b'September 26, 1979\n\n79-71\n\nMEMORANDUM OPINION FOR THE\nASSISTANT TO THE PRESIDENT FOR\nDOMESTIC AFFAIRS AND POLICY\nInterstate Commerce Commission\xe2\x80\x94Directed Rail\nCarrier Service\xe2\x80\x94Back Pay\xe2\x80\x9449 U.S.C. \xc2\xa7 11125\n(Supp. n , 1978)\n\nThis confirms my oral advice that it is our opinion that the Interstate\nCommerce Commission might determine that it was reasonable and\nnecessary for a carrier, providing service over The Rock Island routes pur\xc2\xad\nsuant to a directed service order, to pay back wages owing to The Rock\nIsland employees from The Rock Island in order to bring those employees\nback to work for the directed carrier. We understand that The Rock Island\nowes, but is presently unable to pay, back wages to its employees for work\nperformed during August. Apparently the employees have taken the posi\xc2\xad\ntion that they will not return to work for a directed carrier or anyone else\nuntil back wages have been paid.\nSection 11125(b)(3), 49 U.S.C. (Supp. II, 1978) specifically provides\nthat \xe2\x80\x9c A directed carrier is not responsible, because o f the direction o f the\nCommission, for the debts o f the other carrier.\xe2\x80\x9d Although this provision\nexpressly relieves the directed carrier o f any obligation to assume existing\ndebts o f the defaulting carrier, in our view it does not preclude a deter\xc2\xad\nmination that assumption o f an existing debt is a permissible means of\nassuring the resumption or continuation o f service.\nThe provision protects the directed carrier from suits by creditors o f the\nnonoperating carrier; the directed carrier does not become liable for a\ndefaulting carrier\xe2\x80\x99s debts by virtue o f the Commission\xe2\x80\x99s directed service\norder. The provision, however, does not prohibit the directed carrier from\npaying an existing debt o f the nonoperating carrier if such payment is re\xc2\xad\nquired to enable the directed carrier to provide the service ordered by the\nCommission. The language o f subsection (b)(3) quoted above is not a\nlimitation on the payment by the directed carrier o f the railroad\xe2\x80\x99s existing\ndebts. However, the reimbursement provision, subsection (b)(5), is a\nlimitation on such payments.\n379\n\n\x0cT hat subsection requires a finding by the Commission that an expense\nincurred by the directed carrier was \xe2\x80\x9c incurred in or attributable to the\nhandling, routing, and moving the traffic over the lines o f the other carrier\nfor the period during which the action o f the Commission is effective\xe2\x80\x9d\nbefore it can be included for reimbursement by the Governm ent. The\nCommission must find that the payment here was necessary to move traf\xc2\xad\nfic over The Rock Island line before it can consider the expenses incurred\nto be reimbursable.\nIt is im portant to note that The Rock Island\xe2\x80\x99s financial posture will not\nbe affected by the directed carrier\xe2\x80\x99s payment o f back wages; the directed\ncarrier simply will be substituted for the several employees as claimants\nagainst The Rock Island for the back wages.\nThe directed carrier would advance the back wages to the employees in\nreturn for the employees\xe2\x80\x99 assignment to the directed carrier o f their indi\xc2\xad\nvidual wage claims against The Rock Island. The directed carrier, as\nassignee, would then be in a position to recover these payments from the\ntrustee in bankruptcy for The Rock Island. Claims for wages are entitled\nto priority in a railroad reorganization.\nThe Commission, in our view, would be entitled to find that the directed\ncarrier\xe2\x80\x99s costs associated with advancing the back pay to the employees,\nand recovering the wage claims from The Rock Island, were necessary and\nreasonable expenses in the com putation o f Governm ent reimbursement to\nthe directed carrier under 49 U .S.C . 11125(b)(5) (Supp. II, 1978). Should\nthe directed carrier be unable to recover from The Rock Island the full\nam ount o f the back wage payments, the shortfall could also be reasonably\nincluded in the directed carrier\xe2\x80\x99s expenses, again assuming that the Com\xc2\xad\nmission determines that the paym ent o f back wages was a necessary ex\xc2\xad\npense \xe2\x80\x9c incurred in o r attributable to * *" * moving the traffic over [The\nRock Island] lines\xe2\x80\x9d during the period o f the directed service order.\nIt should be pointed out that the Commission in its regulations issued\nunder \xc2\xa7 11125 has provided that, in the event a directed carrier does not\nneed all the employees o f the nonoperating carrier to provide the directed\nservice, the cost o f term inating the unneeded employees is an obligation of\nthe nonoperating carrier and is not the responsibility o f the directed car\xc2\xad\nrier. Ex Parte N o. 293 (Sub No. 3), Implementation o f P .L . 93-236, 248\nI.C .C . 251, 273 (1975). These regulations on their face do not foreclose a\ndeterm ination by the Commission that a directed carrier in the exercise of\nsound business judgm ent might conclude that the payment o f the nonop\xc2\xad\nerating carriers, obligations to employees incurred before the period of\ndirected service was, in fact, necessary to assure the resumption o f the\nordered service and therefore was attributable to moving traffic over The\nRock Island lines.\nJo hn M . Harm on\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n380\n\n\x0c'


b'Swearing in of a United States Attorney\nA U nited States S enator is not authonzed by federal law to adm inister the oath of office to a United\nS tates A ttorney, though he may adm inister a cerem onial oath.\n\nAugust 3, 1982\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nThis responds to your inquiry as to whether a United States Senator (in this\ninstance, a Senator from Georgia) can administer the oath of office to a United\nStates Attorney.\nAccording to 5 U .S.C . \xc2\xa7 2903(a) (1976) the oath of office required by Article\nVI, clause 3 of the Constitution and 5 U.S.C. \xc2\xa7 3301 \xe2\x80\x9c may be administered by an\nindividual authorized by the laws of the United States or by local law to\nadminister oaths in the State, District, or territory or possession of the United\nStates where the oath is administered.\xe2\x80\x9d In addition, a department head may,\npursuant to 5 U .S.C . \xc2\xa7 2903(b)(1), authorize in writing any employee in his\ndepartment to administer the oath of office to an employee of his department.\nThe laws of the United States do not generally authorize Senators to administer\noaths.1Hence, unless a Senator is authorized by state law2 to administer oaths he\ncould not validly swear in a United States Attorney. This, however, does not mean\nthat the Senator may not administer a ceremonial oath of office to the United\nStates Attorney, provided that the latter actually takes the oath before a person\nauthorized to administer it, such as a notary or a person in the United States\nAttorney\xe2\x80\x99s office authorized in writing by the Attorney General, pursuant to 5\nU.S.C. \xc2\xa7 2903(b)(1), to administer the oath. This procedure (a ceremonial oath\nwith a separate, private formal oath) is apparently quite common and is a practice\nwhich has been followed for many years.\nT\n\nheodore\n\nB.\n\nO\n\nlson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n1 Senators may administer oaths with respect to matters within the jurisdiction of the Senate, in particular to\nwitnesses before their committees. 2 U S C \xc2\xa7 \xc2\xa7 2 3 . 191.\n2 A necessarily limited perusal o f the Georgia Code did not disclose any power of a Senator to administer oaths\n\n502\n\n\x0c'


b'Application of 18 U.S.C. \xc2\xa7\xc2\xa7 203 and 205 to Federal\nEmployees Detailed to State and Local Governments\nE n v iro n m e n ta l P ro te c tio n A g e n c y (E P A ) is c o rre c t in its v iew th at d etailin g its em p lo y \xc2\xad\nees to im p o rta n t positions in sta te agencies, th e d u ties o f w h ic h m ay req u ire them to\nrep re sen t th e sta te befo re th e E P A , is in teg ral to th e su b stan tiv e en v iro n m en tal p ro \xc2\xad\ng ram s th at E P A adm inisters.\nS ectio n s 203 and 205 o f T itle 18 w e re n ot in ten d ed to lim it su b stan tiv ely th e uses federal\nag en cies m ay m ake o f th e ir em ployees, an d a federal em p lo y ee is p erfo rm in g "official\nd u tie s,\xe2\x80\x9d w ith in th e m eaning o f th o se p rovisions, w h e n in v o lv ed in a task th at is integral\nto a su b stan tiv e federal p ro g ram .\nS ectio n s 203 an d 205 d o n ot p ro h ib it E P A em p lo y ees, d e ta ile d to a sta te ag en cy p u rsu an t\nto th e In te rg o v e rn m e n ta l P erso n n el A c t, from rep re sen tin g th at ag e n c y b efo re th e\nE P A in th e c o u rse o f th e ir assigned duties.\n\nMarch 17, 1980\nMEM ORANDUM OPINION FOR TH E G E N ER A L COUNSEL,\nEN VIRO N M EN TA L PROTECTION AGENCY\nThis responds to your request that we reconsider the opinion, ex\xc2\xad\npressed in former Assistant Attorney General Rehnquist\xe2\x80\x99s letter of\nMarch 12, 1971, about the application of two conflict of interest statutes\nto federal employees detailed to states under the Intergovernmental\nPersonnel Act, 5 U.S.C. \xc2\xa7\xc2\xa7 3371-3376. Those two conflict of interest\nstatutes, 18 U.S.C. \xc2\xa7\xc2\xa7203 and 205, prohibit Executive Branch employ\xc2\xad\nees from representing any party other than the United States before any\nfederal agency in connection with a matter in which the United States\nhas an interest.1 Neither of these statutes applies, however, if the\nemployee is acting in \xe2\x80\x9cthe proper discharge of his official duties.\xe2\x80\x9d In his\n1971 letter, former Assistant Attorney General Rehnquist said that\nfederal employees detailed to states under the Intergovernmental Per\xc2\xad\nsonnel Act were not acting in the proper discharge of their official\nduties within the meaning of \xc2\xa7\xc2\xa7 203 and 205 if they represented those\nstates before a federal agency.\n1 18 U.S.C. \xc2\xa7 203 provides in pari:\n(a) W hoever, o th erw ise than as provided by law for the proper discharge o f official\nduties, directly o r indirectly receives o r agrees to receive, o r asks, dem ands, solicits, or\nseeks, any com pensation for any services rendered o r to be rendered either by him self\no r a n o th er\xe2\x80\x94\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nC ontinued\n\n498\n\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\n\x0cThe Environmental Protection Agency (EPA) details employees to\nstate and local governments under the authority of the Intergovernmen\xc2\xad\ntal Personnel Act and several environmental statutes. You specifically\nmention the Clean Air Act, 42 U.S.C. \xc2\xa7\xc2\xa77401-7642 (Supp. I ll 1979),\nthe Clean Water Act, 33 U.S.C. \xc2\xa7\xc2\xa7 1251-1376, the Safe Drinking Water\nAct, 42 U.S.C. \xc2\xa7\xc2\xa7 300f to 300j-9, the Resource Conservation and Re\xc2\xad\ncovery Act, 42 U.S.C. \xc2\xa7\xc2\xa7 6901-6987, and the Federal Insecticide, Fun\xc2\xad\ngicide, and Rodenticide Act, 7 U.S.C. \xc2\xa7\xc2\xa7 136\xe2\x80\x94136y. The detailed em\xc2\xad\nployees are assigned to aid the states in carrying out their responsibil\xc2\xad\nities under these various environmental statutes. We understand that the\nemployees\xe2\x80\x99 duties are specified in agreements signed between EPA and\nthe state agencies, and in a briefing given to the employees.\nA federal employee can, while acting on behalf of another party,\nhave purely ministerial contacts with a federal agency without violating\n\xc2\xa7 203 or \xc2\xa7 205. See Memorandum Opinion for the Acting General\nCounsel, Nuclear Regulatory Commission, 2 Op. O.L.C. 313, 316-317\n(1978); Federal Personnel Manual, ch. 334, subch. l-9b, at 334-6 & n.l\n(1973). But if the employee has any dealings with the government in an\nadversary context\xe2\x80\x94that is, any contacts about a matter in which the\nGovernment and the party on whose behalf the employee is acting\nhave inconsistent or potentially inconsistent interests\xe2\x80\x94then the em\xc2\xad\nployee is representing that party and, unless otherwise excepted, is\n(2) at a time w hen he is an officer o r em ployee o f the U nited States in the executive,\nlegislative, o r judicial branch o f the G overnm ent . . .\nin relation to any proceeding, application, request for a ruling or o ther determ ination,\ncontract, claim, controversy, charge, accusation, arrest, o r o th er particular m atter in\nwhich the U nited States is a party o r has a direct and substantial interest, before any\ndepartm ent, agency, court-m artial, officer, o r any civil, military, or naval commission,\n\xe2\x80\xa2\n\n*\n\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\n\xe2\x80\xa2\n\nShall be fined not m ore than $10,000 o r imprisoned for not more than tw o years or\nboth; and shall be incapable o f holding any office o f honor, trust, or profit under the\nUnited States.\n18 U.S.C. \xc2\xa7 205 provides, in part:\nW hoever, being an officer o r em ployee o f the United States in the executive,\nlegislative, o r judicial branch o f the G overnm ent o r in any agency o f ihe United\nStates, including the D istrict o f Columbia, otherw ise than in the proper discharge o f\nhis official duties\xe2\x80\x94\n\n(2) acts as agent o r attorney for anyone before any departm ent, agency, court,\ncourtm artial, officer, o r any civil, military, o r naval commission in connection w ith any\nproceeding, application, request for a ruling o r o th er determ ination, contract, claim,\ncontroversy, charge, accusation, arrest^ o r o th er particular m atter in w hich the U nited\nStates is a party o r has a direct and substantial interest\xe2\x80\x94\nShall be fined not m ore than $10,000 o r imprisoned for not m ore than tw o years, or\nboth.\nIt may appear at first glance that \xc2\xa7 203(a) proscribes all services rendered in connection w ith a\nproceeding before a federal agency, w hile \xc2\xa7 205 prohibits only acting \xe2\x80\x9cas agent o r attorney." But the\nD epartm ent o f Justice has consistently interpreted \xc2\xa7 203 to apply only to "services rendered . . . before\nany departm ent [or] ag en cy "\xe2\x80\x94that is, to representative activities com parable to acting as an agent or\nattorney. See M em orandum o f A ttorney G eneral R egarding C onflict o f Interest Provisions o f Public\nLaw 87-849, reprinted in 18 U.S.C. \xc2\xa7201 note at 1029 (1976); S. Rep. No. 2213, 87th C ong., 2d Sess.\n9-11 (1962); Perkins, The N ew Federal Conflict o f Interest Law, 76 H arv. L. Rev. 1113, 1144-45 (1963).\n\n499\n\n\x0cviolating \xc2\xa7\xc2\xa7 203 and 205. We advised you of this interpretation of\n\xc2\xa7\xc2\xa7 203 and 205. You replied that E PA \xe2\x80\x99s detailed employees cannot be\nconfined to ministerial contacts with EPA. You said that EPA \xe2\x80\x99s ability\nto cooperate with the states in the way Congress envisioned will be\nseriously impaired if detailed employees cannot represent states before\nthe EPA in contexts that are potentially adversary. You now ask us to\nreconsider the 1971 opinion and to say that such a detailed EPA\nemployee would be engaged in \xe2\x80\x9cthe proper discharge of official duties\xe2\x80\x9d\nand therefore may represent a state before the EPA.\nFor the reasons we state below, we accept your judgment that it is\nintegral to the statutory schemes established by Congress that detailed\nEPA employees be able to represent states, from time to time, in\ndealings with EPA. We believe that a federal employee performing a\ntask that is integral to the statutory scheme administered by the em\xc2\xad\nployee\xe2\x80\x99s agency is engaged in \xe2\x80\x9cthe proper discharge of his official\nduties\xe2\x80\x9d within the meaning of \xc2\xa7\xc2\xa7203 and 205. For these reasons, as\nlong as EPA employees detailed under the statutes you mention are\nperforming their assigned duties, \xc2\xa7\xc2\xa7 203 and 205 do not prohibit them\nfrom representing states in dealings with the EPA. A federal employee\ncan be assigned to a state under the Intergovernmental Personnel Act,\nhowever, whenever he will be performing \xe2\x80\x9cwork of mutual concern to\nhis agency and the State or local government that [the federal agency]\ndetermines will be beneficial to both.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3372 (a) (Supp. Ill\n1979). \xe2\x80\x9cWork of mutual concern\xe2\x80\x9d will not always be work integral to a\nsubstantive federal program. Thus we have no occasion to consider, at\nthis time, whether every federal employee detailed to another entity\nunder the Intergovernmental Personnel Act can represent that entity in\ndealings with the federal government.\nI. The Role of Detailed EPA Employees in\nImplementing Environmental Statutes\nWe agree with your judgment that detailing EPA employees to\nimportant positions in state agencies is integral to the substantive envi\xc2\xad\nronmental programs Congress enacted. These programs encourage, and\nrequire, EPA to provide technical assistance to the states. In approving\nthe Safe Drinking Water Act, for example, the House committee com\xc2\xad\nmented: \xe2\x80\x9c[I]t is abundantly clear that additional Federal assistance,\nresearch, and support is necessary in order to enable State and local\nefforts to provide safe water to be successful.\xe2\x80\x9d H.R. Rep. No. 1185, 93d\nCong., 2d Sess. 9 (1974). See also id. at 38; S. Rep. No. 1196, 91st\nCong., 2d Sess. 4 (1970) (Clean Air Act). In particular, Congress knew\nthat earlier environmental programs had foundered because state agen\xc2\xad\ncies lacked the expertise they needed to implement the programs effec\xc2\xad\ntively. H.R. Rep. No. 1146, 91st Cong., 2d Sess. 5 (1970); Stewart,\nPyram ids o f Sacrifice? Problems o f Federalism in M andating State Im ple\xc2\xad\n\n500\n\n\x0cmentation o f N ational Environmental Policy, 86 Yale L. J. 1196, 1201\n(1977). Each of the statutes you mentioned in your January 30 letter\nauthorizes the EPA to detail employees to provide this expertise. See 42\nU.S.C. \xc2\xa7 7601(b) (Clean Air Act); 33 U.S.C. \xc2\xa71361(0 (Clean Water\nAct); 42 U.S.C. \xc2\xa7 300j-9(c) (Safe Drinking Water Act); 42 U.S.C.\n\xc2\xa7 6981(c)(4) (Resource Conservation and Recovery Act); 7 U.S.C.\n\xc2\xa7 136u (Federal Insecticide, Fungicide, and Rodenticide Act). You have\ntold us that in EPA \xe2\x80\x99s judgment, Congress\xe2\x80\x99 intentions cannot be fulfilled\nunless detailed EPA employees occupy important positions in state\nagencies\xe2\x80\x94positions in which they will be involved in the central func\xc2\xad\ntions of those agencies. Congress did not expressly require EPA to\ndetail its employees to important positions in state agencies. But Con\xc2\xad\ngress directed EPA to provide technical assistance and, in framing the\nenvironmental laws administered by EPA, expressly or implicitly au\xc2\xad\nthorized detailing as one way of doing so. In view of these indications\nof Congress\xe2\x80\x99 intentions, we accept EPA \xe2\x80\x99s judgment that detailing em\xc2\xad\nployees to important positions in state agencies is integral to the success\nof the programs it administers.\nIn many programs, employees involved in the central functions of\nstate agencies might not have to deal with the federal government, or\nmight not have to deal with it in an adversary or representational\ncontext. EPA\xe2\x80\x99s programs, however, are not among these. One of the\ncentral functions of state agencies under federal environmental laws is\nto have close, ongoing, substantive contacts of a somewhat adversary\nnature with EPA. It is a commonplace, for example, that the environ\xc2\xad\nmental statutes you mention in your letter establish a \xe2\x80\x9cdelicate partner\xc2\xad\nship\xe2\x80\x9d between the EPA and state environmental agencies. See, Save the\nBay, Inc. v. Adm inistrator o f the EPA, 556 F.2d 1282, 1284 (5th Cir.\n1977) (Clean Water Act). The legislative history of the Safe Drinking\nWater Act describes it as \xe2\x80\x9ca cooperative effort in which the Federal\ngovernment assists, reinforces, and sets standards for the State and local\nefforts . . . [T]he Federal government must bear a shared responsibility\nwith State and local governments.\xe2\x80\x9d H.R. Rep. No. 1185, 93d Cong., 2d\nSess. 8, 9 (1974). Congress considered this partnership to be a central\nfeature of these statutes. See, e.g., H.R. Rep. No. 294, 95th Cong., 1st\nSess. 1 (1977) (Clean Air Act Amendments); S. Rep. No. 1196, 91st\nCong., 2d Sess. 4, 12, 21 (1970) (Clean Air Act); H.R. Rep. 1491, 94th\nCong., 2d Sess. 31 (1976) (Resource Conservation and Recovery Act)\n(suggesting that \xe2\x80\x9cfederal-state relationship\xe2\x80\x9d is the \xe2\x80\x9ckey\xe2\x80\x9d to Act); id. at\n5, 24-25, 30. The statutes themselves reveal the details of the relation\xc2\xad\nship between EPA and the states; unsurprisingly, continual substantive\ncontacts are a vital feature of it. Moreover, the statutes envision that\nEPA and the states will often have divergent interests, so their contacts\nwill necessarily be somewhat adversary.\n\n501\n\n\x0cUnder the Clean Water Act, for example, EPA initially has the\nauthority to issue the permits that a polluter must have before it\ndischarges effluents. 33 U.S.C. \xc2\xa7\xc2\xa7 1311(a), 1342(a). Once a state has\nestablished an overall permit program that meets federal standards, 33\nU.S.C. \xc2\xa7 1342(b), it can issue these permits itself. 33 U.S.C. \xc2\xa7 1342(e)(1).\nThe EPA, however, can veto individual state permits, 33 U.S.C.\n\xc2\xa7 1342(d), and can revoke the state\xe2\x80\x99s authority to issue permits if the\nstate program consistently fails to meet federal standards, 33 U.S.C.\n\xc2\xa7 1342(c)(3). As you note in your January 30 letter, Congress foresaw\nthat in administering this program the EPA and the state agencies\nwould have frequent substantive contacts of an adversary sort. See, e.g.,\nS. Rep. No. 414, 92d Cong., 1st Sess. 7-10 (1971).\nThe Resource Conservation and Recovery Act provides, in a\nroughly similar fashion, that a state may take over the administration of\nthe hazardous waste disposal program from the federal government,\nunless the EPA determines that the state program is inadequate. 42\nU.S.C. \xc2\xa7 6926(e). Congress established this relationship because it real\xc2\xad\nized that federal and state interests would not always coincide. See H.R.\nRep. No. 1491, 94th Cong., 2d Sess. 30 (1976). And Congress envi\xc2\xad\nsioned close and continual contacts between federal and state agencies.\nSee id. at 5. The Safe Drinking Water Act establishes a scheme that is\nsimilar in many respects to that of the Resource Conservation Act. See\n42 U.S.C. \xc2\xa7\xc2\xa7 300g-2, 300g-3. Congress thought that while \xe2\x80\x9ccooperation\nwill be the rule,\xe2\x80\x9d the EPA would act as a check on the state agencies;\nthe House committee attempted to specify the scope of EPA review.\nH.R. Rep. No. 1185, 93d Cong., 2d Sess. 2, 21 (1974). The Federal\nInsecticide, Fungicide, and Rodenticide Act provides for a relationship\nbetween the EPA and the states that somewhat resembles the Clean\nWater A ct\xe2\x80\x99s permit program. See 7 U.S.C. \xc2\xa7 136v. See also 7 U.S.C.\n\xc2\xa7 136p (in an emergency, EPA can exempt state agency from provisions\nof Act).\nOther aspects of these statutes also contemplate continual substantive\ncontacts between state and federal agencies. Under the Clean Water\nAct, states can establish water quality standards but EPA reviews them.\n33 U.S.C. \xc2\xa7 1313. State implementation plans under the Clean Air Act\nare also subject to EPA review and revision. 42 U.S.C. \xc2\xa7 7410. Again,\nCongress envisioned a somewhat adversary relationship. See H.R. Rep.\nNo. 294, 95th Cong., 1st Sess. 27 (1977); S. Rep. No. 1196, 91st Cong.,\n2d Sess. 21 (1970). Similarly, as your letters note, EPA can delegate to\nthe states its power under the Clean Water Act to make grants to local\ngovernments to construct waste treatment facilities. 33 U.S.C. \xc2\xa7\xc2\xa7 1281 \xe2\x80\x94\n1293(a). As you point out, the Act itself provides that \xe2\x80\x9c[i]t is the policy\nof Congress that the States manage the construction grant program.\xe2\x80\x9d 33\nU.S.C. \xc2\xa7 1251(b). But you have advised us that EPA must supervise the\n502\n\n\x0cstates to ensure that they are discharging their responsibilities under the\nprogram.\nCongress\xe2\x80\x99 reasons for establishing this sort of relationship between\nthe EPA and state governments lie deep in the history of environmental\nlegislation. For practical and legal reasons, state and local governments\nmust plan and implement many environmental programs. For example,\nefforts to combat pollution must be coordinated with traffic controls\nand land-use regulation. In those areas, the states\xe2\x80\x99 knowledge and au\xc2\xad\nthority predominate. See Stewart, supra, at 1201; Tripp, Tensions and\nConflicts in Federal Pollution Control and Water Resource Policy, 14\nHarv. J. Legis. 225, 253-57, 278-80 (1977). But for technical and politi\xc2\xad\ncal reasons, state governments have often been unable or unwilling to\nperform their tasks, effectively; the federal government must induce\nthem to do so. See, e.g., S. Rep. No. 414, 92d Cong., 1st Sess. 4-5\n(1971) (Clean Water Act); Stewart, supra, at 1201-02. Thus close and\nsomewhat adversary contacts between EPA and state environmental\nagencies are an essential, not an incidental, aspect of environmental\nlegislation. Detailing EPA employees to important positions in state\nagencies is integral to the programs created by that legislation. It\nfollows, from the close, ongoing, adversary relationship which those\nprograms establish between the federal and state agencies, that it is also\nintegral to the programs that detailed EPA employees be able to repre\xc2\xad\nsent the states in dealings with the EPA.\nII. \xe2\x80\x9cOfficial Duties\xe2\x80\x9d Under \xc2\xa7\xc2\xa7 203 and 205\nFor several reasons, we believe that federal employees are perform\xc2\xad\ning \xe2\x80\x9cofficial duties,\xe2\x80\x9d within the meaning of \xc2\xa7\xc2\xa7 203 and 205, when they\nare involved in tasks that are integral to a substantive federal program.\nThe legislative history of the \xe2\x80\x9cofficial duties\xe2\x80\x9d exception to \xc2\xa7\xc2\xa7 203 and\n205 is obscure, but the term \xe2\x80\x9cofficial\xe2\x80\x9d suggests that those statutes are\naimed primarily at actions taken by federal employees in their private\ncapacities. The House committee that studied the most recent amend\xc2\xad\nment to \xc2\xa7\xc2\xa7 203 and 205 said that they were designed to prevent any\n\xe2\x80\x9cconflict between private interests of a Government employee and his\nduties as an official,\xe2\x80\x9d and that the \xe2\x80\x9cevident reason\xe2\x80\x9d for the restriction\nnow found in \xc2\xa7 205 was to prevent employees \xe2\x80\x9cfrom using . . . influ\xc2\xad\nence in support of private causes.\xe2\x80\x9d H.R. Rep. No. 748, 87th Cong., 1st\nSess. 6, 21 (1961). The Senate committee referred to \xc2\xa7205 as a \xe2\x80\x9cbar\nagainst a Government employee\xe2\x80\x99s private represent itional activities.\xe2\x80\x9d S.\nRep. No. 2213, 87th Cong., 2d Sess. 11 (1962). See Perkins, The N ew\nFederal Conflict o f Interest Law, 76 Harv. L. Rev. 1113, 1143 (1963).2\n2\nA ctivities on behalf o f a state o r some o th e r unit o f governm ent can be \xe2\x80\x9c p rivate\xe2\x80\x9d if they are no\npart o f a federal em ployee\xe2\x80\x99s job. W e believe that detailed E P A em ployees\xe2\x80\x99 activities on behalf o f the\nstate agencies are not private, but that is true only because E PA has d irected the em ployees to engage\nC ontinued\n\n503\n\n\x0cMoreover, nothing in the background or legislative history of \xc2\xa7\xc2\xa7 203\nand 205 suggests that they were intended substantially to limit the uses\nfederal agencies may make of their employees. In this respect, they may\ncontrast with, for example, 18 U.S.C. \xc2\xa7208 (Supp. Ill 1979), which\nrestricts federal employees\xe2\x80\x99 participation in matters in which they have\na financial interest. The \xe2\x80\x9cofficial duties\xe2\x80\x9d exception in fact suggests that\nCongress did not intend to limit the ability of federal agencies to assign\ntheir employees to tasks that would involve their representing other\nparties. In general, had Congress wanted significantly to restrict the\nmanner in which an agency uses its employees, Congress is unlikely to\nhave chosen as its means a criminal statute, directed at the employees\nthemselves, and containing an exception for \xe2\x80\x9cthe proper discharge of\nofficial duties.\xe2\x80\x9d 3\nFor these reasons, we do not believe that \xc2\xa7\xc2\xa7 203 and 205 can be read\nto prohibit a federal agency from assigning its employees to tasks that\nare integral to the programs for which it is responsible, even if those\nemployees must, in the course of carrying out their assignments, repre\xc2\xad\nsent other parties before the federal government.4 As we have said, we\nin such activities. T h at acts are d o n e on behalf o f an o th er governm ent w ould not autom atically\nexem pt them from \xc2\xa7\xc2\xa7 203 and 205. In saying this, how ever, w e do not wish to foreclose the possibility\nthat actions done on behalf o f an o th er unit o f governm ent m ight, in som e circum stances, have a\ndifferent status under the conflict o f interest laws. This is an issue w e do not reach.\n3 Section 105 o f the Indian Self-D eterm ination and E ducation Assistance A ct, Pub. L. No. 93-638,\n88 Stat. 2208 (1975), perm its federal em ployees detailed to Indian tribes under the Intergovernm ental\nPersonnel A ct, 5 U.S.C. \xc2\xa7 337l(2)(c>, to act as agents o r attorneys on behalf o f such tribes, notw ith\xc2\xad\nstanding \xc2\xa7 205. Section 105(j) provides in part:\nA nything in sections 205 and 207 o f title 18 to the co n trary notw ithstanding, officers\nand em ployees o f the U nited States assigned to an Indian tribe as authorized under [the\nIntergovernm ental Personnel A ct] and form er officers and em ployees o f the U nited\nStates em ployed by Indian tribes m ay act as agents o r attorneys for o r appear on\nb eh alf o f such tribes in connection [w ith] any m atter pending before any departm ent,\nagency, court, o r commission, including any m atter in w hich the U nited States is a\nparty o r has a direct and substantial interest.\n25 U.S.C. \xc2\xa7450i(f). (Section 207 o f T itle 18 imposes certain restrictions on form er governm ent\nemployees* appearances before governm ent agencies.) It m ight be argued that C ongress\' exem pting\nthis class o f detailed em ployees from the prohibitions o f \xc2\xa7 205 implies that all o th e r detailed em ployees\nare subject to those prohibitions. F o r several reasons, how ever, w e d o not adopt that view.\nT h e exem ption was added, by th e H ouse C om m ittee on In terior and Insular Affairs, to a bill that\nhad passed the Senate. See H .R . Rep. No. 1600, 93d C ong., 2d Sess. 21 (1974). T h e H ouse com m ittee\ncom m ented simply that \xc2\xa7\xc2\xa7 205 and 207 \xe2\x80\x9c w ould be inappropriate to the circum stances o f \' the detailing\narrangem ents it was considering. Id. at 21. A pparently it did not consider the issue at length; for\nexam ple, it neglected to exem pt detailed em ployees from \xc2\xa7 203, an evident oversight. A pparently it\nw as most concerned w ith the exem ption from \xc2\xa7 207. See id. at 16-17. T h e C om m ittee on Interior and\nInsular Affairs also g ave no indication that it w as aw are o f o th e r program s involving detailed\nem ployees w hich m ight similarly claim to be ham pered by \xc2\xa7\xc2\xa7 203 and 205. T h e C om m ittee did not\nseem to be guided by any co h eren t o r principled conception o f the coverage o f the conflict o f interest\nlaw s o f the breadth o f the \xe2\x80\x9cofficial duties\xe2\x80\x9d exception.\nU nder these circum stances, w e cannot say that in enacting this exem ption. C ongress meant to\nexpress a considered view th at no o th e r tasks perform ed by detailed em ployees are \xe2\x80\x9cofficial duties"\nw ithin the meaning o f \xc2\xa7\xc2\xa7 203 and 205. It seems m ore likely that the H ouse C om m ittee was alerted to\nthe d an g er that \xc2\xa7 205 m ight perhaps interfere w ith its substantive program o f aiding Indian tribes and\nprudently acted to rem ove th e danger, w ithout considering the im plications o f its actions. Similarly,\nthere is no sign that w hen C ongress passed the A ct that it thought it was legislating about any subject\no th e r than Indians.\n4 W ith y our approval, w e have discussed this m atter w ith the O ffice o f G eneral Counsel at the\nO ffice o f Personnel M anagem ent. T h e O ffice o f G eneral Counsel concurs in o u r interpretation o f these\nContinued\n\n504\n\n\x0caccept your judgment that EPA employees detailed to important state\npositions are performing tasks integral to E PA \xe2\x80\x99s programs. Sections 203\nand 205 therefore do not prohibit such employees from representing the\nstate before the EPA in the course of their assigned duties.\nThere is an additional reason for concluding that the activities of\nEPA \xe2\x80\x99s detailed employees should not be circumscribed by \xc2\xa7\xc2\xa7 203 and\n205. The purpose of applying \xc2\xa7\xc2\xa7 203 and 205 to detailed EPA employ\xc2\xad\nees would be to prevent them from using, on behalf of the state to\nwhich they are detailed, whatever influence they have within the EPA.\nSee H.R. Rep. No. 748, 87th Cong., 1st Sess. 21 (1961). As we have\ndiscussed, however, environmental legislation places EPA and the\nstates in a \xe2\x80\x9cdelicate partnership.\xe2\x80\x9d Often Congress attempted to specify\nin some detail the extent to which EPA was to review the actions of\nthe state agencies. See, e.g., H.R. Rep. No. 1185, 93d Cong., 2d Sess. 21\n(1974) (Safe Drinking Water Act); H.R. Rep. No. 1491, 94th Cong., 2d\nSess. 24-25 (1976) (Resource Conservation and Recovery Act); compare\nH.R. Rep. No. 911, 92d Cong., 2d Sess. 127 (1972) (Clean Water Act)\nwith S. Rep. No. 414, 92d Cong., 1st Sess. 71 (1971) (Clean Water Act).\nIn framing environmental legislation, Congress established an elaborate\nrelationship between the federal and state agencies; we believe that\nquestions about the degree to which those agencies may properly influ\xc2\xad\nence each other should be resolved by examining the policies underly\xc2\xad\ning this relationship Congress has so carefully structured,5 instead of by\nresorting to conflict of interest statutes.\nFor these reasons, we believe that EPA employees detailed to state\nagencies under the statutes you mention may, in the course of perform\xc2\xad\ning their assigned duties, represent the states in dealings with the EPA.\nL arry A. H am m ond\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\nconflict o f interest statutes as they affect the operation of the Intergovernmental Personnel Act. It has\nadvised us that the applicable provisions of the Federal Personnel Manual, ch. 334, subch. I -9b, at\n334-6, will be revised to reflect our interpretation.\n5 It can be argued that the environmental statutes themselves restrict the informal influence that\nEPA may exert on state agencies. See Case Comment, Jurisdiction to Review Informal EPA Influence\nUpon State Decisionmaking under the Federal Water Pollution Control Act, 92 Harv. L. Rev. 1814\n(1979). Presumably, this would include influence exerted by exchanging or detailing employees. We of\ncourse express no opinion about the soundness of this view.\n\n505\n\n\x0c'


b"Contacts Between the Office of Management and Budget and\nExecutive Agencies Under Executive Order No. 12,291\nA gencies are not precluded from receiving, in the context o f inform al rulem aking, views\nor information outside the usual channels for public com m ent, notw ithstanding the ex\nparte contacts doctrine developed in the D .C. Circuit, and the Office o f M anagem ent\nand Budget (OM B) is under no duty to refrain from com m unicating w ith rulem aking\nagencies pursuant to its im plem entation o f Executive O rder No. 12,291.\nThe A dm inistrative P rocedure A c t\xe2\x80\x99s provisions for judicial review and public participa\xc2\xad\ntion in informal rulem aking m ay be construed to imply an agency obligation to disclose\ncom m unications from outside the agency, including com m unications w hich o c cu r after\nthe publication o f proposed rulem aking. T herefore, in order to reduce the danger o f\nreversal, such com m unication should be included in the adm inistrative file and the\nrecord for judicial review, at least to the extent that they are factual as opposed to\ndeliberative in nature.\nA rulem aking agency need not disclose substantive com m unications from O M B o r other\nfederal agencies w hich form p art o f its deliberative process; how ever, the deliberative\nprocess does not extend to the legal o r policy view s o f persons outside o f executive o r\nindependent agencies, even w hen they are transm itted by an agency acting as a conduit\nfor the third party.\n\nApril 24, 1981\nM EM ORANDUM OPIN IO N FO R T H E D IRECTO R,\nO FFIC E O F M A N A G EM EN T A N D BU DG ET\nYour Office has requested the views of this Office regarding the\nlegality of contacts which may occur between you and your staff and\nofficials of executive agencies in the implementation of Executive Order\nNo. 12,291, 3 C.F.R. 127 (1982) (Order). The Order generally requires\nthese agencies to maximize the benefits and minimize the costs of\nregulations promulgated following informal rulemaking proceedings.\nYour Office is charged with ensuring compliance with these require\xc2\xad\nments by engaging in prepublication review of proposed and final rules\nand preliminary and final Regulatory Impact Analyses (RIA). In per\xc2\xad\nforming this oversight role, you and your staff will presumably commu\xc2\xad\nnicate on a regular basis with agency officials regarding the substance\nof proposed regulations. You might also wish to transmit to these\nagencies information or arguments received from other federal agencies\nor from non-federal parties. Some or all of these contacts might be\n\n107\n\n\x0cchallenged, under the so-called \xe2\x80\x9cex parte contacts\xe2\x80\x9d doctrine developed\nin the D.C. C ircuit.1\nW e conclude that neither the ex parte contacts doctrine nor other\ngenerally applicable provisions of law impose any duties on you or\nyour staff to refrain from communicating w ith rulemaking agencies.\nT he law is uncertain as to whether rulemaking agencies must disclose\ncommunications from your Office which occur after publication of a\nnotice o f proposed rulemaking. In order to reduce the danger of rever\xc2\xad\nsal, we believe that rulemaking agencies should include in the adminis\xc2\xad\ntrative file and the record for judicial review: (1) oral or written\ninformation from your Office of a purely factual nature; and (2) oral or\nwritten material received from an interested party outside the federal\ngovernm ent which influences the views your Office expresses to the\nagency. Your Office could assist rulemaking agencies in complying\nwith these recommendations by following procedures similar to those\ndescribed herein.\nI. Ex Parte Contacts Doctrine\nThe D.C. Circuit has thrice addressed the question of ex parte con\xc2\xad\ntacts in informal rulemaking. In Home Box Office, Inc. v. FCC, 567\nF.2d 9 (D.C. Cir) (per curiam), cert, denied, 434 U.S. 829 (1977), inter\xc2\xad\nested private parties engaged in wide-spread, off-the-record communi\xc2\xad\ncations with FC C Commissioners and staff regarding a proposed cable\ntelevision rule. The court condemned the comments on several\ngrounds, including the D ue Process Clause, the judicial review require\xc2\xad\nments o f the Administrative Procedure Act (APA), and what the court\nperceived to be a general need to ensure rationality and fairness in\nagency decision processes. In a broadly w orded dictum, the court\nstated that such communications would be improper even if the FCC\ndisclosed them in the administrative file in time to allow public com\xc2\xad\nment and judicial review. The court also said that such comments\nwould be permissible prior to publication o f a notice of proposed\nrulemaking. 567 F.2d at 59.\nIn Action fo r Children\xe2\x80\x99s Television v. FCC, 564 F.2d 458 (D.C. Cir.\n1977), a different panel o f the D.C. Circuit refused to apply Home Box\nOffice retroactively. In dictum, the panel severely criticized the Home\nBox Office rationale and expressed its view that the doctrine should be\n1 Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C Cir. 1959); Home Box Office,\nInc. v. FCC , 567 F.2d 9 (per curiam) (D.C. Cir.), cert denied, 434 U.S. 829 (1977); Action for Children's\nTelevision v. FCC, 564 F.2d 458 (D .C. Cir. 1977); United States Lines, Inc. v. FMC, 584 F.2d 519 (D.C.\nCir. 1978); Hercules. Inc. v. EPA, 598 F.2d 91 (D .C. Cir. 1978); National Sm all Shipments Traffic\nConference, Inc. v. IC C , 590 F.2d 345 (D.C. Cir. 1978); United Steelworkers o f America v. Marshall, 647\nF.2d 1189 (D.C. Cir. 1980), cert denied sub nom. Lead Industries Ass'n v. Donovan, 453 U.S 913 (1981).\nW hile other circuits have not taken a clear position on ex parte contacts, the D.C. Circuit cases are\nparticularly significant because so many federal regulatory actions are reviewed there and because, as\na practical matter, the D.C. Circuit is often the court of last resort in light o f the Supreme Court's\nlimited docket.\n\n108\n\n\x0climited to a narrow class of cases involving competing private claims to\na valuable privilege. Id. at 477.\nIn United Steelworkers o f America v. Marshall, 647 F.2d 1189 (D.C.\nCir. 1980), cert, denied sub nom. Lead Industries Ass'n v. Donovan, 453\nU.S. 913 (1981), the D.C. Circuit limited the ex parte contacts doctrine\nin the context of intra-agency communications. While formulating a\nfinal rule regulating workplace exposure to airborne lead, the Assistant\nSecretary of Labor consulted closely with a staff attorney who argued\nfor the agency staffs proposed standard. The Assistant Secretary also\ncommissioned private consultants to review and analyze the record, and\npartly relied on these studies in formulating a final rule. The Court, per\nChief Judge Wright, held that these off-the-record intra-agency com\xc2\xad\nmunications were permissible, even if slanted towards a particular view\xc2\xad\npoint,2 if they were part of the \xe2\x80\x9cdeliberative process,\xe2\x80\x9d a concept\nclosely analogous to the deliberative process exemption under the Free\xc2\xad\ndom of Information Act (FO IA ).3\nThe doctrine developed in Home Box Office involves three distinct\nrequirements: (1) a flat prohibition on agency receipt of views and\ninformation outside the usual channels for public comment; (2) a re\xc2\xad\nquirement that such views and information, if received, be memorial\xc2\xad\nized and placed in the administrative file for public comment; and (3) a\nduty to place such views and information in the record for judicial\nreview. In Vermont Yankee Nuclear Power Corp. v. N R D C , 435 U.S.\n519 (1978), the Supreme Court severely undermined the Home Box\nOffice doctrine. It held that, absent exceptional circumstances, a review\xc2\xad\ning court may not impose special rulemaking procedures beyond those\nset forth in the APA.\nWe believe that Vermont Yankee is inconsistent with D.C. Circuit\xe2\x80\x99s\nflat ban on agency receipt of views or information outside the usual\nchannels for public comment. This purely procedural prohibition finds\nno support w hatever in the text or the legislative history of the APA.\nThe APA contains no prohibition on such contacts in informal rulemaking, although it has always prohibited them in adjudication,4 and a\nrecent amendment provides penalties and remedies when they occur in\nadjudication or formal rulemaking.5 Early versions o f that amendment\nprohibited such contacts in informal rulemaking as w ell,6 but the provi\xc2\xad\n2Compare Association o f National Advertisers, Inc. v . FTC, 627 F .2d 1151 (D.C. Cir 1979) (disquali\xc2\xad\nfication for bias).\n3 5 U .S.C \xc2\xa7 552(b)(5) (1976).\n45 U.S.C \xc2\xa7 554(d) (1976).\n5Government in the Sunshine Act, 5*U.S C \xc2\xa7 557(d) (1976).\n*See S. 260, 93d Cong., 1st Sess 119 Cong. Rec. 647-51 (1973); H.R. 10000, 93d Cong., 1st Sess.\n119 Cong. Rec 28,205 (1973); Hearings on Government in the Sunshine Before the Subcomm on\nReorganization, Research, and International Organizations o f the Senate Comm, on Government Oper\xc2\xad\nations, 93d C o n g , 2d Sess. 189-254 (1974); Senate Comm, on Government Operations, 93d Cong., 2d\nSess., Government in the Sunshine: Response to Subcomm. Questionnaire (Comm. Print 1974).\n\n109\n\n\x0csion was deleted with the intention of leaving informal rulemaking\nunaffected.7 W e believe this history to be strong evidence that there is\nno basis for imposition by a court of a flat prohibition on agency\nreceipt of views or information outside the ordinary channels. You and\nyour staff may freely contact agencies regarding the substance of pro\xc2\xad\nposed regulations, and m ay do so by way of telephone calls, meetings,\nor other forms of communication unavailable to members of the public.\nIt is unclear whether the two other requirements of Home Box\nOffice\xe2\x80\x94that the substance of contacts be placed in the administrative\nfile and the record for judicial review\xe2\x80\x94can survive Vermont Yankee.\nThese requirements might possibly be supportable, not as part of an \xe2\x80\x9cex\nparte contacts\xe2\x80\x9d doctrine, but as implications o f the A P A \xe2\x80\x99s provisions for\njudicial review and for public participation in informal rulemaking, a\nquestion we discuss in the following section. W hat is clear, however, is\nthat the disclosure obligations, if any, lie w ith the rulemaking agency\nand not with your Office. Your Office is therefore under no legal\ndisability with respect to contacts w ith rulemaking agencies. A t most,\nyour Office could adopt procedures as a m atter of policy to assist the\nagencies in complying w ith our recommendations or with rules fash\xc2\xad\nioned by the agencies themselves to address this issue.8\nII. Disclosure Obligations of MnilemmaMiig Agencies\nW e believe that, at least as a m atter of protection against reversal in\nthe D.C. Circuit, rulemaking agencies should disclose in the administra\xc2\xad\ntive file and the record fo r judicial review substantive communications\nfrom your Office to the extent that they are (1) purely factual as\nopposed to deliberative in nature, or (2) received by your Office from a\nsource outside o f executive or independent agencies. This conclusion is\n7 S. Rep. No. 354, 94th Cong., 1st Sess. 35 (1975); 121 Cong. Rec. 35,330 (1975) (remarks of Sen.\nKennedy).\n8Specific \xe2\x80\x9c hybrid rulemaking\xe2\x80\x9d statutes may sometimes impose special' rules regarding contacts\nbetween your Office and rulemaking agencies. T he Clean Air A ct Amendments of 1977, for example,\nrequire that w ritten documents compiled during your Office\xe2\x80\x99s review procedures be placed in the\nrulemaking docket prior to the promulgation o f a final rule. 42 U S.C. \xc2\xa7 7607(dX4)(B)(ii) (Supp. Ill\n1979). T hese docum ents are excluded from the record on judicial review. Id. \xc2\xa7 7607(d)(4)(B)(ii). Two\nchallenges to interagency participation in Clean A ir Act rulemaking are now pending in the D.C.\nCircuit. Sierra Club v. Costle, Nos. 79-1565 et al.\\ American Petroleum Institute v. Costle, Nos. 79-1104\net a I. In those cases EPA officials m et with other Executive Branch officials to discuss a rule after the\nclose o f the public comment period; the substance o f these meetings was not fully disclosed in the\nrecord for judicial review. The governm ent takes the position that EPA fully complied with the Clean\nA ir A ct\xe2\x80\x99s requirements. The cases h av e been argued and await decision.0\nInternal agency regulations, w hich have the force of law until repealed, may also limit contacts\nwith your OfTice during rulemaking. Cf. 47 C.F.R. \xc2\xa7 1 (1979) (FCC); 16 C.F.R. \xc2\xa7 1012 (1979) (CPSC);\n14 C .F.R . \xc2\xa7 300.2 (CAB).\n\xc2\xb0N ote: In Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), the court o f appeals held that \xe2\x80\x9c the\nexistence o f intra-Executive Branch meetings during the post-comment period . . . violated neither\nthe procedures mandated by the Clean Air Act nor due process.\xe2\x80\x9d 657 F.2d at 408. In American\nPetroleum Institute v. Costle, 665 F .2d 1176 (D.C. Cir. 1981) cert, denied 455 U.S. 1034 (1982), the\ncourt o f appeals refused to consider the plaintiff's objection to E P A \xe2\x80\x99s post-comment period contacts\nw ith OMB, on grounds that this objection had not first been raised in the administrative proceedings.\nEd.\n\n110\n\n\x0cbased on a combination of possible disclosure requirements in the APA\nand a deliberative process exception. \xe2\x80\x98\nA. APA Provisions\n\nThe APA provides that judicial review of informal rulemaking shall\nbe based on the \xe2\x80\x9cwhole record.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 706. The Supreme Court\nhas never clearly stated what types of material must be included in the\nrecord for judicial review. Traditionally, informal rulemaking proce\xc2\xad\ndures were thought to leave the agency almost complete discretion as\nto what was included in the record; judicial review was correspond\xc2\xad\ningly narrow and deferential. More recently, the Supreme Court has\nstated that judicial review of informal agency action should be \xe2\x80\x9csearch\xc2\xad\ning and careful,\xe2\x80\x9d 9 and that a reviewing court should remand a case to\nthe agency if its determination is not \xe2\x80\x9csustainable on the administrative\nrecord made.\xe2\x80\x9d 10 The relatively intensive judicial scrutiny implied by\nthese statements seems incompatible with the traditional idea that the\nagency retains complete control over what goes in the record. Lower\nfederal courts have expanded on the Supreme Court\xe2\x80\x99s tentative state\xc2\xad\nments by inferring a requirement that the record for judicial review\ncontain all material, whether factual, analytical, or argumentative,\nwhich is substantive in the sense that it might have influenced the\nagency\xe2\x80\x99s decision.11 Finally, the Supreme Court in Vermont Yankee\ngave somewhat conflicting signals on the question.12 The Court\xe2\x80\x99s em\xc2\xad\nphasis on the agency\xe2\x80\x99s discretion to structure its own procedures free of\njudicial interference suggests that this discretion should include the\npower to determine the content of the record for judicial review. On\nthe other hand, the Court\xe2\x80\x99s remand of the case to the D.C. Circuit for a\ndetermination of whether the rule was sustainable on the administrative\nrecord points to a more stringent record requirement.13\nThe state o f the law on this point is, in short, confused. We do not\nbelieve it to be particularly useful to attempt to predict whether the\nSupreme Court would require that substantive oral or written commu\xc2\xad\nnications received by the agency be included in the record for judicial\nreview. We would, however, recommend that agencies generally adopt\n9Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).\nI0Camp v. Pitts, 411 U.S. 138, 143 (1973) (per curiam).\n11See National Courier Ass'n v Board o f Governors, 516 F.2d 1229, 1241 (D .C C ir. 1975). See\ngenerally Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D .C C ir 1973), cert, denied, 417 U.S.\n921 (1974); Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D .C . C ir 1972); International Harvester Co.\nv. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973). C f Greater Boston Television Corp. v. FCC, 444 F.2d 841\n(D .C . C ir 1970), cert, denied, 403 U.S. 923 (1971)\n12Compare S tew art, Vermont Yankee and The Evolution o f Administrative Procedure, 91 H arv. L.\nRev. 1805 (1978), with Byse, Vermont Yankee and the Evolution o f Administrative Procedure: A Some\xc2\xad\nwhat Different View, 91 H arv. L. R ev 1823 (1978).\n13O ne com m en ter has arg u ed that in light o f the adm inistrative record the C ourt should simply\nhave affirm ed the agency ra th e r than rem anding. Breyer, Vermont Yankee and the Courts' Role m the\nNuclear Energy Controversy, 91 H a rv L R ev. 1833 (1978).\n\nin\n\n\x0cthis course to avoid a substantial danger of reversal in the D.C. Circuit\nw ithout any assurance o f vindication in the Supreme C ourt.14\nWe would also recommend that agencies generally include substan\xc2\xad\ntive oral or written communications in the administrative file for public\ncomm ent and criticism, at least when these communications occur\nbefore the close o f public com m ent.15 A \xe2\x80\x9cpublic comment\xe2\x80\x9d requirement\ncould be inferred from the A P A \xe2\x80\x99s provision for review on the whole\nrecord and its guarantee of an \xe2\x80\x9copportunity to participate in the rule\nm aking,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 553(c). On the other hand, such a requirement\ncomes perilously close to the type of extra-statutory procedure Vermont\nYankee forbids courts to require of agencies. In addition, the opportu\xc2\xad\nnity to comment on evidence in the record seems inconsistent with the\nrealities o f informal rulemaking, clearly sanctioned by the APA, that\ninterested parties can file comments on the last day of the comment\nperiod and thereby deprive others outside the government of a chance\nto comment unless the agency, in its discretion, chooses to reopen the\nfile. The argum ent for public comment is considerably weaker than the\ncase for placing substantive material in the judicial record; our judg\xc2\xad\nment is that the Supreme Court would not impose such a requirement.\nNevertheless, the D.C. Circuit probably would require public com\xc2\xad\nment, 16 and the prospects of obtaining Supreme Court review of such a\ndetermination cannot be predicted.\nB. Deliberative Process Exception\n\nN otwithstanding these general recommendations, we believe that the\nrulemaking agency need not disclose substantive communications from\nyour Office which form part of the agency\xe2\x80\x99s deliberative process. A\nvariety o f legal doctrines recognize a privilege against compelled dis\xc2\xad\nclosure o f the federal governm ent\xe2\x80\x99s deliberations. The need for non\xc2\xad\ndisclosure is inherent in the President\xe2\x80\x99s constitutional power to \xe2\x80\x9ctake\nCare that the Laws be faithfully executed,\xe2\x80\x9d 17 by \xe2\x80\x9csupervising] the\nguid[ing]\xe2\x80\x9d executive agencies in their \xe2\x80\x9cconstruction of the statutes\nunder which they act in order to secure that unitary and uniform\nexecution of the laws which Art. II of the Constitution evidently\ncontem plated in vesting general executive power in the President\nalone.\xe2\x80\x9d 18 Similar concerns undergird the constitutionally based privi\xc2\xad\n14T he agency need not engage in unnecessary duplication o f material already contained in the\nrecord, however.\n15 A case-by-case analysis may be required to determine whether the administrative file must be\nreopened to allow public comment on communications received after the close of the comment period.\nSee E thyl Corp. v. EPA, 541 F 2d 1 (D.C. Cir.), cert, denied, 426 U.S. 941 (1976).\nlGSee Home Box Office, Inc. v. FCC, supra 567 F.2d 9; Ethyl Corp. v. EPA, supra, 541 F.2d 1. Cf.\nUnited States Lines, Inc. v. FMC, 584 F.2d 519 (D.C. Cir. 1978) (informal adjudication).\n17 U.S. Const., Art. II, \xc2\xa73 See also U.S. Const., Art. II, \xc2\xa7 2 (presidential power to require written\nopinions from heads of executive departments).\nMyers v United States, 272 U.S. 52, 135 (1926).\n\n112\n\n\x0clege for certain deliberative communications within the Executive\nBranch,19 as well as the rule against probing an administrator\xe2\x80\x99s mind in\ncourt absent a showing of bad faith or other exceptional circum\xc2\xad\nstances.20 Congress has safeguarded the deliberative process by exempt\xc2\xad\ning deliberative documents from disclosure under the FOIA.21 Finally,\nthe D.C. Circuit held the ex parte contacts doctrine inapplicable to\ndeliberative process communications in United Steelworkers, supra. For\nsimilar reasons, we believe that oral or written communications which\nare part of the deliberative process need not be disclosed under any\nprovisions of the APA.\nDeliberative process communications are those designed to aid the\nagency in determining its course based on the facts of record. They\ninclude analyses of these facts,22 legal and policy arguments,23 and\nfactual data that cannot be reasonably segregated from deliberative\nmaterial.24 They do not include oral or written factual data which can\nbe reasonably segregated from deliberative material.25 Thus the rulemaking agency need not disclose your Office\xe2\x80\x99s legal and policy argu\xc2\xad\nments and analyses of the facts, but should generally disclose readily\nsegregable factual material.\nCommunications from executive or independent agencies are entitled\nto deliberative process protection. Your Office surely participates in the\ndeliberative process when it exercises the power of the President dele\xc2\xad\ngated to you to \xe2\x80\x9csupervise and guide\xe2\x80\x9d the agency by communicating\nfactual analyses or legal and policy arguments. We believe the delibera\xc2\xad\ntive process is also implicated when your Office acts as a \xe2\x80\x9cconduit\xe2\x80\x9d for\nviews of other executive agencies, since these agencies are part of an\nintegrated Executive Branch headed by the President. We reach the\nsame conclusion with respect to independent agencies.26 Although\nlargely freed of presidential oversight and supervision, these agencies\nare part of a unitary government which seeks as far as possible to\ncoordinate its programs and policies.27\n,3See United States v Nixon, 418 U.S. 683 (1974).\n20See, e.g.. United States v Morgan, 313 U S 409, 422 (1941), National Courier Ass\xe2\x80\x99n v. Board o f\nGovernors, 516 F.2d at 1241-42.\n21 5 U.S.C. \xc2\xa7 552(b)(5); see generally N L R B v. Sears. Roebuck & Co.. 421 U.S. 132 (1975).\n22See United Steelworkers o f America v. Marshall, supra, 647 F 2d at 1212 n.20, 1218.\n23See, e.g., N L R B v. Sears, Roebuck & Co., 421 U.S. at 149 (exemption 5 protects attomey-client\nand attorney work-product privileges); EPA v. Mink, 410 U.S. 73, 91 (1973) (exemption 5 protects\n\xe2\x80\x9c matters of law, policy or opinion\xe2\x80\x9d).\n24See EPA v. Mink, 410 U.S. 73, 88 (1973); United Steelworkers o f America v. Marshall, supra, 647\nF.2d at 1220; Mead Data Central, Inc. v. United States Department o f A ir Force, 566 F.2d 242, 260-61\n( D C Cir. 1977).\n25See cases cited in note 24, supra. Also not within the deliberative process are communications\nwhich the agency adopts as the explanation for its action. See Renegotiation Board v. Grumman\nAircraft Engineering Corp., 421 U.S. 168 (1975); N L R B v Sears, Roebuck & Co., supra, 421 U.S. 132\n26 Deliberative process documents transmitted from an independent agency to an Executive Branch\nagency would be exempt from disclosure under FOIA. 5 U.S.C. \xc2\xa7\xc2\xa7 552(b)(5), 552(e)\n27Our conclusions in this regard are consistent with Recommendation 80-6 of the Administrative\nConference o f the United States Regarding Executive Branch Communications in Informal Rulemak\xc2\xad\ning Proceedings Administrative Conference of the United States: Recommendations and Reports 27\n(1980).\n\n113\n\n\x0cOur view is that the deliberative process does not extend to the legal\nor policy views of persons outside of executive or independent agen\xc2\xad\ncies. These persons are not within the overall decision process of the\nrulemaking agency. Their views not being protected by a deliberative\nprocess exception, the rulemaking agency would be well advised to\nplace these views in the administrative file and the record for judicial\nreview if the views might affect the agency\xe2\x80\x99s decision. Agencies should\nfollow this procedure even if the views are transmitted by an executive\nor independent agency acting as a \xe2\x80\x9cconduit\xe2\x80\x9d for the third party.\nIII. \xc2\xa9M\xc2\xae IPrmcedmiirss\n\nAs discussed above, your Office is under no legal obligation to limit\nits communications with rulemaking agencies. We also conclude that, as\na matter of policy, the agencies should include in the administrative file\nand the record for judicial review substantive oral or written communi\xc2\xad\ncations from your Office which (1) are purely factual in nature, or (2)\nare \xe2\x80\x9cconduit\xe2\x80\x9d transmissions of views or information from persons out\xc2\xad\nside of executive or independent agencies. Your Office could assist the\nrulemaking agencies in the task of distinguishing what should be dis\xc2\xad\nclosed from what may be kept out of the public record, as follows:\n(1) Your Office could separate, as far as possible, purely factual\nmaterial from arguments and analyses in oral or written com\xc2\xad\nments it makes to the rulemaking agency under the Order. A\nformat could be developed for comments which clearly draws\nthis distinction. The agency should generally be entitled to rely\non your Office\xe2\x80\x99s judgment that the transmitted material is delib\xc2\xad\nerative rather than factual in nature.\n(2) With respect to \xe2\x80\x9cconduit\xe2\x80\x9d communications, the official re\xc2\xad\nsponsible for commenting to the rulemaking agency could deter\xc2\xad\nmine whether his views have been influenced by oral or written\ncommunications received from someone outside of executive or\nindependent agencies. If so, your Office could require that the\nthird party transmit this material to the rulemaking agency for\ninclusion in the administrative file and the record for judicial\nreview. The official may transmit to the rulemaking agency a\nstatement of your Office\xe2\x80\x99s views, which need not be disclosed\nexcept to the extent it includes purely factual material.\nAlternatively, or in conjunction with these procedures, your Office\ncould seek to ensure that rulemaking agencies follow the advice con\xc2\xad\ntained in this memorandum. Agencies could institute a policy of disclos\xc2\xad\ning in the administrative file and the record for judicial review all\nmaterial which your Office identifies as purely factual in nature, as well\nas the identified conduit material transmitted under (2) above. The\nagencies would have to develop procedures for memorializing the non114\n\n\x0cdeliberative parts of oral communications from your Office. Your\nOffice could assist the agencies in following these recommendations by\nrendering informal advice or by more formal instructions.\nT h e o d o r e B. O l so n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n115\n\n\x0c"


b'Application of the Federal Water Pollution Control Act to\nthe Former Panama Canal Zone\n\nT h e Panam a C anal T reaty and its im plem enting legislation m ake U.S. law s based on\nterrito rial jurisd ictio n , including the Federal W ater Pollution C ontrol A ct, inapplicable\nto the form er P anam a Canal Z o n e. B oth the T re a ty negotiators and C ongress expected\nenvironm ental problem s in th e form er C anal Z one to be dealt w ith jo intly by the\nU nited States and Panama th ro u g h th e Joint Com m ission on the E nvironm ent.\n\nMarch 17, 1981\nM EM ORAN DUM O P IN IO N FO R T H E A SSISTA N T LEG A L\nA D V IS E R FO R IN TER -A M ER IC A N A FFA IRS, D E PA R T M E N T\nO F STA TE\nThis responds to your request for our opinion whether the Federal\nW ater Pollution Control A ct (FW PCA), 33 U.S.C. \xc2\xa7311 of \xc2\xa71321,\napplies to the former Panama Canal Zone. T he several agencies that\nhave analyzed this question have reached contrary conclusions. We\nhave reviewed the memoranda prepared by these agencies and inde\xc2\xad\npendently reviewed the text of the Panama Canal Treaties 1 and related\ndocuments and legislation. F or reasons set forth below, we conclude\nthat the FW PC A does not apply to any portion of the former Canal\nZone.\nIn the FW PC A , Congress declares that there should be no discharge\nof oil o r hazardous substances into or upon \xe2\x80\x9cthe navigable waters of the\nUnited States or adjoining shorelines o r the waters o f the contiguous\nzone,\xe2\x80\x9d and imposes a civil penalty on any owner or operator of a\nvessel, on-shore facility, o r off-shore facility from which oil or a haz\xc2\xad\nardous substance is discharged. 33 U.S.C. \xc2\xa7 1321(b). The President is\nauthorized to remove discharged oil or hazardous substances and the\nparty responsible for the discharge is liable for removal costs. 33 U.S.C.\n\xc2\xa7 1321(c), (f), (g). The Adm inistrator o f the Environmental Protection\nAgency, the Secretary o f the Departm ent in which the Coast Guard is\noperating, the Council on Environmental Quality, and other officials\n\xe2\x80\xa2T w o treaties between the Republic of Panama and the United States were signed on September 7,\n1977: the Panama Canal Treaty 33 U.S.T. ____, T.I.A.S. No. 10030, and the Treaty Concerning the\nPerm anent Neutrality and Operation of the Panama Canal. 33 U.S.T. ____, T.I.A.S. No. 10029.\nHereinafter, references to the \xe2\x80\x9cT reaty \xe2\x80\x9d refer to the Panama Canal Treaty, unless otherwise specified.\n\n80\n\n\x0care given responsibilities either directly by the A ct or by delegation\nfrom the President. Id.; Executive Order No. 11,735 38 Fed. Reg. 21243\n(1973). The A ct is applicable only to navigable waters of the United\nStates, adjoining shorelines, and waters of the contiguous zone.2 The\nAct defines \xe2\x80\x9cUnited States\xe2\x80\x9d to include the Canal Zone; thus, prior to\nthe Canal Zone\xe2\x80\x99s change in status, the A ct clearly was applicable. The\nquestion here is whether the Panama Canal Treaty and implementing\nlegislation render the A ct inapplicable to the former Canal Zone.\nWe first examine the Treaty itself. Under the original 1903 treaty\nwith Panama, the United States obtained the right to exercise plenary\nadministrative and legislative jurisdiction over the Canal Zone as if the\nUnited States were sovereign over the Zone. 33 Stat. 2234, T.S. No.\n431, (1903). The recent Treaty substantially alters this relationship.\nUnder the Treaty, the Canal Zone itself loses its legal identification and\nPanama resumes administrative and legislative jurisdiction over the\nterritory lying within the former Zone. The Treaty provides in Article\nXI, that \xe2\x80\x9c[t]he Republic of Panama shall reassume plenary jurisdiction\nover the former Canal Zone upon entry into force o f this Treaty and in\naccordance with its terms.\xe2\x80\x9d As territorial sovereign, Panama grants to\nthe United States for the duration of the Treaty 3 \xe2\x80\x9cthe rights necessary\nto regulate the transit of ships through the Panama Canal, and to\nmanage, operate, maintain, improve, protect and defend the Canal.\xe2\x80\x9d\nThus, Panama grants to the United States the right to use, for these\npurposes, the various installations and areas including the Canal and its\nwaters.\nThe Treaty deals less clearly with the question what law shall govern\nthese areas. Paragraph 1 of Article IX o f the Treaty specifies that the\nlaws of the Republic of Panama shall apply in the areas made available\nfor use of the United States, although paragraph 8 prohibits Panama\nfrom adopting any law or taking any action that would interfere with\nrights granted under the Treaty to the United States. Paragraph 7 of\nArticle XI provides that \xe2\x80\x9c[t]he laws, regulations, and administrative\nauthority of the United States . . . shall, to the extent not inconsistent\nwith this Treaty, and related agreements, continue in force for the\npurpose of exercise by the United States of America of law enforce\xc2\xad\nment and judicial jurisdiction only during the transition period.\xe2\x80\x9d\nTreaties are to be construed \xe2\x80\x9cwith the highest good faith\xe2\x80\x9d with an\neye to the \xe2\x80\x9cmanifest meaning of the whole treaty.\xe2\x80\x9d Johnson v. Browne,\n205 U.S. 309, 321-22 (1907). Construing these Treaty provisions consist\xc2\xad\nently and in keeping with the purpose of the Treaty, we conclude that\n2 The \xe2\x80\x9ccontiguous zone\xe2\x80\x9d is defined as \xe2\x80\x9cthe entire zone established or to be established by the United\nStates under article 24 o f the Convention on the Territorial Sea and the Contiguous Zone.\xe2\x80\x9d 33 U.S.C.\n\xc2\xa7 1321(a)(9)\n3The Treaty terminates on December 31, 1999. Art II, U 2\n\n81\n\n\x0cthe laws o f the United States regarding water pollution are not applica\xc2\xad\nble in the form er zone.4\nIn interpreting a treaty and other international agreements, the con\xc2\xad\nstruction placed upon it by the Departm ent charged with supervision of\nour foreign relations should be given much weight. Kolovrat v. Oregon,\n366 U.S. 187, 194 (1961); Factor v. Laubenheimer, 290 U.S. 276, 294\xe2\x80\x9495\n(1933); Sullivan v. Kidd, 254 U.S. 433, 442 (1921). Here, the State\nD epartm ent consistently has taken the position that the FW PCA is\ninconsistent with, and thus superseded by, the Panama Canal Treaty. In\nconnection with the hearings on ratification o f the Treaty, the Secre\xc2\xad\ntary of State specifically listed the FW PCA, 33 U.S.C. \xc2\xa7 1321(a)(5), as a\nstatute that would be superseded by the T reaty.5 In 1980, the State\nD epartm ent Legal Adviser\xe2\x80\x99s Office opined that \xe2\x80\x9cany laws of the United\nStates based on territorial jurisdiction (such as the FW PCA) have\nbecome, by virtue of the Treaty, inapplicable in Panama.\xe2\x80\x9d 6\nThis interpretation of the Treaty is consistent with the Panama Canal\nA ct of 1979 (Canal Act), 22 U.S.C. \xc2\xa7 3601, legislation passed to imple\xc2\xad\nment the T reaty.7 The Canal A ct provides:\nSubject to the provisions of subsection (c) of this section,\nfor the purposes o f applying the . . . laws of the United\nStates and regulations issued pursuant to such . . . laws\nwith respect to transactions, occurrences, or status on or\nafter October 1, 1979\xe2\x80\x94\n(1) \xe2\x80\x9cCanal Zone\xe2\x80\x9d shall be deemed to refer to the areas\nand installations in the Republic of Panama made\navailable to the United States pursuant to the\nPanama Canal Treaty o f 1977 and related agree\xc2\xad\nments; . . .\n22 U.S.C. \xc2\xa7 3602(b)(1). Subsection (c), referred to above, provides:\nAny reference set forth in subsection (b) of this section\nshall apply except as otherwise provided in this chapter\nor unless (1) such reference is inconsistent with the provi\xc2\xad\nsions o f this chapter, (2) in the context in which a term is\nused such reference is clearly not intended, or (3) a term\nrefers to a time before October 1, 1979.\n4 It is true that repeals by implication are not favored and that a treaty will not be regarded as\nrepealing an earlier statute by implication unless the tw o are absolutely incompatible and the statute\ncannot be enforced without antagonizing the treaty. Johnson v. Browne, 20S U.S. 309, 321 (1907).\nW here there is such a conflict, however, it is resolved in accordance with the same rule of priority\nthat governs the resolution of conflicts between statutes. The later in time prevails. Cook v United\nStates. 288 U.S. 102, 118-19(1933).\n5 Panama Canal Treaties: Hearings on Executive N Before the Committee on Foreign Relations, 95th\nCong., 1st Sess. 80-82 (1977).\n6 L etter from the A cting Assistant Legal Adviser for Inter-American Affairs to an attorney with the\nFederal Maritime Commission (August IS, 1980).\n7T he A ct was intended by Congress to implement, and to be fully consistent with, the Panama\nCanal treaties. H.R. Rep. No. 94, 96th Cong., 1st Sess. (pt. I) 7-9 (1979).\n\n82\n\n\x0c22 U.S.C. \xc2\xa7 3602(c). If subsection (b) were not qualified by subsection\n(c), one could interpret subsection (b) to require that the term \xe2\x80\x9cCanal\n.Zone\xe2\x80\x9d in the FW PCA be read to refer to areas and installations in\nPanama made available to the United States pursuant to the Treaty and\nrelated agreements. These areas include the land and water areas\nencompassing a \xe2\x80\x9ccontinuous area generally following the course of the\nPanama Canal and generally contiguous to it . . . 8 and thus the\nFW PCA would apply to the navigable waters of the Canal. Subsection\n(c), however, precludes application of this definition of \xe2\x80\x9cCanal Zone\xe2\x80\x9d if\nsuch reference is inconsistent with the Canal Act or if such reference\nclearly is not intended. Just as enforcement of the FW PCA in the\nCanal area would be inconsistent with the Treaty, so would it be\ninconsistent with the Canal Act. In our opinion, such a reference was\nnot intended and the subsection (c) exception must be invoked.\nAs does the Treaty, the Act contains provisions which indicate it was\nnot intended that the FW PCA would apply to the former Zone. The\nPanama Canal Commission, for example, was created as an agency of\nthe Executive Branch to maintain and operate the Canal. Treaty, Art.\nIll, 1J3; 22 U.S.C. \xc2\xa73611. The Commission comprises both United\nStates nationals and Panamanian nationals, with the Panamanians as\xc2\xad\nsuming increasing management responsibilities throughout the treaty\nperiod. The Annex to the Treaty specifically provides that \xe2\x80\x9c[i]t is\nunderstood that the Panama Canal Commission . . . may perform func\xc2\xad\ntions such as . . . protection of the environment by preventing and\ncontrolling the spillage of oil and substances harmful to human or\nanimal life and of the ecological equilibrium in areas used in operation\nof the Canal and the anchorages.\xe2\x80\x9d Treaty Annex, U 3n. The authors\nthus contemplated that the Commission would be performing this func\xc2\xad\ntion, not the Administrator of the Environmental Protection Agency or\nother United States officials. To draw these United States officials into\nthe decisionmaking process by applying United States law could under\xc2\xad\ncut the participation of Panamanian nationals and undermine the goal of\nhaving Panamanian policymakers, managers, and employees in place\nand fully prepared to assume the responsibilities that will devolve upon\nPanama when the Treaty terminates. See H.R. Rep. No. 94, 96th Cong.,\n1st Sess. (pt. IV) 13 (1979).\nAnother indication that both the treaty negotiators and Congress\nexpected environmental problems to be dealt with jointly by the United\nStates and Panama is the creation of a Joint Commission on the Envi\xc2\xad\nronment. Treaty, Art. VI, 1) 2; 22 U.S.C. \xc2\xa7 3616. This Commission,\nestablished with equal representation from the United States and\nPanama, recommends to the two governments ways to avoid or to\n8Treaty, Art. Ill, 2(a); Treaty, Agreement in Implementation of Article III (Sept. 7, 1977), 33\nU.S.T ____, T.I A.S. No. 10031, Art. Ill, I and annex A, fl l(a)(i).\n\n83\n\n\x0cmitigate adverse environmental impacts. Article VI, H 1 of the Treaty\nexplains the underlying policy:\nT he United States . . . [and] Panama commit themselves\nto implement this Treaty in a manner consistent with the\nprotection of the natural environment o f the Republic of\nPanama. T o this end, they shall consult and cooperate\nwith each other in all appropriate ways to ensure that\nthey shall give due regard to the protection and conserva\xc2\xad\ntion of the environment.\nIn authorizing the establishment of the Joint Commission on the Envi\xc2\xad\nronment, the House Committee on Foreign Affairs stated its intent that\n\xe2\x80\x9cthe [Commission] be broad enough to deal with the entire range of\nenvironmental issues which might arise anywhere within the Panama\nCanal W atershed region.\xe2\x80\x9d H.R. Rep. No. 94, 96th Cong., 1st Sess. (pt.\nI) 12-13 (1979).\nAttem pting to apply the FW PCA to the Canal area after passage of\nthe Canal A ct also would raise jurisdictional problems. The FW PCA\nprovides that in cases under the A ct arising in the Canal Zone, actions\nmay be brought in the United States District Court for the District of\nthe Canal Zone. 33 U.S.C. \xc2\xa7 1321(n). Yet under the Canal Act and the\nTreaty, jurisdiction of the courts of the United States functioning in the\nformer Canal Zone is severely restricted and would not include juris\xc2\xad\ndiction over new suits arising out of the FW PCA. See Treaty, Art. XI,\nn 5; 22 U.S.C. \xc2\xa7 3841(a).9\nThroughout the legislative history o f the Canal Act, there are refer\xc2\xad\nences to the fact that United States territorial jurisdiction over the\nPanama Canal area has ceased. With respect to the redefinition of the\nCanal Zone quoted above,10 the House Committee on Foreign Affairs\nwrote:\nNotwithstanding section 2(c)(1)(A) of the bill, as reported,\nwhich establishes the general rule that laws of the United\nStates presently applicable in the Canal Zone will con\xc2\xad\ntinue to apply to areas and installations made available to\nthe United States pursuant to the Panama Canal Treaty,\nlaws which are presently applied to the Canal Zone on\nthe basis of territorial jurisdiction of the United States\n9W e note also that the Treaty Concerning Permanant Neutrality and Operation of ihe Panama\nCanal contains a provision (hat as a pre-condition o f transit, vessels may be required to establish the\nfinancial responsibility and guarantees for payment o f damages resulting from acts or omissions of such\nvessels when passing through the Canal, "consistent with international practices and standards/\'\nT reaty Concerning Permanent Neutrality, supra. Art. Ill,\n1(d) If the FW PCA applied to the Canal\narea during the period o f management by the United States, the Treaty provision referred to above\nwould conflict with 33 US.C \xc2\xa7 1321(p), which requires large vessels carrying oil or hazardous\nsubstances to establish and maintain, under applicable federal regulations, evidence of financial respon\xc2\xad\nsibility in set amounts.\n1022 U S .C . \xc2\xa7\xc2\xa7 3602(b), (c)\n\n84\n\n\x0cover the zone will continue to apply in these areas and\ninstallations only for the purpose of exercising authority\nvested in the United States by the Treaty and related\nagreements. This limited application of the U.S. law is\nnecessitated by the termination of the U.S. territorial juris\xc2\xad\ndiction effected by the Treaty.\nH.R. Rep. 94, 96th Cong., 1st Sess. (pt. I) 12 (1979). The House\nCommittee on Merchant Marine and Fisheries also emphasized that the\nlaws of the United States, insofar as they are applicable by virtue of\nterritorial jurisdiction of the United States in the Canal Zone prior to\nthe Treaty, continue in force only for the purposes of exercising the\nauthority vested in the United States by the Treaty. H.R. Rep. No. 98,\n96th Cong., 1st Sess. (pt. I) 41 (1979). The specific phrase that referred\nto territorial jurisdiction was dropped from the final version of the bill,\nbut there is no indication that Congress intended by this deletion to\nassert territorial jurisdiction over the canal areas. Certainly such an\nattempt would have provoked much debate.11\nWe note that at least one other agency, whose jurisdiction included\nthe Canal Zone pursuant to a statutory provision similar to the\nFW PCA, has concluded that the law it administers no longer applies in\nthe former Zone. The Zone was eligible for assistance under the Disas\xc2\xad\nter Relief Act because \xc2\xa7 102(4) of that Act, 42 U.S.C. \xc2\xa7 5122(4), defines\n\xe2\x80\x9cState\xe2\x80\x9d to include the Canal Zone. The Federal Emergency Manage\xc2\xad\nment Agency has determined, however, that the area formerly known\nas the Canal Zone is no longer eligible for disaster assistance: \xe2\x80\x9cW ith the\nratification of the Panama Canal treaties this area became territory\nwithin the Republic of Panama on October 1, 1979, and is, therefore,\nexcluded from assistance under the Disaster Relief Act of 1974.\xe2\x80\x9d 44\nFed. Reg. 66,062 (1979).12 The principle of harmony in statutory law\ndictates that, wherever possible, statutes should be construed consist\xc2\xad\nently and harmoniously. Hyrup v. Kleppe, 406 F. Supp. 214, 217 (D.\nColo. 1976); Sutherland Statutory Construction \xc2\xa7 53.01 (Sands ed., 1973\n& Supp. 1980).\n" T h e General Counsel\xe2\x80\x99s office of the Federal Maritime Commission has asserted that the FW PCA\nis not based solely on territorial jurisdiction and may be applied in areas that are not strictly part of\nthe United States\' territorial jurisdiction Cited in support of this assertion is \xc2\xa7 311(b)(1), 33 U.S.C.\n\xc2\xa7 1321(b)(1), in which Congress declares that it is the policy of the United States that there should be\nno discharges.\ninto or upon the navigable waters of the United States, adjoining shorelines, or into or\nupon the waters o f the contiguous zone, or in connection with activities under the Outer\nContinental Shelf Lands Act or the Deepwater Port Act or which may affect natural\nresources belonging to, appertaining to, or under the exclusive management authority of\nthe United States\n. .\n(Emphasis added, citations omitted.) The former Canal Zone fits into none of these categories,\nhowever. Given the unique nature of the responsibilities o f the United States in operating the Canal\nunder the treaty terms, and the participation of Panamanian nationals both on the Panama Canal\nCommission and the Joint Commission on the Environment, the waters of the Canal cannot accurately\nbe said to be under the exclusive management authority of the United States\n12 The Panama Canal Act of 1979 authorizes the Panama Canal Commission to expend appropriated\nfunds to deal with emergencies. 22 U S.C. \xc2\xa7 3753.\n\n85\n\n\x0cF or these reasons, we conclude that the FW PCA does not apply to\nany part of the former Canal Zone.\nL\n\narry\n\nL . S im m s\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n86\n\n\x0c'