidence for certain courts and proceedings, state that w ould \xe2\x80\x9centail no cost to the\nG o v ern m en t o f th e U nited States.\xe2\x80\x9d See S. Rep. N o. 1277, 93rd Cong., 2d Sess. 28 (1974)\nand H .R . R ep. N o. 650, 93rd C ong., 1st Sess. 19 (1973). T h a t is undoubtedly an o v e r\xc2\xad\nbroad statem ent unless Congress d id not intend th e purpose for enacting the rules to be\nc arried out. M oreover, as noted in the text, funds w ere already being provided for expert\nw itnesses in crim inal cases, and th e ir fees w ould n o t be passed on to the landow ner in\ncondem nation cases. How ever, this language can serve as an indication that Congress was\no f the opinion th at the funds to c arry out the purpose o f the new law already existed.\n\xe2\x80\x9c T h a t section states th at \xe2\x80\x9cE xcept as otherw ise provided b y law, sums appropriated for\nthe various branches o f expenditure in the public service shall be applied solely to the\nobjects for w hich th ey are respectively m ade, and for no oth ers.\xe2\x80\x9d\n10 404 F. Supp. 1392 (D . Tenn. 1975).\n11 See note 1, supra.\n1J See note 1, supra.\n\n178\n\n\x0ccases and as directed by the court in \xe2\x80\x9cother civil cases\xe2\x80\x9d where it is the\nlitigating agency. However, we are o f the opinion that it would be\nmore efficient and less burdensome from an administrative point of\nview, if Congress appropriated funds to the Administrative Office for\nthe purpose of compensating all court-appointed expert witnesses.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n179\n\n\x0c'


b'(Slip Opinion)\n\nSex Segregation in Youth Rodeo\nEvents Under Title IX Regulations\nThe maintenance of separate boys and girls divisions in rodeo competitions offered by the\nSouth Dakota 4-H Youth Development Program is authorized by the competitive-skill\nexception contained in the Title IX implementing regulation at 7 C.F.R. \xc2\xa7 15a.450(b),\nbut not by the contact-sport exception contained in that regulation.\nJanuary 13, 2021\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nDEPARTMENT OF AGRICULTURE\nThe South Dakota 4-H Youth Development Program operates youth\nrodeo competitions that maintain different divisions for boys and girls,\neach in turn divided into junior and senior age divisions. Participants\ncompete within their respective divisions at local or regional rodeo events,\nwith the top finishers in the regional and local rodeos qualifying to compete in a statewide rodeo contest. Each boys and girls division offers a\ndifferent, but overlapping, set of rodeo events. For instance, bull riding\nand steer wrestling are offered only in a boys division, while barrel racing\nand ribbon roping are offered only in girls divisions. At the same time,\nboth the junior boys division and the girls divisions offer break-away\nroping, goat tying, and flag racing.\nYour office has asked whether this youth rodeo program, which is operated by an organization that indirectly receives federal funds, violates\nregulations that implement Title IX of the Education Amendments of\n1972. 1 Those regulations prohibit recipients of federal funds from providing athletics separately based on sex. See 7 C.F.R. \xc2\xa7 15a.450(a). The regulations except from that prohibition, however, programs where the \xe2\x80\x9cselection\xe2\x80\x9d for the relevant athletic teams \xe2\x80\x9cis based upon competitive skill\xe2\x80\x9d\nor where \xe2\x80\x9cthe activity involved is a contact sport.\xe2\x80\x9d Id. \xc2\xa7 15a.450(b). The\nquestion is whether the 4-H youth rodeo program satisfies either of those\nexceptions.\n\n1 See Letter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel,\nfrom Inga Bumbary-Langston, Deputy General Counsel, United States Department of\nAgriculture (Oct. 3, 2018) (\xe2\x80\x9cUSDA Opinion Request\xe2\x80\x9d).\n\n1\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\nWe conclude that the maintenance of separate boys and girls divisions\nin the program is authorized by the competitive-skill exception, but not by\nthe contact-sport exception. The rodeo competitions select competitors for\nskill because the regional and local rodeos serve as qualifying events for\nthe statewide rodeo contest. But we do not think that these rodeos may be\ncharacterized as a \xe2\x80\x9ccontact sport.\xe2\x80\x9d That exception covers only sports that\npredominately involve, or have as a major purpose, \xe2\x80\x9ccontact\xe2\x80\x9d among the\ncompetitors. The 4-H rodeo program does not involve this type of contact,\nand so the sport does not qualify for this exception.\nI.\nTitle IX provides that no person shall \xe2\x80\x9cbe excluded from participation\nin,\xe2\x80\x9d \xe2\x80\x9cdenied the benefits of,\xe2\x80\x9d or \xe2\x80\x9csubjected to discrimination\xe2\x80\x9d \xe2\x80\x9con the\nbasis of sex\xe2\x80\x9d in federally funded educational programs. 20 U.S.C.\n\xc2\xa7 1681(a). Title IX\xe2\x80\x99s implementing regulations are contained in a Title IX\n\xe2\x80\x9ccommon rule\xe2\x80\x9d promulgated jointly by 21 agencies in 2000. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving\nFederal Financial Assistance, 65 Fed. Reg. 52,858 (Aug. 30, 2000). The\nDepartment of Agriculture (\xe2\x80\x9cUSDA\xe2\x80\x9d) adopted the common rule for its\nown operations in 2017. Education Programs or Activities Receiving or\nBenefitting from Federal Financial Assistance, 82 Fed. Reg. 46,655 (Oct.\n6, 2017). The regulations provide that Title IX applies to \xe2\x80\x9cany public or\nprivate agency, institution, or organization, or other entity, or any person,\nto whom Federal financial assistance is extended directly or through\nanother recipient.\xe2\x80\x9d 7 C.F.R. \xc2\xa7 15a.105; see also Nat\xe2\x80\x99l Collegiate Athletic\nAss\xe2\x80\x99n v. Smith, 525 U.S. 459, 468 (1999) (\xe2\x80\x9cEntities that receive federal\nassistance, whether directly or through an intermediary, are recipients\nwithin the meaning of Title IX[.]\xe2\x80\x9d).\nA.\nThe South Dakota 4-H Youth Development Program is an indirect recipient of federal funds. That is so by virtue of funding and services it\nreceives from South Dakota State University (\xe2\x80\x9cSDSU\xe2\x80\x9d), a land-grant\ninstitution supported by USDA. 2 See Smith-Lever Act of 1914, Pub. L.\n2 The federal government established land-grant institutions by granting federal land to\nthe states on condition that they create educational institutions on the property offering\n\n2\n\n\x0cSex Segregation in Youth Rodeo Events Under Title IX Regulations\n\nNo. 63-95, \xc2\xa7\xc2\xa7 1\xe2\x80\x933, 38 Stat. 372, 372\xe2\x80\x9374 (providing for the use of federal\nfunds by land-grant institutions for the promotion of agricultural development and education). SDSU\xe2\x80\x99s State Cooperative Extension Service\noffers educational programs to young people throughout the state, including by supporting the 4-H program. See SDSU Extension, About 4-H\n(Feb. 5, 2020), https://extension.sdstate.edu/south-dakota-4-h/learn-aboutsdsu-extension-4-h-program. 3 The rodeo competitions the program operates are therefore subject to the prohibitions in Title IX and its implementing regulations.\nSouth Dakota 4-H\xe2\x80\x99s rodeo competitions are generally organized into\nfour divisions, each with age and sex designations. See John Keimig,\nSouth Dakota 4-H Rodeo Rules & Regulations 4\xe2\x80\x935 (Jan. 2020) (\xe2\x80\x9c4-H\nRodeo Rules\xe2\x80\x9d). The junior girls and boys divisions are for children ages 8\nthrough 13, and the senior girls and boys divisions are for children ages\n14 through 18. Id. at 4. Each of the four divisions offers individual events\nin which one contestant competes at a time.\nThe junior girls division consists of five individual competitions:\nbreak-away roping, goat tying, barrel racing, pole bending, and flag\npractical programs like agricultural science and engineering. See Morrill Act of 1862,\nPub. L. No. 37-130, \xc2\xa7\xc2\xa7 1, 4\xe2\x80\x935, 12 Stat. 503, 503\xe2\x80\x9305; Morrill Act of 1890, Pub. L. No. 51840, \xc2\xa7 1, 26 Stat. 417, 417\xe2\x80\x9318; see also SDSU, The Land-Grant Heritage of SDSU,\nhttps://www.sdstate.edu/about-us/land-grant-heritage-sdsu (last visited Jan. 12, 2021)\n(describing the institution\xe2\x80\x99s creation as a result of the Morrill Act of 1862). The federal\ngovernment continues to fund land-grant institutions. See, e.g., Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. A, tit. I, 134 Stat. 1182 (2020); Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, div. B, tit. I, 133 Stat. 2612, 2617\n(2019).\n3 Congress first established the Cooperative Extension Service (\xe2\x80\x9cCES\xe2\x80\x9d) in the SmithLever Act of 1914. See id. \xc2\xa7 1, 38 Stat. at 372\xe2\x80\x9373 (codified at 7 U.S.C. \xc2\xa7 341) (\xe2\x80\x9cinaugurat[ing] . . . agricultural extension work which shall be carried on in cooperation with the\nUnited States Department of Agriculture\xe2\x80\x9d); SDSU Cooperative Extension Service, The\nSpirit of Cooperation: Cooperative Extension Service 1982 Annual Report, SDSU Extension Series Special 38 (1982) (\xe2\x80\x9cSouth Dakota CES Report\xe2\x80\x9d). Each state\xe2\x80\x99s CES works with\nthe state\xe2\x80\x99s land grant university to transfer information and research from the university to\nagricultural producers, business owners, consumers, and others in the state. See USDA,\nExtension, https://nifa.usda.gov/extension (last visited Jan. 12, 2021). This work includes\nthe provision of 4-H programs. South Dakota CES Report at 9. Funding for each state\xe2\x80\x99s\nCES comes from local, state, and federal appropriations, as well as private donations. Id.\nat 9, 37; see, e.g., Pub. L. No. 116-260, div. A, tit. I; Pub. L. No. 116-94, div. B, tit. I, 133\nStat. at 2617.\n\n3\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\nracing. Id. at 4, 12\xe2\x80\x9314. These are all timed events involving horseback\nriding. See id. at 12\xe2\x80\x9314. In break-away roping, the contestant ropes a\nrunning calf from horseback. Goat tying tests the speed with which the\ncontestant can ride to a goat tied to a stake, dismount, then throw and tie\nthe goat. See id. at 15. In barrel racing, the rider races around three barrels\narranged in a triangular configuration, and then to the finish line. In pole\nbending, the rider weaves through a course of six poles arranged at 21foot intervals. Id. at 13. And flag racing requires each rider to deposit one\nflag into a bucket, retrieve a flag from a second bucket, and then race\nacross a finish line. Id. at 14. The senior girls division has the same events\nas the junior girls division, except that instead of flag racing, it includes a\nribbon roping event, in which the rider ropes a calf from horseback,\ndismounts, and retrieves a ribbon from the calf\xe2\x80\x99s ear. See id. at 4, 15.\nThe junior boys division also has break-away roping, goat tying, and\nflag racing. Id. at 4, 9\xe2\x80\x9314. Junior boys compete as well in cattle riding and\nbareback steer riding\xe2\x80\x94\xe2\x80\x9crough stock\xe2\x80\x9d events in which an individual competitor rides a bucking animal for up to six seconds, receiving points\nbased on riding ability. See id. at 9\xe2\x80\x9310. The senior boys division has three\nrough stock events\xe2\x80\x94bareback bronc riding, saddle bronc riding, and bull\nriding\xe2\x80\x94which involve riding more powerful animals for up to eight\nseconds. Id. at 16\xe2\x80\x9318. Protective equipment, including a mouthpiece and a\nprotective vest, is mandatory for all rough stock events. Id. at 6. Senior\nboys also compete in calf roping, where a rider ropes a calf, dismounts,\nthen throws and ties the calf; as well as in steer wrestling, where competitors\xe2\x80\x94known as \xe2\x80\x9cdoggers\xe2\x80\x9d\xe2\x80\x94attempt to jump from horseback and wrestle\na running steer to the ground. 4 Id. at 17\xe2\x80\x9318.\nIn addition to the individual events offered in the four separate divisions, the senior and junior divisions both offer dally team roping, in\nwhich teams of two riders attempt to rope a steer. See id. at 4, 18. In\ncontrast to the other events, dally team roping is not designated for a\nparticular sex; instead, the 4-H rules state that the event\xe2\x80\x99s teams \xe2\x80\x9cmay be\nboth girls, both boys, or one girl and one boy.\xe2\x80\x9d Id. at 4.\nThe contestant in steer wrestling, or dogger, is assisted by a second rider on horseback\xe2\x80\x94known as a \xe2\x80\x9chazer\xe2\x80\x9d\xe2\x80\x94who rides along the other side of the steer to keep it running\nin a straight line. The hazer is not considered a contestant and may not render any assistance to the dogger after the dogger has jumped from the horse. Id. at 18.\n4\n\n4\n\n\x0cSex Segregation in Youth Rodeo Events Under Title IX Regulations\n\nAlthough the girls and boys divisions have different events, and though\neach event (except for dally team roping) is designated for a specific sex,\nthe 4-H Rodeo rules allow boys and girls to choose to compete in divisions designated for the other sex. See South Dakota 4-H Finals Inc.,\nRodeo Entry Process 3 (2020) (\xe2\x80\x9cEntry Form\xe2\x80\x9d) (noting that competing 4-H\nmembers \xe2\x80\x9care eligible to enter any offered 4-H Rodeo event regardless of\n[their] gender\xe2\x80\x9d). Entrants, however, may compete only in a single division\neach season. Id. (noting that entrants may compete in only one of the four\ndivisions \xe2\x80\x9cduring the 2020 4-H rodeo season\xe2\x80\x9d). We understand that boys\nand girls have in fact taken advantage of this opportunity. 5\nSouth Dakota 4-H rodeo has both local and state levels of competition.\nAt the local level, a county or a similar regional entity organizes the\nrodeo, and any 4-H member may sign up. See 4-H Rodeo Rules at 4\xe2\x80\x935. To\nqualify for the state finals, a participant must place among the top four\nfinishers in his or her division in that event in a regional contest, and he or\nshe may participate in the state finals in only those events for which he or\nshe has qualified. See id. 6 South Dakota 4-H rodeos also award \xe2\x80\x9callaround\xe2\x80\x9d honors to the person in the boys division\xe2\x80\x94the \xe2\x80\x9call-around cowboy\xe2\x80\x9d\xe2\x80\x94and the person in the girls division\xe2\x80\x94the \xe2\x80\x9call-around cowgirl\xe2\x80\x9d\xe2\x80\x94\n\nSee Editorial, No Reason to Change 4-H Rodeo for Title IX Compliance, Rapid City\nJ. (May 7, 2018) (\xe2\x80\x9cNo Reason to Change\xe2\x80\x9d) (\xe2\x80\x9c4-H Rodeo leaders say they have accommodated rare requests from girls to participate in boys events and vice versa.\xe2\x80\x9d); KristiForGovernor.com, Press Release, USDA\xe2\x80\x99s Perdue Sides with South Dakota 4-H Rodeo\nSupporters for Boys and Girls Events (Apr. 11, 2018) (\xe2\x80\x9cNoem Press Release\xe2\x80\x9d) (\xe2\x80\x9cIn 4-H\nrodeo in South Dakota, riding bulls and [riding] broncs . . . are called boys events,\nalthough girls are allowed to enter if they want to . . . . And some boys have chosen in\nrecent years to compete in barrel racing, or pole bending or ribbon roping, which are\ncalled girls events.\xe2\x80\x9d).\n6 The junior division may include participation options at the local level that do not\ninclude the possibility of qualifying for statewide competition. See 4-H Rodeo Rules at 10\n(offering a bareback bronc riding junior competition that \xe2\x80\x9cis not a state-qualifying\nevent\xe2\x80\x9d); Entry Form at 1 (describing an entry-level \xe2\x80\x9cJr Jr division\xe2\x80\x9d without statequalifying implications). Also, some local and regional rodeos are held outside of the\nstate-qualification process. See John Keimig, South Dakota 4-H Rodeo Policies & Procedures 3 (Jan. 2020) (\xe2\x80\x9c4-H Rodeo Policies\xe2\x80\x9d) (noting that some local and regional rodeos\nare \xe2\x80\x9cnon-qualifying\xe2\x80\x9d). As we explain later, the existence of these events does not affect\nour overall view that the South Dakota 4-H rodeo program complies with Title IX\xe2\x80\x99s\nimplementing regulations.\n5\n\n5\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\nwho accumulates the most points in a given rodeo based on his or her\norder of finish in each event in which he or she participates. Id. at 5.\nB.\nIn 1979, USDA\xe2\x80\x99s Office of General Counsel considered the application of the Title IX regulations to the 4-H rodeo program. USDA concluded that the rodeos, which it described as \xe2\x80\x9csex-exclusive or sexsegregated,\xe2\x80\x9d were subject to the general regulatory prohibition on sex\ndiscrimination, and that neither the contact-sport nor competitive-skill\nexception applied. See Memorandum for Dr. Mary Nell Greenwood,\nActing Deputy Director for Extension, Science, and Education Administration, USDA, from James Michael Kelly, Assistant General Counsel,\nUSDA, Re: Sex-Separate Events and Awards in 4-H Rodeo Contests at\n1\xe2\x80\x932 (1979) (\xe2\x80\x9c1979 USDA Memorandum\xe2\x80\x9d).\nNotwithstanding that view, South Dakota 4-H rodeo continued to operate boys and girls rodeo divisions. See South Dakota 4-H Rodeo, 48th\nAnnual South Dakota 4-H Finals Rodeo (2019) (\xe2\x80\x9c48th Annual Rodeo\xe2\x80\x9d)\n(reporting historical results for boys and girls divisions); Shaley\nLensegrav, No Changes Yet\xe2\x80\x94South Dakota 4-H Rodeo Won\xe2\x80\x99t Have to\nAdjust Events for Now, Tri-State Livestock News (May 8, 2018). Over the\nyears, USDA received multiple requests from South Dakota public officials for reconsideration of its view. See Memorandum for the Office of\nLegal Counsel from Inga Bumbary-Langston, Deputy General Counsel,\nUSDA, Re: USDA Position Statement on South Dakota 4-H Rodeo Title\nIX Issues at 1 (Dec. 12, 2018) (\xe2\x80\x9cUSDA Position Statement\xe2\x80\x9d) (describing\nthe requests for reconsideration by former South Dakota Senator Tom\nDaschle and Senator John Thune, among others).\nAlthough USDA in 2007 expressed some concern regarding the 1979\nmemorandum, see id., USDA adhered to its earlier conclusion in 2010,\nsee id.; see also Letter for Senator John Thune from Steven Silverman,\nDeputy General Counsel, USDA (Apr. 15, 2010). In 2018, Senator Thune\nagain raised the question. USDA Opinion Request at 3\xe2\x80\x934. USDA requested our opinion and stated that it currently believes the South Dakota 4-H\n\n6\n\n\x0cSex Segregation in Youth Rodeo Events Under Title IX Regulations\n\nrodeo should qualify for both the competitive-skill and contact-sport\nexceptions. See USDA Position Statement at 1\xe2\x80\x932, 4\xe2\x80\x937. 7\nII.\nWe first address whether the 4-H youth rodeo program complies with\nthe general prohibition of the Title IX regulation, 7 C.F.R. \xc2\xa7 15a.450(a),\nagainst treating persons \xe2\x80\x9cdifferently\xe2\x80\x9d and offering sports \xe2\x80\x9cseparately\xe2\x80\x9d\nbased on sex. Title IX itself provides some flexibility when it comes to\nthe differential treatment of the sexes in athletics. The regulation implements the statute through \xe2\x80\x9ca baseline prohibition against sex discrimination\xe2\x80\x9d in subsection (a) that sweeps more broadly than the statute itself.\nMercer v. Duke Univ., 190 F.3d 643, 646 (4th Cir. 1999) (Luttig, J.). This\nprohibition, on its face, \xe2\x80\x9cwould require covered institutions to integrate all\nof their sports teams,\xe2\x80\x9d id., but the regulation then tempers that broad\nprohibition with \xe2\x80\x9can explicit exception,\xe2\x80\x9d id., in subsection (b) for certain\ncategories of sports. We consider first whether the 4-H youth rodeo implicates the baseline prohibition. 8\nAs noted, Title IX does not proscribe all sex-based distinctions in athletic programs. Instead, it precludes sex-based \xe2\x80\x9cexclu[sion]\xe2\x80\x9d from,\n\xe2\x80\x9cdeni[al]\xe2\x80\x9d of the benefits of, or \xe2\x80\x9cdiscrimination under any education\nprogram or activity receiving Federal financial assistance.\xe2\x80\x9d 20 U.S.C.\n\xc2\xa7 1681(a). The Supreme Court has recognized that the term \xe2\x80\x9cdiscrimination\xe2\x80\x9d refers to \xe2\x80\x9ctreating [an] individual worse than others who are similarly situated.\xe2\x80\x9d Bostock v. Clayton County, 140 S. Ct. 1731, 1740 (2020); see\nIn preparing this opinion, we also consulted with the Civil Division and Civil Rights\nDivision of the Department of Justice and with the Office of the General Counsel of the\nDepartment of Education.\n8 The regulatory proscription is applicable to any \xe2\x80\x9cclub . . . athletics\xe2\x80\x9d that are offered\nseparately on the basis of sex. 7 C.F.R. \xc2\xa7 15a.450(a). The 4-H rodeo program is a \xe2\x80\x9cclub\xe2\x80\x9d\nbecause it involves \xe2\x80\x9c[a]n association formed to combine the operations or persons interested in the promotion of \xe2\x80\x9d youth rodeo competition. See The Oxford English Dictionary\n366\xe2\x80\x9368 (2d ed. 1989) (defining the noun \xe2\x80\x9cclub\xe2\x80\x9d and listing as examples of usage such\nphrases as \xe2\x80\x9cathletic\xe2\x80\x9d club, \xe2\x80\x9cfootball\xe2\x80\x9d club, \xe2\x80\x9ctennis\xe2\x80\x9d club, and \xe2\x80\x9cyacht\xe2\x80\x9d club); Random\nHouse Dictionary of the English Language 391 (2d ed. 1987) (\xe2\x80\x9cclub\xe2\x80\x9d: \xe2\x80\x9ca group of persons\norganized for a social, literary, athletic, political, or other purpose\xe2\x80\x9d). The competitors are\nlimited to 4-H members, and competitions are sponsored by regional or statewide clubs\nand chapters. See 4-H Rodeo Rules at 4 (requiring an affirmation by a 4-H club leader or\nprogram advisor that a child is in good standing to participate in 4-H rodeo contests).\n7\n\n7\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\nalso CSX Transp. Inc. v. Ala. Dep\xe2\x80\x99t of Revenue, 562 U.S. 277, 286\xe2\x80\x9387\n(2011). A recipient of federal funds that offers athletics separately does\nnot necessarily violate this prohibition, so long as the recipient is not\n\xe2\x80\x9cexcluding\xe2\x80\x9d members of either sex from participation in athletics, \xe2\x80\x9cdenying the benefits\xe2\x80\x9d of athletics to members of either sex, or \xe2\x80\x9ctreating [an]\nindividual worse than others who are similarly situated.\xe2\x80\x9d\nThe statute\xe2\x80\x99s history and structure drive home that it does not demand\nthat sexes be treated identically, in athletics or otherwise. The statute, for\nexample, expressly allows for sex separation in living facilities. See 20\nU.S.C. \xc2\xa7 1686 (\xe2\x80\x9c[N]othing contained herein shall be construed to prohibit\nany educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.\xe2\x80\x9d). And in 1974, responding to concerns that Title IX would disrupt intercollegiate athletics,\nCongress directed the Secretary of Health, Education, and Welfare\n(\xe2\x80\x9cHEW\xe2\x80\x9d) to promulgate regulations providing for \xe2\x80\x9creasonable provisions\nconsidering the nature of particular sports\xe2\x80\x9d in applying Title IX to colleges. Education Amendments of 1974, Pub. L. No. 93-380, \xc2\xa7 844, 88 Stat.\n484, 612 (1974); see McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 287 (2d Cir. 2004). The Secretary responded by\nadopting regulations permitting certain forms of sex segregation, including in athletics. See Nondiscrimination on the Basis of Sex, 40 Fed. Reg.\n24,128, 24,134, 24,142\xe2\x80\x9343 (June 4, 1975). The statute has been amended\nrepeatedly since then, see, e.g., McCormick, 370 F.3d at 286\xe2\x80\x9387 (discussing amendments made by the Civil Rights Restoration Act of 1987, Pub.\nL. No. 100-259, \xc2\xa7 3(a), 102 Stat. 28, 28\xe2\x80\x9329 (1988)), and although the\nmatter has been the subject of some debate within Congress, see N. Haven\nBd. of Educ. v. Bell, 456 U.S. 512, 531\xe2\x80\x9335 (1982), Congress has not disturbed these regulations. The overarching design of this scheme is not for\nthe sexes to be treated precisely the same in every respect, but rather, as\nHEW explained in guidance for the application of the new regulations, to\nadvance \xe2\x80\x9cthe overall goal of equal opportunity in athletics.\xe2\x80\x9d Sex Discrimination in Athletic Programs, 40 Fed. Reg. 52,655, 52,656 (Nov. 11,\n1975). \xe2\x80\x9c[T]he provisions of title IX grant flexibility to the recipient of\nfederal funds to organize its athletic program as it wishes, so long as the\ngoal of equal athletic opportunity is met.\xe2\x80\x9d Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 171 (3d Cir. 1993).\n8\n\n\x0cSex Segregation in Youth Rodeo Events Under Title IX Regulations\n\nGiven this history, the separate boys and girls divisions in the 4-H\nyouth rodeo program would not clearly violate the statute. No person is\nexcluded from or denied the benefits of the 4-H youth rodeo program,\nsince the divisions are not closed to any boy or girl based on sex, even\nthough the events are styled girls and boys events. And the differences in\nthe manner in which the rodeo events are offered do not necessarily treat\nany individual worse than others similarly situated but are instead based\nupon physical differences that generally exist between the sexes. For\nexample, certain events that are offered to both sexes have separate boys\nand girls categories, such as junior break-away roping, goat tying, and\nflag racing, in an effort to maximize participation and avoid having one\nsex or the other dominate a single, sex-integrated version of the event. In\n1979, USDA suggested that girls may have a physical advantage over\nboys in events involving horseback riding, owing to girls\xe2\x80\x99 comparatively\nlighter weight on average. See 1979 USDA Memorandum at 1. But in\nother events, \xe2\x80\x9cstrength and running speed are important in successful\nperformance; and generally boys have the advantage.\xe2\x80\x9d Id. Accounting for\ngenerally different physical characteristics of boys and girls does not\nnecessarily treat any person \xe2\x80\x9cworse\xe2\x80\x9d than another \xe2\x80\x9csimilarly situated.\xe2\x80\x9d See\nBostock, 140 S. Ct. at 1740. 9\nThese features of the 4-H rodeo program do not end the matter, however, because the baseline prohibition under subsection (a) of the regulation\nsweeps more broadly than the statute. The regulation, which is identical in\nall relevant respects to the one HEW promulgated in 1975, prohibits not\nonly \xe2\x80\x9cexclud[ing] from participation in . . . athletics\xe2\x80\x9d or \xe2\x80\x9cdiscriminat[ing]\nSouth Dakota 4-H rodeo is little different from other athletic events in which sex may\nindeed make a difference. See, e.g., Conversation About Title IX Continues in the 4-H\nRodeo World, KOTA TV (Apr. 20, 2018), https://www.kotatv.com/content/news/\nConversation-about-Title-IX-continues-in-the-4-H-Rodeo-world-480415473.html (explaining that integrated rodeos could preclude opportunities for boys or girls because\n\xe2\x80\x9cmerging events would give certain genders an edge on the competition\xe2\x80\x9d); see also id.\n(reporting a female competitor\xe2\x80\x99s concern that \xe2\x80\x9c[a] boy could easily come into girls events\nand compete with us, but it would be really hard for a girl to go into the guys\xe2\x80\x99 events and\ntie-down rope and steer wrestle\xe2\x80\x9d); Noem Press Release (\xe2\x80\x9cWhether it is barrel racing or\ncalf roping, the difference between the male and female competitors can create unfair\nadvantages[.]\xe2\x80\x9d); No Reason to Change (\xe2\x80\x9cOne of the valid reasons for an exemption [from\nthe rule against sex segregation for 4-H rodeo] is that having boys and girls competing\nagainst each other would create an unfair competitive advantage.\xe2\x80\x9d).\n9\n\n9\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\nagainst\xe2\x80\x9d anyone \xe2\x80\x9con the basis of sex\xe2\x80\x9d in athletics, but also \xe2\x80\x9con the basis of\nsex . . . treat[ing]\xe2\x80\x9d a person \xe2\x80\x9cdifferently from another person,\xe2\x80\x9d or providing \xe2\x80\x9cany such athletics separately on such basis.\xe2\x80\x9d 7 C.F.R. \xc2\xa7 15a.450(a).\nAs the Fourth Circuit recognized, \xe2\x80\x9c[s]tanding alone,\xe2\x80\x9d without subsection\n(b)\xe2\x80\x99s exceptions, subsection (a) would require covered institutions to\n\xe2\x80\x9cintegrate all of their sports teams.\xe2\x80\x9d Mercer, 190 F.3d at 646. This is\nbecause a prohibition on treating persons \xe2\x80\x9cdifferently\xe2\x80\x9d and offering sports\n\xe2\x80\x9cseparately\xe2\x80\x9d based on sex goes beyond separate offerings that discriminate\xe2\x80\x94in the sense of treating an individual \xe2\x80\x9cworse\xe2\x80\x9d than those \xe2\x80\x9csimilarly\nsituated,\xe2\x80\x9d see Bostock, 140 S. Ct. at 1740\xe2\x80\x94or that formally exclude the\nmembers of the opposite sex.\nThe structure of the youth rodeo program raises questions under this\nbaseline prohibition. In allowing both boys and girls to cross over to the\nothers\xe2\x80\x99 division, 4-H rodeo does avoid \xe2\x80\x9cexclud[ing]\xe2\x80\x9d any person \xe2\x80\x9cfrom,\xe2\x80\x9d\nor \xe2\x80\x9cden[ying]\xe2\x80\x9d a person \xe2\x80\x9cthe benefits of \xe2\x80\x9d the program on the basis of sex.\n7 C.F.R. \xc2\xa7 15a.450(a). But the fact remains that 4-H rodeo maintains distinct \xe2\x80\x9cboys\xe2\x80\x9d and \xe2\x80\x9cgirls\xe2\x80\x9d divisions, and the program thus appears to \xe2\x80\x9ctreat\xe2\x80\x9d\na person \xe2\x80\x9cdifferently from another person\xe2\x80\x9d based on sex, and \xe2\x80\x9cprovide\xe2\x80\x9d\nathletics \xe2\x80\x9cseparately\xe2\x80\x9d \xe2\x80\x9con the basis of \xe2\x80\x9d sex. See id. The boys and girls\ndivisions are each explicitly designated for one sex, and they are separate\xe2\x80\x94each division offers a distinct set of rodeo events, and competitors\nmay compete in only one division per season. See Entry Form at 3. Even\nif a boy or girl crossed over to the other division, he or she would still be\ncompeting in a separate set of events designed for the opposite sex. Separation is accomplished \xe2\x80\x9con the basis of sex\xe2\x80\x9d if sex \xe2\x80\x9cplayed a role\xe2\x80\x9d in and\nhad \xe2\x80\x9ca determinative influence\xe2\x80\x9d in creating the program\xe2\x80\x99s separate offerings. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993); see also\nComcast Corp. v. Nat\xe2\x80\x99l Ass\xe2\x80\x99n of African Am.-Owned Media, 140 S. Ct.\n1009, 1016 (2020) (equating the phrases \xe2\x80\x9con the basis of \xe2\x80\x9d and \xe2\x80\x9cbecause\nof \xe2\x80\x9d); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 185\xe2\x80\x9386 (2005)\n(Thomas, J., dissenting) (same); accord Gross v. FBL Fin. Servs., Inc.,\n557 U.S. 167, 176\xe2\x80\x9377 (2009) (holding that discrimination \xe2\x80\x9cbecause of\nage\xe2\x80\x9d in the Age Discrimination in Employment Act means that \xe2\x80\x9cage was\nthe \xe2\x80\x98but for\xe2\x80\x99 cause of \xe2\x80\x9d the discrimination); Univ. of Tex. Sw. Med. Ctr. v.\nNassar, 570 U.S. 338, 352\xe2\x80\x9353 (2013) (same holding for the same language that governs Title VII retaliation actions). We accordingly believe\n10\n\n\x0cSex Segregation in Youth Rodeo Events Under Title IX Regulations\n\nthat the current structure of South Dakota 4-H rodeo does implicate subsection (a) of section 15a.450.\nIII.\nWe consider then whether the 4-H rodeo program falls within either of\nthe two exceptions from that regulatory prohibition. Subsection (b) of\nsection 15a.450 allows recipients to offer sex-segregated \xe2\x80\x9cseparate\nteams.\xe2\x80\x9d It provides:\nSeparate teams. Notwithstanding the requirements of paragraph (a)\nof this section, a recipient may operate or sponsor separate teams for\nmembers of each sex where selection for such teams is based upon\ncompetitive skill or the activity involved is a contact sport. However,\nwhere a recipient operates or sponsors a team in a particular sport for\nmembers of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that\nsex have previously been limited, members of the excluded sex must\nbe allowed to try out for the team offered unless the sport involved is\na contact sport. For the purposes of this part, contact sports include\nboxing, wrestling, rugby, ice hockey, football, basketball, and other\nsports the purpose or major activity of which involves bodily contact.\n7 C.F.R. \xc2\xa7 15a.450(b). We think that the 4-H youth rodeo program satisfies the competitive-skill exception, but not the contact-sport exception.\nA.\nBecause the two exceptions apply where funding recipients \xe2\x80\x9coperate or\nsponsor separate teams for members of each sex,\xe2\x80\x9d a threshold question is\nwhether the 4-H rodeo program is organized in the form of \xe2\x80\x9cteams.\xe2\x80\x9d\n7 C.F.R. \xc2\xa7 15a.450(b). With the exception of dally team roping (and,\narguably, steer wrestling), 4-H youth rodeo events are not \xe2\x80\x9cteam\xe2\x80\x9d sports\nin the sense that competitors work together with others. Nor do rodeo\nparticipants compete against each other as members of \xe2\x80\x9cteams\xe2\x80\x9d of individual competitors. When the top finishers in local and regional rodeos go\non to the state rodeo finals, for instance, they do not participate as members of \xe2\x80\x9cteams\xe2\x80\x9d from their localities or regions. See generally 4-H Rodeo\n11\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\nRules; see also, e.g., 48th Annual Rodeo at 8\xe2\x80\x9311, 20, 26, 30 (listing\nindividual winners from past state rodeos, but not designating any particular local or regional entity as a winner). But we do not think the exceptions apply only to sports structured as \xe2\x80\x9cteam\xe2\x80\x9d competitions. Instead, the\nword \xe2\x80\x9cteam\xe2\x80\x9d can also refer to separate groups of individuals competing\nagainst each other as individuals\xe2\x80\x94here, in the statewide rodeo finals.\nThe term \xe2\x80\x9cteam\xe2\x80\x9d does not exclusively describe individuals who compete on the same side in an athletic competition against other groups. That\nword also commonly refers to a set of people associated together for an\nactivity. See Webster\xe2\x80\x99s Third New International Dictionary 2346 (2002)\n(defining \xe2\x80\x9cteam\xe2\x80\x9d as \xe2\x80\x9ca number of persons associated together in work or\nactivity\xe2\x80\x9d); see also The American Heritage Dictionary of the English\nLanguage 1786 (5th ed. 2016) (\xe2\x80\x9cteam\xe2\x80\x9d: \xe2\x80\x9cA group organized for work or\nactivity\xe2\x80\x9d); Merriam-Webster\xe2\x80\x99s Collegiate Dictionary 1282 (11th ed. 2003)\n(\xe2\x80\x9cteam\xe2\x80\x9d: \xe2\x80\x9ca number of persons associated together in work or activity\xe2\x80\x9d).\nWe can speak of a team of researchers working to cure a disease, a team\nof horses pulling a carriage, a rescue team searching for survivors, or the\nA-Team making sure a plan comes together. We think this sense of the\nword \xe2\x80\x9cteam\xe2\x80\x9d makes it reasonable to say, in the context of club athletics,\nthat we may similarly speak of, for example, a tennis team, or a golf team,\neven if the members may play and compete only with each other. In this\nsense, the South Dakota 4-H rodeo program indeed provides separate\n\xe2\x80\x9cteams\xe2\x80\x9d\xe2\x80\x94various rodeo events in the boys division and a girls division at\nthe statewide rodeo finals. The participants in the rodeo competitions are\n\xe2\x80\x9cassociated\xe2\x80\x9d with each other in that all are competing in a related set of\nactivities for one organization, even though most of the events involve\nonly one individual competing at a time.\nThis understanding of the word \xe2\x80\x9cteam\xe2\x80\x9d comports with the structure of\nthe regulation. The exceptions contemplate that funding recipients may\nseparately offer individual sports as well as team sports, since they list\n\xe2\x80\x9cboxing\xe2\x80\x9d and \xe2\x80\x9cwrestling\xe2\x80\x9d as examples of \xe2\x80\x9ccontact sports\xe2\x80\x9d that may be\nprovided separately. 7 C.F.R. \xc2\xa7 15a.450(b). If the exception applied only\nwhen individuals compete collectively as \xe2\x80\x9cteammates\xe2\x80\x9d against other\nteams of competitors, then the regulation would prohibit offering individual tournaments separately by sex, even in athletic competitions in which\nthe sexes do not appear to be similarly situated, such as boxing tournaments or wrestling tournaments. Yet the courts have not suggested that\n12\n\n\x0cSex Segregation in Youth Rodeo Events Under Title IX Regulations\n\nholding such tournaments separately violates these regulations. See\nMansourian v. Bd. of Regents of Univ. of Cal. at Davis, 816 F. Supp. 2d\n869, 927 (E.D. Cal. 2011) (applying the contact-sport exception to allegations that the defendant, among other things, had failed to offer equal\nathletic opportunities in sponsoring a wrestling tournament); Laf ler v.\nAthletic Bd. of Control, 536 F. Supp. 104, 106 (W.D. Mich. 1982) (observing in the context of a girl\xe2\x80\x99s attempt to join a boxing tournament that\n\xe2\x80\x9cregulations promulgated under Title IX . . . specifically permit the establishment of separate male and female teams\xe2\x80\x9d). 10 As we have already\nnoted, Title IX does not prohibit sex segregation of sports in which the\nsexes are not similarly situated; rather, Congress specifically directed that\nthe statute be administered in a way that makes \xe2\x80\x9creasonable provisions\nconsidering the nature of particular sports.\xe2\x80\x9d See Education Amendments\nof 1974 \xc2\xa7 844, 88 Stat. at 612; see also Kelley v. Bd. of Trustees, 35 F.3d\n265, 270 (7th Cir. 1994) (describing Congress as directing that the scheme\nbe administered to account for the \xe2\x80\x9cunique set of problems\xe2\x80\x9d presented by\nTitle IX\xe2\x80\x99s application to athletics). The regulation should be read in\nharmony with that directive. See, e.g., Fed. Express Corp. v. Holowecki,\n552 U.S. 389, 401\xe2\x80\x9302 (2008) (interpreting regulation in accordance with\nthe \xe2\x80\x9cstructure and purposes\xe2\x80\x9d of the statute it implements). Reading the\nregulation to bar all sex-segregated individual competitions would not\nhonor that statutory mandate. By contrast, reading the regulation to exempt both athletics organized by individual competitions as well as by\ngroup competitions gives funding recipients the congressionally intended\nflexibility to offer sports separately where the sexes may not be similarly\nsituated.\nThis interpretation is consistent with the history of the regulation. After\nHEW first promulgated this regulation in 1975, that agency issued guid10 Although the opinions do not clearly specify that these tournaments involved individual competitions, other sources indicate that the tournaments were individual ones.\nSee Fresno State University, Wrestlers Back in Shape at Aggie Open (Jan. 17, 2004),\nhttps://gobulldogs.com/news/2004/1/17/Wrestlers_Back_in_Shape_at_Aggie_Open.aspx\n(describing the individualized structure of the relevant tournament); U.S. Air Force\nAcademy Wrestling, Air Force Claims Three Titles at Aggie Wrestling Open (Jan. 8,\n2001), https://goairforcefalcons.com/news/2001/1/8/Air_Force_Claims_Three_Titles_at_\nAggie_Wrestling_Open.aspx (same); Boxing, Lansing State J., Feb. 9, 1982, at C3,\nhttps://www.newspapers.com/clip/6976080/lansing-state-journal/ (reporting the results\nof the tournament).\n\n13\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\nance making clear that the \xe2\x80\x9cseparate teams\xe2\x80\x9d exception refers not to the\nteam-based organization of a sport, but rather \xe2\x80\x9cto the manner in which a\ngiven sports activity is to be offered.\xe2\x80\x9d 40 Fed. Reg. at 52,656. The guidance noted additionally that \xe2\x80\x9c[c]ontact sports and sports for which teams\nare chosen by competition may be offered either separately or on a unitary\nbasis.\xe2\x80\x9d Id. A similar suggestion appears in policy guidance issued in 1979\nby HEW, which characterized the exception as applying generally \xe2\x80\x9c[i]n\nthe selection of sports.\xe2\x80\x9d Title IX of the Education Amendments of 1972; a\nPolicy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg.\n71,413, 71,417 (Dec. 11, 1979). Many funding recipients, as a matter of\ncommon practice, will likely offer athletics through sports that place one\nteam in competition against other teams. But the focus of the guidance is\non whether the organization\xe2\x80\x99s offerings\xe2\x80\x94however they are structured\xe2\x80\x94\nare effectively providing athletic opportunities for both sexes. See 40 Fed.\nReg. at 52,656 (describing the \xe2\x80\x9coverall goal of equal opportunity in athletics\xe2\x80\x9d).\nWe think that these guidance documents correctly interpret the regulatory exceptions. The exceptions in the current regulations are identical in\nall relevant respects to the exceptions interpreted by HEW\xe2\x80\x99s 1975 guidance and 1979 policy statement. See 40 Fed. Reg. at 24,142\xe2\x80\x9343 (original\nregulations); 65 Fed. Reg. at 52,872\xe2\x80\x9373 (promulgation of the current Title\nIX common rule); 82 Fed. Reg. at 46,664 (adoption of the common rule,\nincluding the athletics provisions, for USDA). And in adopting the common rule in which that language appears today, the agencies did not\nintend to modify the application of the athletics regulations as HEW had\npreviously interpreted them. See 65 Fed. Reg. at 52,862 (explaining that,\nbecause \xe2\x80\x9ccollegiate athletic programs are already covered by the Department of Education\xe2\x80\x99s Title IX regulations, and have been since 1975,\xe2\x80\x9d\nathletic programs would \xe2\x80\x9cnot be affected by [the] common rule\xe2\x80\x9d); id. at\n52,859 (noting that the common rule was intended, among other things, to\n\xe2\x80\x9cmaintain[] consistency of interpretation of regulations enforcing Title\nIX\xe2\x80\x9d). Thus, even when an organization like South Dakota 4-H offers a\nsport that does not involve teams competing against each other, we think\nthat the regulatory exception still applies to permit separate athletic offerings where the sport in question is a competitive or contact sport.\nFinally, this interpretation is consonant with the purpose of the statute:\nto ensure that members of both sexes have equal opportunity to compete\n14\n\n\x0cSex Segregation in Youth Rodeo Events Under Title IX Regulations\n\nin athletics. Offering athletics separately prevents members of one sex\nfrom dominating athletic events based on an inherent physical advantage.\nSee, e.g., Yellow Springs Exempted Vill. Sch. Dist. Bd. of Educ. v. Ohio\nHigh Sch. Athletic Ass\xe2\x80\x99n, 647 F.2d 651, 657\xe2\x80\x9358 (6th Cir. 1981) (noting\nthat contrary regulations requiring sex integration regardless of skill or\nother considerations \xe2\x80\x9cmight result in male dominance of all teams and\ncause a return to pre-Title IX conditions, a result completely at variance\nwith the statute\xe2\x80\x99s purpose\xe2\x80\x9d); cf. O\xe2\x80\x99Connor v. Bd. of Educ. of Sch. Dist. 23,\n449 U.S. 1301, 1307 (1980) (Stevens, Circuit Justice) (observing in the\nequal-protection context that \xe2\x80\x9c[w]ithout a gender-based classification in\ncompetitive contact sports, there would be a substantial risk that boys\nwould dominate the girls\xe2\x80\x99 programs and deny them an equal opportunity\nto compete in interscholastic events\xe2\x80\x9d). Yet the potential for such inherent\nadvantages is not limited to sports organized as \xe2\x80\x9cteams\xe2\x80\x9d such as basketball and soccer, or sports involving \xe2\x80\x9cteams\xe2\x80\x9d of individuals that compete\ncollectively against other \xe2\x80\x9cteams.\xe2\x80\x9d That potential exists in wholly individual sports as well. We thus think that the regulation does not require\nintegration of all sports where the competitors compete as individuals, but\ninstead allows both group and individual sports to be offered separately to\neach sex, so long as the teams of competitors satisfy the competitive-skill\nor contact-sport exception, and the recipient otherwise \xe2\x80\x9cprovide[s] equal\nathletic opportunity for members of both sexes.\xe2\x80\x9d 7 C.F.R. \xc2\xa7 15a.450(c).\nB.\nHaving concluded that the 4-H youth rodeos involve the operation of\n\xe2\x80\x9cteams\xe2\x80\x9d within the meaning of the regulation, we next consider whether\nthe competitive-skill exception applies. This exception permits the operation and sponsorship of \xe2\x80\x9cseparate teams\xe2\x80\x9d if \xe2\x80\x9cselection for such teams is\nbased upon competitive skill.\xe2\x80\x9d 7 C.F.R. \xc2\xa7 15a.450(b). South Dakota 4-H\nrodeo satisfies this exception. Local or regional 4-H rodeo participants\ncompete for one of that rodeo\xe2\x80\x99s four spots in each state finals event and\nare selected to the state finals based on their performance. See 4-H Rodeo\nRules at 4\xe2\x80\x935. Those groups constitute the statewide-finals \xe2\x80\x9cteams,\xe2\x80\x9d which\ntherefore may permissibly be operated and sponsored in separate boys and\ngirls divisions. See 7 C.F.R. \xc2\xa7 15a.450(b).\n\n15\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\nThe process of selecting boys and girls for those teams is clearly based\nupon \xe2\x80\x9ccompetitive skill.\xe2\x80\x9d Similar to tryouts for more traditional sports\nteams, boys and girls in each local or regional rodeo division compete for\nselection to the groups of boys and girls who will participate in the\nstatewide rodeo events. The local and regional competitions involve a\nchoice of certain competitors over others based on skill in a given event.\nThe statewide rodeo divisions thus may permissibly be sex-segregated.\nIt follows that the local and regional rodeo divisions may be sexsegregated as well, even though they are open to all without regard to\nskill. See 4-H Rodeo Rules at 4. The events in the local and regional\nrodeos may be offered separately based on sex because the regulatory\nexception allows a funding recipient to \xe2\x80\x9coperate or sponsor\xe2\x80\x9d separate\nteams. 7 C.F.R. \xc2\xa7 15a.450(b). One way to \xe2\x80\x9coperate\xe2\x80\x9d or \xe2\x80\x9csponsor\xe2\x80\x9d a team\nis to hold a tryout competition to select its members. Here, the local and\nregional rodeos are tryouts for, and therefore part of operating and sponsoring, the statewide-finals teams. The regulation, indeed, contemplates\nthe possibility of tryout competitions in specifying that, \xe2\x80\x9cwhere a recipient operates or sponsors a team in a particular sport for members of one\nsex, but operates or sponsors no such team for members of the other sex,\xe2\x80\x9d\nthe \xe2\x80\x9cmembers of the excluded sex\xe2\x80\x9d in some instances \xe2\x80\x9cmust be allowed to\ntry out for the team offered.\xe2\x80\x9d Id. (emphasis added). 11 This result is consistent with the purpose of providing equal athletic opportunity. If the\nlocal and regional rodeos could not be sex-segregated, then the statewidefinals events likely would be dominated by one sex or the other. Boys, for\nexample, might dominate events in which competitors are advantaged by\nphysical strength, like rough stock events; and girls could dominate in\nother events, such as those involving racing on horseback. See 1979\nUSDA Memorandum at 1; see also supra note 9. The regulation therefore\npermits sex-segregation in the local and regional rodeos.\nIn particular, the members of the excluded sex must be allowed to try out for the\nsingle-sex team if (1) \xe2\x80\x9cathletic opportunities for members of that sex have previously\nbeen limited,\xe2\x80\x9d and (2) the sport is not a \xe2\x80\x9ccontact sport.\xe2\x80\x9d Id. This requirement might be\nimplicated by the fact that barrel racing, pole bending, and ribbon roping are offered only\nin the girls divisions, while rough stock events are offered only in the boys divisions. But\neven if the rodeo program had \xe2\x80\x9cpreviously . . . limited\xe2\x80\x9d opportunities for either sex, it\nwould still satisfy this \xe2\x80\x9ctryout\xe2\x80\x9d requirement because girls and boys are eligible to enter all\nrodeo events, even those designated for the opposite sex.\n11\n\n16\n\n\x0cSex Segregation in Youth Rodeo Events Under Title IX Regulations\n\nThere is a further wrinkle, however, because not all those rodeo events\nare tryouts for the statewide rodeo. Some local and regional rodeos operate a \xe2\x80\x9cJr Jr division,\xe2\x80\x9d which involves separate competitions that mirror the\njunior rodeo events, but do not qualify participants for the statewide\nevents. See, e.g., Entry Form at 1. And some of those rodeos (or some\nevents at certain rodeos) are not part of the state-qualification process at\nall. See, e.g., 4-H Rodeo Polices at 3; 4-H Rodeo Rules at 10 (describing\nthe optional bareback bronc riding event in the junior boys division).\nBecause competition in non-qualifying rodeo events does not involve a\nnarrowing selection process to compete in the state finals, these events do\nnot fit as naturally into the regulatory exception as do the events in which\nparticipants may qualify for the state finals.\nStill, we think that even the non-qualifying events may reasonably be\nviewed as part of the \xe2\x80\x9coperation\xe2\x80\x9d of the South Dakota 4-H rodeo state\nfinals \xe2\x80\x9cteams.\xe2\x80\x9d The non-qualifying competitions are opportunities for\nyounger competitors to train and prepare for eventually competing in\nevents that do potentially qualify participants for the teams at the state\nlevel. A funding recipient may provide noncompetitive offerings that are\nreasonably incidental to the competitive elements of the sport in question.\nMany colleges and high schools, for example, commonly prepare their\nstudent-athletes for competition on a single-sex team through scrimmages,\nopen houses, or preseason matches that are unrelated to the team\xe2\x80\x99s initial\ntryout process and that have no impact on the standing of the team in\ninterscholastic competition. Yet we are aware of no administrative guidance or enforcement history suggesting that such incidental operations\nmust be sex-integrated. By the same reasoning, if South Dakota 4-H may\noperate separate boys and girls teams at the state level of competition, it\nmay also operate sex-segregated events designed to prepare competitors\nfor the rigors of reaching and participating in that level of competition.\nWe think therefore that the regulation does not require that non-qualifying\nrodeo events be sex-integrated.\nC.\nWe next address the contact-sport exception. The regulation permits\noperating \xe2\x80\x9cseparate teams\xe2\x80\x9d where the sport \xe2\x80\x9cis a contact sport.\xe2\x80\x9d 7 C.F.R.\n\xc2\xa7 15a.450(b). The regulation goes on to elaborate that \xe2\x80\x9ccontact sports\n17\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\ninclude boxing, wrestling, rugby, ice hockey, football, basketball, and\nother sports the purpose or major activity of which involves bodily contact.\xe2\x80\x9d Id. Because rodeo does not appear on that list, the question is\nwhether rodeo is some \xe2\x80\x9cother sport[] the purpose or major activity of\nwhich involves bodily contact.\xe2\x80\x9d We think it is not.\nBy \xe2\x80\x9cbodily contact,\xe2\x80\x9d we read the regulation to require purposeful and\nfrequent physical contact among the sport\xe2\x80\x99s competitors, not contact that\nmay result if a competitor\xe2\x80\x99s body hits the ground, a stationary object, an\nanimal, or, incidentally, another competitor. The regulation exempts\n\xe2\x80\x9ccontact sports,\xe2\x80\x9d a term that ordinarily refers to sports involving routine\ncontact between competitors. See, e.g., American Heritage Dictionary at\n396 (\xe2\x80\x9ccontact sport\xe2\x80\x9d: \xe2\x80\x9cA sport, such as football or hockey, that involves\nphysical contact between players as part of normal play.\xe2\x80\x9d (emphasis\nadded)); Random House Dictionary at 438 (\xe2\x80\x9c[A]ny sport in which physical contact between players is an accepted part of play, as football, boxing, or hockey.\xe2\x80\x9d (emphasis added)). 12 Moreover, the phrase \xe2\x80\x9cbodily contact\xe2\x80\x9d is preceded by a list of examples of \xe2\x80\x9ccontact sports,\xe2\x80\x9d all of which\ninvolve \xe2\x80\x9cbodily contact\xe2\x80\x9d occurring among the sport\xe2\x80\x99s competitors themselves. 13 Where \xe2\x80\x9cgeneral words follow specific words in a statutory enu-\n\n12 See also Macmillan Dictionary, https://www.macmillandictionary.com/dictionary/\nbritish/contact-sport?q=contact+sports (last visited Jan. 12, 2021) (\xe2\x80\x9ccontact sport\xe2\x80\x9d: \xe2\x80\x9ca\nsport such as rugby, boxing, or American football in which the players have strong or\nviolent physical contact with each other\xe2\x80\x9d (emphasis added)); Longman Dictionary, https://\nwww.ldoceonline.com/dictionary/contact-sport (last visited Jan. 12, 2021) (\xe2\x80\x9ca sport . . . in\nwhich players have physical contact with each other\xe2\x80\x9d (emphasis added)).\n13 See, e.g., USA Boxing, National Rulebook 18\xe2\x80\x9319 (2017) (providing that scores\ndepend on the number of \xe2\x80\x9cquality blows\xe2\x80\x9d struck against an opponent); NCAA, Wrestling 2019\xe2\x80\x9320 and 2020\xe2\x80\x9321 Rules Book 14 (2019), http://www.ncaapublications.com/\nproductdownloads/WR20.pdf (\xe2\x80\x9cWhile wrestling, the match shall be stopped whenever\ncontact is not maintained.\xe2\x80\x9d (emphasis added)); World Rugby, Laws of the Game: Rugby\nUnion 17, 21 (2018) (describing aspects of the game in which players \xe2\x80\x9c[g]rasp[]\nanother player\xe2\x80\x99s body\xe2\x80\x9d or are otherwise \xe2\x80\x9cin physical contact\xe2\x80\x9d with each other); NCAA,\nIce Hockey 2018\xe2\x80\x9319 and 2019\xe2\x80\x9320 Rules and Interpretations 9 (2019), http://www.\nncaapublications.com/productdownloads/IH20_20190826.pdf (explaining that the contact inherent in the game requires diligence about safety risks and clarifying the sorts of\n\xe2\x80\x9c[a]llowable [c]ontact\xe2\x80\x9d in women\xe2\x80\x99s ice hockey); NCAA, Football 2019 Rules Book 28,\n39 (2019), http://www.ncaapublications.com/productdownloads/FR19.pdf (describing\nfootball-related activities such as \xe2\x80\x9cblocking\xe2\x80\x9d and \xe2\x80\x9ctackling,\xe2\x80\x9d which necessarily involve\ncontact); NCAA, Men\xe2\x80\x99s Basketball 2019\xe2\x80\x9320 Rules Book 48 (2019), http://www.\n\n18\n\n\x0cSex Segregation in Youth Rodeo Events Under Title IX Regulations\n\nmeration, the general words are usually construed to embrace only objects\nsimilar in nature to those objects enumerated by the preceding specific\nwords.\xe2\x80\x9d Yates v. United States, 574 U.S. 528, 545 (2015) (brackets omitted). Hence, the catch-all phrase \xe2\x80\x9cother sport[] the purpose of major\nactivity of which involves bodily contact\xe2\x80\x9d is best read to mean, like all the\nother sports on that list, sports involving \xe2\x80\x9cbodily contact\xe2\x80\x9d occurring\nprimarily between the competitors themselves.\nThe events offered in the 4-H youth rodeo program are not contact\nsports in this sense. First, in no rodeo event is the \xe2\x80\x9cpurpose\xe2\x80\x9d of the event\nfor two people to come into physical contact with each other. Two competitors are involved in dally team roping, but the purpose of the event\ninvolves working together to rope a calf while on horseback. Steer wrestling also involves participation between two people on horseback\xe2\x80\x94the\nhazer attempts to keep the steer close to the dogger\xe2\x80\x94but the purpose is to\nhelp the dogger bring the steer to the ground, not to contact the other\nperson. See 4-H Rodeo Rules at 17\xe2\x80\x9318. Some events also involve other\npersons on the playing field with the competitors, such as in rough stock\nevents, where safety personnel attempt to protect the rider after he falls\noff the animal. See USDA Position Statement at 5. But any such human\ncontact is incidental to the event and outside the ordinary course of play.\nSecond, we do not understand that, \xe2\x80\x9ctak[ing] into account the realities\nof the situation on the playing field,\xe2\x80\x9d incidental human-to-human bodily\ncontact occurs so regularly in these rodeos that the contact might constitute a \xe2\x80\x9cmajor activity\xe2\x80\x9d of the sport. See Williams, 998 F.2d at 173 (concluding that field hockey is similar to a \xe2\x80\x9ccontact sport\xe2\x80\x9d in part because the\ngame\xe2\x80\x99s formal rules sanction \xe2\x80\x9cbodily contact\xe2\x80\x9d as a regular occurrence\nwithin the sport); see also Kleczek v. R.I. Interscholastic League, Inc., 768\nF. Supp. 951, 955\xe2\x80\x9356 (D.R.I. 1991) (reviewing the frequency of bodily\ncontact in field hockey and the allowance for such contact within official\ngame rules when evaluating whether field hockey is a \xe2\x80\x9ccontact sport\xe2\x80\x9d).\nUSDA describes only \xe2\x80\x9canecdotal\xe2\x80\x9d evidence of contact with safety personnel, USDA Opinion Request at 4, and the other principal types of contact\nin rodeo\xe2\x80\x94contact with animals and contact with the ground, see 4-H\nRodeo Rules at 13; Stephen Rice, Medical Conditions Affecting Sports\nncaapublications.com/productdownloads/BR20.pdf (explaining that certain contact\nbetween players is \xe2\x80\x9cgenerally accepted as . . . occur[ring] in a basketball game\xe2\x80\x9d).\n\n19\n\n\x0c45 Op. O.L.C. __ (Jan. 13, 2021)\n\nParticipation, 121 Am. Acad. of Pediatrics 841 (2008) (\xe2\x80\x9cMedical Conditions\xe2\x80\x9d)\xe2\x80\x94do not involve contact with other competitors.\nFinally, we do not agree that rodeo is a \xe2\x80\x9ccontact sport\xe2\x80\x9d simply because\nsome of its events involve wearing safety equipment to decrease the \xe2\x80\x9crisk\nof an acute injury.\xe2\x80\x9d See Medical Conditions at 841\xe2\x80\x9342; see also USDA\nPosition Statement at 5 (relying in part on the \xe2\x80\x9cserious risks of injuries\xe2\x80\x9d\nidentified by the American Academy of Pediatrics to support application\nof the contact-sport exception). Application of the regulation turns on\nwhether the sport in question involves \xe2\x80\x9cbodily contact\xe2\x80\x9d as a \xe2\x80\x9cpurpose or\nmajor activity\xe2\x80\x9d of the sport, 7 C.F.R. \xc2\xa7 15a.450(b), not a risk of injury,\nand the existence of the latter does not necessarily imply the existence of\nthe former. Cycling and competitive shooting, for example, both involve\nwearing safety equipment to guard against serious injury, but it hardly\nfollows that they are contact sports. See, e.g., Int\xe2\x80\x99l Shooting Sport Fed\xe2\x80\x99n,\nGeneral Technical Rules 229 (Jan. 2020) (urging use of eye and hearing\nprotection); USA Cycling, 2020 Rule Book 29 (Jan. 2020) (requiring a\nhelmet in all cycling events).\nIII.\nFor the reasons explained above, we conclude that the maintenance of\nseparate boys and girls divisions in the South Dakota 4-H rodeo program\nsatisfies the competitive-skill exception to the Title IX implementing\nregulations, but not the contact-sport exception. 7 C.F.R. \xc2\xa7 15a.450(b).\nHENRY C. WHITAKER\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n20\n\n\x0c'


b'Legality of Alternative Organ Donation Practices\nUnder 42 U.S.C. \xc2\xa7 274e\nTwo alternative kidney donation practices, in which a living donor who is incompatible with his\nintended recipient donates a kidney to a stranger in exchange for the intended recipient\xe2\x80\x99s receiving a\nkidney from another donor or increased priority on a waiting list, do not violate the prohibition on\ntransfers of organs for \xe2\x80\x9cvaluable consideration\xe2\x80\x9d in 42 U.S.C. \xc2\xa7 274e.\n\nMarch 28, 2007\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF HEALTH AND HUMAN SERVICES\nSection 301 of the National Organ Transplant Act (\xe2\x80\x9cNOTA\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d), entitled\n\xe2\x80\x9cProhibition of organ purchases,\xe2\x80\x9d imposes criminal penalties of up to $50,000 and\nfive years in prison on any person who \xe2\x80\x9cknowingly acquire[s], receive[s], or\notherwise transfer[s] any human organ for valuable consideration for use in human\ntransplantation if the transfer affects interstate commerce.\xe2\x80\x9d Pub. L. No. 98-507,\n\xc2\xa7 301, 98 Stat. 2339, 2346\xe2\x80\x9347 (1984) (codified at 42 U.S.C. \xc2\xa7 274e (2000)). You\nhave asked whether certain arrangements for donation of kidneys by living donors\ninvolve \xe2\x80\x9cvaluable consideration\xe2\x80\x9d under this statute. We conclude that they do not.\nI.\nSomeone requiring a kidney transplant may generally obtain a kidney in two\nways. First, he may join a national waiting list to receive a kidney from a deceased\ndonor. There are far more people waiting, however, than there are cadaveric\nkidneys available, and the wait can be long. Alternatively, such a person may\nreceive a kidney from a living donor. In many cases, however, the would-be donor\nis biologically incompatible with the intended recipient.\nTwo alternative donation practices have developed to mitigate these problems.\nIn a Living Donor/Deceased Donor (\xe2\x80\x9cLDDD\xe2\x80\x9d) Exchange, a living donor donates a\nkidney to an unknown, compatible recipient on the list for a deceased donor. The\nliving donor\xe2\x80\x99s intended (but incompatible) recipient receives in turn some priority\non the deceased-donor waiting list, and this priority may significantly shorten his\nwaiting time. In a Paired Exchange, an organ procurement and transplantation\nnetwork matches two or more incompatible donor/recipient pairs where each\nliving donor is compatible with another living donor\xe2\x80\x99s intended recipient. Hospitals have performed a number of transplants involving Paired Exchanges. See, e.g.,\nSusan Levine, Hopkins Celebrates Quintuple Transplant, Wash. Post, Nov. 21,\n2006, at A21. You seek our views primarily so that the Secretary of Health and\nHuman Services may know whether section 301 imposes a barrier to his taking\ncertain actions to encourage these practices.\n\n40\n\n\x0cLegality of Alternative Organ Donation Practices Under 42 U.S.C. \xc2\xa7 274e\n\nWhen a living donor simply gives the gift of a kidney to his intended recipient,\nhe receives in return only the satisfaction of helping that recipient. Although a\nknowing \xe2\x80\x9ctransfer\xe2\x80\x9d of a \xe2\x80\x9chuman organ . . . for use in human transplantation\xe2\x80\x9d has\noccurred, the lack of any exchange eliminates any question of the transfer\xe2\x80\x99s being\n\xe2\x80\x9cfor valuable consideration.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 274e(a). But when a donor transfers the\nkidney through an LDDD or Paired Exchange to be implanted into someone else,\nthe donor does so in exchange for a benefit to his intended recipient as a third\nparty. The intended recipient either receives from a network advancement on the\nwaiting list for a cadaveric kidney or receives a kidney from another living donor.\nThus, the question arises whether either of these donative practices involves a\ntransfer for \xe2\x80\x9cvaluable consideration\xe2\x80\x9d under section 301.\nII.\nThe term \xe2\x80\x9cconsideration\xe2\x80\x9d has deep roots in the common law of contracts and a\nfairly established meaning, but the meaning of the term \xe2\x80\x9cvaluable consideration\xe2\x80\x9d is\nless clear. Drawing on the available sources of guidance, however, we conclude\nthat the latter term as used in section 301 does not apply to an LDDD Exchange or\na Paired Exchange, because neither involves the buying or selling of a kidney or\notherwise commercializes the transfer of kidneys. 1\nSection 301 does not define \xe2\x80\x9cvaluable consideration,\xe2\x80\x9d but it and a related provision in the Act provide some initial guidance. Section 301 lists certain acts that do\nnot involve \xe2\x80\x9cvaluable consideration\xe2\x80\x9d: \xe2\x80\x9cThe term \xe2\x80\x98valuable consideration\xe2\x80\x99 does not\ninclude the reasonable payments associated with the removal, transportation,\nimplantation, processing, preservation, quality control, and storage of a human\norgan or the expenses of travel, housing, and lost wages incurred by the donor of a\nhuman organ in connection with the donation of the organ.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 274e(c)(2) (emphases added). These exclusions address types of \xe2\x80\x9cpayments\xe2\x80\x9d and\n\xe2\x80\x9cexpenses\xe2\x80\x9d that may otherwise fall within the term \xe2\x80\x9cvaluable consideration\xe2\x80\x9d on the\ntheory that they involve monetary benefits or at least a monetary transfer. Any\nbenefits received in the LDDD and Paired Exchanges, on the other hand, are not\nmonetary or otherwise pecuniary. To the extent that Congress concluded that\nexclusions from the prohibition on transfers for \xe2\x80\x9cvaluable consideration\xe2\x80\x9d were\nnecessary only for the specified monetary payments and reimbursements, the lack\nin section 301 of a comparable exclusion for non-monetary benefits may suggest\nthat non-monetary exchanges such as LDDD and Paired Exchanges do not involve\nvaluable consideration.\nThe title that Congress affixed to section 301 supports such an interpretation. It\nis established that \xe2\x80\x9cthe title of a statute or section can aid in resolving an ambiguity\n\n1\nIn considering this question, we have benefited from the views of your office as well as those of\nthe Department of Justice\xe2\x80\x99s Criminal Division. Our conclusion is consistent with the views of both.\n\n41\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nin the legislation\xe2\x80\x99s text.\xe2\x80\x9d INS v. Nat\xe2\x80\x99l Ctr. for Immigrants\xe2\x80\x99 Rights, 502 U.S. 183,\n189 (1991) (concluding that the term \xe2\x80\x9cemployment\xe2\x80\x9d in statutory text referred to\n\xe2\x80\x9cunauthorized employment,\xe2\x80\x9d in accordance with heading of section). Here,\nalthough the title does not expressly address \xe2\x80\x9cvaluable consideration,\xe2\x80\x9d it does\ndescribe section 301 as involving a \xe2\x80\x9c[p]rohibition of organ purchases.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 274e. Reading the statutory text in light of this title suggests that the vague\nphrase \xe2\x80\x9cvaluable consideration\xe2\x80\x9d addresses organ transfers that could be considered\nto involve a \xe2\x80\x9cpurchase[],\xe2\x80\x9d rather than all donations that may involve some\nexchange.\nIn addition, section 301 applies only \xe2\x80\x9cif the transfer affects interstate commerce.\xe2\x80\x9d Apart from the distinct question whether a transfer that did involve\nvaluable consideration would satisfy this requirement, the requirement indicates\nthat section 301 rests on Congress\xe2\x80\x99s power to \xe2\x80\x9cregulate Commerce . . . among the\nseveral States.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 8, cl. 3. That foundation further suggests that\n\xe2\x80\x9cvaluable consideration\xe2\x80\x9d involves some sort of commercial transaction. See United\nStates v. Lopez, 514 U.S. 549, 561 (1995) (finding criminal statute not authorized\nby this power, because it had \xe2\x80\x9cnothing to do with \xe2\x80\x98commerce\xe2\x80\x99 or any sort of\neconomic enterprise, however broadly one might define those terms\xe2\x80\x9d); cf.\nGonzales v. Raich, 545 U.S. 1, 25 (2005) (\xe2\x80\x9cUnlike those at issue in Lopez and\nMorrison, the activities regulated by the [Controlled Substances Act] are quintessentially economic. . . . [It] regulates the production, distribution, and consumption\nof commodities for which there is an established, and lucrative, interstate market.\xe2\x80\x9d); Perry v. St. Francis Hosp. & Med. Ctr., 886 F. Supp. 1551, 1563\xe2\x80\x9364\n(D. Kan. 1995) (\xe2\x80\x9cFor whatever reason, . . . society presently rejects the commercialization of human organs . . . and tolerates only an altruistic system of voluntary\ndonation.\xe2\x80\x9d).\nAs a further, albeit less direct, indication, the Act in another section gives certain duties to an organ procurement and transplantation network established by the\nSecretary. The network has a duty to \xe2\x80\x9cwork actively to increase the supply of\ndonated organs.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 274(b)(2)(K) (2000). One should seek to interpret\nthe provisions of an act in harmony with one another; here, that rule of interpretation indicates that this statutory mandate to increase the supply of donated organs\ncan illuminate the statute\xe2\x80\x99s unclear phrase \xe2\x80\x9cvaluable consideration.\xe2\x80\x9d In particular,\nsection 301 should be read to allow creative practices that \xe2\x80\x9cincrease the supply of\ndonated organs,\xe2\x80\x9d id., but do not involve buying, selling, or otherwise commercializing the transfer of organs. Both of the forms of exchange at issue enable\nsomeone who desires simply to donate his kidney to a family member or another\nspecific individual, but is unable to do so directly due to incompatibility, to benefit\nthat individual by other means. By donating his kidney to someone other than his\nintended recipient, the donor does receive something in exchange, but not a\npayment, financial gain, or direct personal benefit; rather, he receives an increased\nopportunity for his intended recipient to obtain a compatible kidney. These\n\n42\n\n\x0cLegality of Alternative Organ Donation Practices Under 42 U.S.C. \xc2\xa7 274e\n\narrangements may fairly be described as enabling donations rather than as\ntransfers for \xe2\x80\x9cvaluable consideration.\xe2\x80\x9d 2\nSome other references to \xe2\x80\x9cvaluable consideration\xe2\x80\x9d in the United States Code\nreinforce these indications from the Act (while the remainder of the references are\ninconclusive). The most relevant reference tracks section 301 by making it\n\xe2\x80\x9cunlawful for any person to knowingly acquire, receive, or otherwise transfer any\nhuman fetal tissue for valuable consideration if the transfer affects interstate\ncommerce.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 289g-2(a) (2000). The title\xe2\x80\x93\xe2\x80\x93\xe2\x80\x9cPurchase of tissue\xe2\x80\x9d\xe2\x80\x93\xe2\x80\x93 also\nparallels section 301. It is an accepted rule that \xe2\x80\x9cwhen Congress uses the same\nlanguage in two statutes having similar purposes, particularly when one is enacted\nshortly after the other, it is appropriate to presume that Congress intended that text\nto have the same meaning in both statutes.\xe2\x80\x9d Smith v. City of Jackson, 544 U.S.\n228, 233 (2005). The prohibition on the purchase of fetal tissue was enacted nine\nyears after NOTA, see National Institutes of Health Revitalization Act, Pub. L.\nNo. 103-43, \xc2\xa7 112, 107 Stat. 122, 131 (1993), and is codified with NOTA as part\nof the Public Health Service Act, 42 U.S.C. \xc2\xa7\xc2\xa7 201\xe2\x80\x93300gg-92 (2000). Thus, the\npenalty for violating the prohibition is illuminating: a \xe2\x80\x9cfine . . . in an amount not\nless than twice the amount of the valuable consideration received.\xe2\x80\x9d Id. \xc2\xa7 289g2(c)(2). The requirement for calculating the fine presumes that the \xe2\x80\x9cvaluable\nconsideration\xe2\x80\x9d is monetary or at least has a readily measurable pecuniary value. It\nis reasonable to apply that same meaning to the identical term in section 301, and\n\xe2\x80\x9cvaluable consideration\xe2\x80\x9d so understood would not include the two donative\npractices at issue. 3\nA further indication of the meaning of \xe2\x80\x9cvaluable consideration\xe2\x80\x9d in section 301\nis usage in similar contexts in contemporaneous state laws. A California law\nenacted in 1984, the same year as NOTA, makes it \xe2\x80\x9cunlawful for any person to\nknowingly acquire, receive, sell, promote the transfer of, or otherwise transfer any\n2\n\nThe Act\xe2\x80\x99s legislative history does not directly suggest a meaning of \xe2\x80\x9cvaluable consideration\xe2\x80\x9d but\nis consistent with the above indications and interpretation. The Senate Report states that the bill\n\xe2\x80\x9cprohibits the interstate buying and selling of human organs for transplantation\xe2\x80\x9d and \xe2\x80\x9cis directed at\npreventing the for-profit marketing of kidneys and other organs.\xe2\x80\x9d S. Rep. No. 98-382, at 2, 4, reprinted\nin 1984 U.S.C.C.A.N. 3975, 3976, 3978. It adds that \xe2\x80\x9cindividuals or organizations should not profit by\nthe sale of human organs\xe2\x80\x9d and that \xe2\x80\x9chuman body parts should not be viewed as commodities.\xe2\x80\x9d Id. at\n16\xe2\x80\x9317, 1984 U.S.C.C.A.N. at 3982. The House Conference Report explains that the final bill \xe2\x80\x9cintends\nto make the buying and selling of human organs unlawful.\xe2\x80\x9d H.R. Conf. Rep. No. 98-1127, at 16,\nreprinted in 1984 U.S.C.C.A.N. 3989, 3992. The legislative history does not suggest that any member\nof Congress understood the bill as addressing non-monetary or otherwise non-commercial transfers.\n3\nSeveral other federal statutes use \xe2\x80\x9cvaluable consideration\xe2\x80\x9d in different contexts and without\ndefining it or otherwise clearly indicating its meaning, although they seem to suggest some sort of\ncommercial transaction. See, e.g., 15 U.S.C. \xc2\xa7 1060 (2000) (protecting \xe2\x80\x9csubsequent purchaser [of a\ntrademark] for valuable consideration\xe2\x80\x9d); 31 U.S.C. \xc2\xa7 3125(a) (2000) (defining \xe2\x80\x9cobligation\xe2\x80\x9d to mean \xe2\x80\x9ca\ndirect obligation of the United States Government issued under law for valuable consideration,\nincluding bonds, notes, certificates of indebtedness, Treasury bills, and interim certificates\xe2\x80\x9d); 47 U.S.C.\n\xc2\xa7 338(e) (2000) (making it unlawful for a satellite carrier to \xe2\x80\x9caccept or request monetary payment or\nother valuable consideration\xe2\x80\x9d for certain actions).\n\n43\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nhuman organ, for purposes of transplantation, for valuable consideration.\xe2\x80\x9d Cal.\nPenal Code \xc2\xa7 367f(a) (2005). That statute defines \xe2\x80\x9cvaluable consideration\xe2\x80\x9d to\nmean \xe2\x80\x9cfinancial gain or advantage.\xe2\x80\x9d Id. \xc2\xa7 367f(c)(2). An essentially identical\nSouth Dakota prohibition enacted in 1992 likewise defines \xe2\x80\x9cvaluable consideration\xe2\x80\x9d to mean \xe2\x80\x9cfinancial gain or advantage.\xe2\x80\x9d See S.D. Codified Laws \xc2\xa7\xc2\xa7 34-26-43\n(definition), 34-26-44 (prohibition) (2005). And the Uniform Anatomical Gift Act,\nwhile not defining \xe2\x80\x9cvaluable consideration,\xe2\x80\x9d does provide that \xe2\x80\x9c[a] person may not\nknowingly, for valuable consideration, purchase or sell a part for transplantation\nor therapy, if the removal of the part is intended to occur after the death of the\ndecedent.\xe2\x80\x9d Id. \xc2\xa7 10(a) (1987) (emphasis added). (All three of these sources also\nhave exclusions for reasonable payments similar to the exclusions in section 301.)\nThis usage also indicates that \xe2\x80\x9cvaluable consideration,\xe2\x80\x9d at least as applied to organ\ndonations, involves some sort of buying and selling, or otherwise commercial\ntransfer, of organs.\nIt also is appropriate, as suggested above, to look to the common law of contracts, because \xe2\x80\x9c[w]here Congress uses terms that have accumulated settled\nmeaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these\nterms.\xe2\x80\x9d NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981) (citation omitted).\nWith regard to mere \xe2\x80\x9cconsideration,\xe2\x80\x9d a broad range of promises and actions may\nsuffice, though even there the outer limits are hazy. Compare 2 William Blackstone, Commentaries *440 (5th ed. 1773) (\xe2\x80\x9c[I]n case of leases, always reserving a\nrent, though it be but a peppercorn [such] . . . considerations will, in the eyes of the\nlaw, convert the gift . . . into a contract.\xe2\x80\x9d), with Restatement (Second) of Contracts\n\xc2\xa7 79 cmt. d (1979) (\xe2\x80\x9cDisparity in value, with or without other circumstances,\nsometimes indicates that the purported consideration was not in fact bargained for\nbut was a mere formality or pretense.\xe2\x80\x9d). With regard to \xe2\x80\x9cvaluable consideration,\xe2\x80\x9d\nhowever, there is much less of a \xe2\x80\x9csettled meaning.\xe2\x80\x9d The term is rarely defined, and\nits apparent meaning has varied over time and among jurisdictions. It also is\ndifficult to determine how it differs from mere \xe2\x80\x9cconsideration,\xe2\x80\x9d even though,\nunder normal rules of interpretation, one would expect the additional word to have\nsome meaning. In addition, the definitions indicated by various authorities are not\nspecific to the context of organ transfers. Nevertheless, the common law does at\nleast allow for the reading of section 301 that we have derived from relevant\nstatutory usage; it certainly does not foreclose it.\nBlack\xe2\x80\x99s Law Dictionary defines \xe2\x80\x9cconsideration\xe2\x80\x9d generally as \xe2\x80\x9c[s]omething\n(such as an act, a forbearance, or a return promise) bargained for and received by a\npromisor from a promisee; that which motivates a person to do something, esp. to\nengage in a legal act.\xe2\x80\x9d Id. at 324 (8th ed. 2004). It then defines \xe2\x80\x9cvaluable consideration\xe2\x80\x9d as \xe2\x80\x9c[c]onsideration that is valid under the law; consideration that either\nconfers a pecuniarily measurable benefit on one party or imposes a pecuniarily\nmeasurable detriment on the other.\xe2\x80\x9d Id. at 326 (emphases added). This latter\ndefinition dates to the 1999 edition, which was a significant update and revision.\n\n44\n\n\x0cLegality of Alternative Organ Donation Practices Under 42 U.S.C. \xc2\xa7 274e\n\nId. at 302 (7th ed. 1999). The definition in the edition current when NOTA was\nenacted had not required \xe2\x80\x9cpecuniarily measurable\xe2\x80\x9d consideration:\nA class of consideration upon which a promise may be founded,\nwhich entitles the promisee to enforce his claim against an unwilling\npromisor. Some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. . . . It need not be translatable into\ndollars and cents, but is sufficient if it consists of performance, or\npromise thereof, which promisor treats and considers of value to\nhim.\nId. at 1390 (5th ed. 1979) (emphasis added). (This edition did, however, define\n\xe2\x80\x9cvaluable\xe2\x80\x9d to mean \xe2\x80\x9c[o]f financial or market value; commanding or worth a good\nprice; of considerable worth in any respect, whether monetary or intrinsic.\xe2\x80\x9d Id.)\nUnder this definition, a kidney made available to a third party in an LDDD or\nPaired Exchange could be viewed as a \xe2\x80\x9cbenefit\xe2\x80\x9d \xe2\x80\x9cof value to\xe2\x80\x9d the donor of a\nkidney; in turn, the network in an LDDD Exchange and the complementary donor\nin a Paired Exchange could be viewed as undertaking a \xe2\x80\x9cresponsibility\xe2\x80\x9d toward the\nintended recipient.\nThe case law is similarly inconclusive as to whether \xe2\x80\x9cvaluable consideration\xe2\x80\x9d\nnecessarily involves a pecuniary element, though it does suggest that valuable\nconsideration typically involves consideration that can be measured in monetary\nterms. In Prewit v. Wilson, 103 U.S. 22 (1881), the Supreme Court quoted Sir\nEdward Coke for the proposition that \xe2\x80\x9c[m]arriage is to be ranked among the\nvaluable considerations, yet it is distinguishable from most of these in not being\nreducible to a value which can be expressed in dollars and cents.\xe2\x80\x9d Id. at 24\n(citation omitted). Other authority also indicates that \xe2\x80\x9cvaluable\xe2\x80\x9d generally refers to\na pecuniary value. See, e.g., Nelson v. Brown, 51 So. 360, 363 (Ala. 1910)\n(marriage \xe2\x80\x9cis valuable in a way which must be differentiated from that valuable\nconsideration which will support a contract in that ordinarily the word \xe2\x80\x98valuable\xe2\x80\x99\nsignifies that the consideration so described is pecuniary, or convertible into\nmoney\xe2\x80\x9d); In re Haugh\xe2\x80\x99s Estate, 12 Ohio Supp. 57, 1943 WL 3216, at *3 (Ohio\nProb. 1943) (quoting digest for the proposition that \xe2\x80\x9c[m]arriage, however, is\ndistinguishable from other valuable consideration in that it is not capable of being\nreduced to a value which can be expressed in dollars and cents,\xe2\x80\x9d but noting that\n\xe2\x80\x9can antenuptial contract does have certain very valuable considerations which can\nbe reduced to dollars and cents\xe2\x80\x9d). In Stanley v. Schwalby, 162 U.S. 255 (1896),\nhowever, the Court concluded that the promise to establish a military headquarters\non particular land was valuable consideration for a city\xe2\x80\x99s conveyance of the land to\nthe United States, as \xe2\x80\x9c[a] valuable consideration may be other than the actual\npayment of money, and may consist of acts to be done after the conveyance.\xe2\x80\x9d The\nCourt explained that \xe2\x80\x9c[t]he advantage enuring to the city of San Antonio from the\n\n45\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nestablishment of the military headquarters there was clearly a valuable consideration for the deed of the city to the United States,\xe2\x80\x9d but did not discuss how readily\nthat promised act could be converted into a pecuniary value to the city. Id. at 276.\nThus, the common law understanding of \xe2\x80\x9cvaluable consideration\xe2\x80\x9d either is\ninconclusive, leaving open the meaning we derive from statutory sources, or tends\nto confirm that meaning by suggesting that consideration, to be \xe2\x80\x9cvaluable,\xe2\x80\x9d should\nbe pecuniary, readily convertible into monetary value. There is no doubt a sense in\nwhich any act or thing could be given some value in dollars and cents. But the\nthird-party benefits received under the donative practices at issue here are not\ncommonly or readily so measured, as far as we are aware.\nFinally, notwithstanding the above indications of the meaning of \xe2\x80\x9cvaluable\nconsideration,\xe2\x80\x9d the scope of the phrase does remain open to some question. Given\nthat section 301 is a criminal statute, it is therefore appropriate to apply the rule of\nlenity in favor of a narrower reading, and thus to understand \xe2\x80\x9cvaluable consideration\xe2\x80\x9d in section 301 of the Act as referring to the buying and selling of organs for\nmonetary gain or to organ exchanges that are otherwise commercial. See, e.g.,\nLeocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (\xe2\x80\x9cEven if [the relevant statute]\nlacked clarity on this point, we would be constrained to interpret any ambiguity in\nthe statute in petitioner\xe2\x80\x99s favor.\xe2\x80\x9d). As the Supreme Court has stressed: \xe2\x80\x9c[W]hen\nchoice has to be made between two readings of what conduct Congress has made a\ncrime, it is appropriate, before we choose the harsher alternative, to require that\nCongress should have spoken in language that is clear and definite.\xe2\x80\x9d Dowling v.\nUnited States, 473 U.S. 207, 214 (1985) (citations and internal quotations\nomitted). Setting aside the strong circumstantial evidence of meaning discussed\nabove, it is certainly true, at a minimum, that section 301 does not \xe2\x80\x9cclear[ly] and\ndefinite[ly]\xe2\x80\x9d encompass LDDD and Paired Exchanges, as distinct from \xe2\x80\x9cpurchases\xe2\x80\x9d or other transfers for a profit.\nFor all of the above reasons, the donative practices you have described do not\nviolate section 301.\nC. KEVIN MARSHALL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n46\n\n\x0c'