B-197454.OM, MAY 27, 1980

B-197454.OM: May 27, 1980

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IN THE CONTEXT OF HOW THE SUBJECT OF INTERNATIONAL ENERGY POLICY FORMULATION IS TREATED IN THE REPORT. PROVIDES AS FOLLOWS: "THE CONGRESS *** DECLARES THAT THE ESTABLISHMENT OF A DEPARTMENT OF ENERGY IS IN THE PUBLIC INTEREST AND WILL PROMOTE THE GENERAL WELFARE BY ASSURING COORDINATED AND EFFECTIVE ADMINISTRATION OF FEDERAL ENERGY POLICY AND PROGRAMS. IT IS THE PURPOSE OF THIS CHAPTER - "(10) TO ESTABLISH AND IMPLEMENT THROUGH THE DEPARTMENT. POLICIES REGARDING INTERNATIONAL ENERGY ISSUES THAT HAVE A DIRECT IMPACT ON RESEARCH. THESE ARE: (1) TO ESTABLISH AND IMPLEMENT POLICIES REGARDING INTERNATIONAL ENERGY ISSUES THAT HAVE A DIRECT IMPACT ON ENERGY IN THE UNITED STATES. THERE IS NO DOUBT THAT.

B-197454.OM, MAY 27, 1980

SUBJECT: FORMULATION OF U. S. INTERNATIONAL ENERGY POLICIES - (ID-80-21) - (468590) - B-197454-O.M.

DIRECTOR, ID:

IN CONNECTION WITH OUR ADVANCE REVIEW OF THE SUBJECT REPORT, YOU REQUESTED THAT WE EXAMINE THE LEGISLATIVE HISTORY OF SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, 42 U.S.C. SEC. 7112(10) (SUPP. I 1977), WHICH CONCERNS THE ESTABLISHMENT AND IMPLEMENTATION OF CERTAIN INTERNATIONAL ENERGY POLICIES, IN THE CONTEXT OF HOW THE SUBJECT OF INTERNATIONAL ENERGY POLICY FORMULATION IS TREATED IN THE REPORT. PARTICULAR, YOU REQUESTED A LEGAL INTERPRETATION OF THE ROLE OF THE DEPARTMENT OF ENERGY (ENERGY) AS THE FOCAL POINT FOR THE FORMULATION OF SUCH POLICIES, THE RELATIONSHIP BETWEEN THE DEPARTMENTS OF STATE AND ENERGY, AND ENERGY'S ROLE VIS-A-VIS THAT OF THE NATIONAL SECURITY COUNCIL (COUNCIL). IN ADDITION, AS A SEPARATE MATTER, YOU REQUESTED A REVIEW OF THE LEGAL ASPECTS OF YOUR DISCUSSION OF THE ACCESS TO RECORDS PROBLEMS ASSOCIATED WITH THIS REPORT, ESPECIALLY IN VIEW OF SECTION 102 OF THEN PENDING S. 1878, 96TH CONGRESS. THIS LANGUAGE HAS SINCE BEEN ENACTED AS SECTION 102 OF THE GENERAL ACCOUNTING OFFICE ACT OF 1980, PUB. L. NO. 96-226, APPROVED APRIL 3, 1980, 94 STAT. 311, 312.

ENERGY AS FOCAL POINT FOR FORMULATION OF INTERNATIONAL ENERGY POLICIES

SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, PROVIDES AS FOLLOWS:

"THE CONGRESS *** DECLARES THAT THE ESTABLISHMENT OF A DEPARTMENT OF ENERGY IS IN THE PUBLIC INTEREST AND WILL PROMOTE THE GENERAL WELFARE BY ASSURING COORDINATED AND EFFECTIVE ADMINISTRATION OF FEDERAL ENERGY POLICY AND PROGRAMS. IT IS THE PURPOSE OF THIS CHAPTER -

"(10) TO ESTABLISH AND IMPLEMENT THROUGH THE DEPARTMENT, IN COORDINATION WITH THE SECRETARIES OF STATE, TREASURY, AND DEFENSE, POLICIES REGARDING INTERNATIONAL ENERGY ISSUES THAT HAVE A DIRECT IMPACT ON RESEARCH, DEVELOPMENT, UTILIZATION, SUPPLY, AND CONSERVATION OF ENERGY IN THE UNITED STATES AND TO UNDERTAKE ACTIVITIES INVOLVING THE INTEGRATION OF DOMESTIC AND FOREIGN POLICY RELATING TO ENERGY, INCLUDING PROVISION OF INDEPENDENT TECHNICAL ADVICE TO THE PRESIDENT ON INTERNATIONAL NEGOTIATIONS INVOLVING ENERGY RESOURCES, ENERGY TECHNOLOGIES OR NUCLEAR WEAPONS ISSUES, EXCEPT THAT THE SECRETARY OF STATE SHALL CONTINUE TO EXERCISE PRIMARY AUTHORITY FOR THE CONDUCT OF FOREIGN POLICY RELATING TO ENERGY AND NUCLEAR NONPROLIFERATION, PURSUANT TO POLICY GUIDELINES ESTABLISHED BY THE PRESIDENT; ***."

THIS STATUTE, BY ITS TERMS, EMPOWERS ENERGY TO ASSUME RESPONSIBILITIES IN TWO MAJOR AREAS, BOTH SUBJECT TO LIMITATIONS. THESE ARE:

(1) TO ESTABLISH AND IMPLEMENT POLICIES REGARDING INTERNATIONAL ENERGY ISSUES THAT HAVE A DIRECT IMPACT ON ENERGY IN THE UNITED STATES, BUT IN COORDINATION WITH THE SECRETARIES OF STATE, TREASURY AND DEFENSE; AND

(2) TO UNDERTAKE ACTIVITIES INVOLVING THE INTEGRATION OF DOMESTIC AND FOREIGN POLICY RELATING TO ENERGY, ALTHOUGH THE SECRETARY OF STATE SHALL CONTINUE TO EXERCISE PRIMARY AUTHORITY FOR THE CONDUCT OF FOREIGN POLICY RELATING TO ENERGY AND NUCLEAR NONPROLIFERATION, PURSUANT TO POLICY GUIDELINES ESTABLISHED BY THE PRESIDENT.

THERE IS NO DOUBT THAT, IN RELATION TO ENERGY'S PREDECESSOR AGENCIES, SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, EXPRESSES A CONGRESSIONAL INTENT "TO INCREASE SUBSTANTIALLY THE ROLE OF THE SECRETARY OF ENERGY IN INTERNATIONAL ENERGY POLICYMAKING FOR THE NATION." S. REP. NO. 95-164, 95TH CONG., 1ST SESS. 23 (MAY 14, 1977). HOWEVER, WE DO NOT BELIEVE THAT ENERGY, AS A CONSEQUENCE OF THIS SUBSECTION, HAS BEEN GRANTED THE ROLE OF EXCLUSIVE FOCAL POINT FOR THE FORMULATION OF INTERNATIONAL ENERGY POLICY. TO THE EXTENT THAT THE STATUTORY LANGUAGE HAS BEEN ASSUMED IN THE SUBJECT REPORT (SEE, E.G., PP. 1-4, 3-1, 3-2, AND 3-15 OF THE REPORT) TO REQUIRE:

(1) THAT ALL INTERNATIONAL ENERGY POLICIES BE INITIATED AND ESTABLISHED IN ENERGY, TO THE EXCLUSION OF LEADERSHIP BY OTHER AGENCIES (PARTICULARLY THE NATIONAL SECURITY COUNCIL); OR

(2) THAT ENERGY BE THE LEAD AGENCY IN THE STUDY AND FORMULATION OF ALL INTERNATIONAL ENERGY POLICIES,

WE CONCLUDE THAT THE STATUTE AND ITS LEGISLATIVE HISTORY DO NOT SUPPORT SUCH INTERPRETATIONS. ON AN ADDENDUM TO FORM 117, PROVIDING RECOMMENDED CHANGES TO THE REPORT, WE HAVE RECOMMENDED THE PARTICULAR LANGUAGE NECESSARY TO MODIFY THESE ASPECTS OF THE REPORT, TO WHICH YOUR STAFF HAS AGREED.

THE LEGISLATIVE HISTORY REVEALS THAT WHAT IS NOW SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, WAS INITIATED BY AND THE OBJECT OF DEBATE ONLY IN THE SENATE. NEITHER THE ADMINISTRATION PROPOSALS FOR A DEPARTMENT OF ENERGY (H.R. 4263, 95TH CONG., AND S. 826, 95TH CONG.) NOR THE BILL REPORTED BY THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS AND PASSED BY THE HOUSE OF REPRESENTATIVES INCLUDED THE CONTENTS OF THIS PROVISION. SEE H.R. 6804, 95TH CONG.; H.R. REP. NO. 95-346, PART I, 95TH CONG., 1ST SESS. (MAY 16, 1977); AND 123 CONG. REC. H5269-H5335, H5371- H5416 (DAILY ED., JUNE 2 AND 3, 1977).

MOREOVER, THE ONLY EVIDENCE OF RECORD DURING CONSIDERATION OF THIS LEGISLATION OF THE NATURE AND CAUSE OF SENATE CONCERN ABOUT INTERNATIONAL ENERGY POLICY THAT WE FOUND WAS IN THE SENATE HEARINGS. DEPARTMENT OF ENERGY ORGANIZATION ACT, HEARINGS ON S. 826 AND S. 591 BEFORE THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS, 95TH CONG., 1ST SESS. 145 AND 146 (MARCH-APRIL 1977). THESE SENATE CONCERNS MAY BE SUMMARIZED AS: (1) DISSATISFACTION WITH THE RECORD OF THE STATE DEPARTMENT IN THE FIELD OF ENERGY; AND (2) A LACK OF COORDINATION AMONG THE DEPARTMENTS OF THE FEDERAL GOVERNMENT RELATING TO INTERNATIONAL ENERGY POLICY. THESE WERE COUPLED WITH A DESIRE THAT: (1) ENERGY SHOULD HAVE AN INPUT IN THE INTERNATIONAL ENERGY SIDE; AND (2) ENERGY PROBABLY SHOULD BE GIVEN A COORDINATION FUNCTION BETWEEN CONSUMERS AND PRODUCERS AND BETWEEN NATIONAL ENERGY POLICY AND WORLD ENERGY POLICY.

AT THAT POINT, IT WAS NOT CLEAR HOW THESE VIEWS WOULD BE EXPRESSED IN TERMS OF LEGISLATIVE LANGUAGE. HOWEVER, SENATOR ABRAHAM RIBICOFF, CHAIRMAN OF THE SENATE GOVERNMENTAL AFFAIRS COMMITTEE CONSIDERING THE BILL, DID MENTION ON THE SENATE FLOOR SHORTLY THEREAFTER THAT THE COMMITTEE, IN MAKING UP THE DEPARTMENT OF ENERGY LEGISLATION, WOULD BE CONSIDERING ADDITIONAL POWERS AND RESPONSIBILITIES FOR THE NEW DEPARTMENT ASIDE FROM THOSE IN THE ADMINISTRATION BILL, INCLUDING "THE LEAD ROLE FOR SETTING INTERNATIONAL ENERGY POLICIES IN THE AREA OF ENERGY SUPPLY AND CONSERVATION." 123 CONG. REC. S6810 (DAILY ED., APRIL 29, 1977).

WHEN S. 826, 95TH CONGRESS, WAS REPORTED FROM THE SENATE GOVERNMENTAL AFFAIRS COMMITTEE, IT INCLUDED TWO RELEVANT PROVISIONS SUBSECTION 102(K) AND SUBSECTION 207(5). SUBSECTION 102(K) WAS PART OF THE STATEMENT OF PURPOSE, WHILE SUBSECTION 207(5) WAS AMONG THE LISTINGS OF THE RESPONSIBILITIES OF THE SECRETARY OF ENERGY. SUBSECTION 102(K) STATED THAT:

"IT IS THE PURPOSE OF THE ACT ***

"(K) TO ASSIGN TO THE DEPARTMENT OF ENERGY A POLICY OF FORMULATION ROLE WITH RESPECT TO THE PARTICIPATION OF THE UNITED STATES IN INTERNATIONAL ENERGY PROGRAMS AND INITIATIVES, EXCEPT INSOFAR AS THESE PROGRAMS INVOLVE ISSUES OF NUCLEAR NONPROLIFERATION". (EMPHASIS ADDED.)

THIS PHRASEOLOGY OF "A POLICY FORMULATION ROLE," AS CONTRASTED WITH "THE POLICY FORMULATION ROLE," WAS ALSO USED REPEATEDLY IN THE COMMITTEE REPORT. SEE S. REP. NO. 95-164, 95TH CONG., 1ST SESS. 2 AND 20 (MAY 14, 1977). THIS PHRASEOLOGY IS NOT GENERALLY CONSISTENT WITH AN INTENT TO GRANT ENERGY THE ROLE OF EXCLUSIVE FOCAL POINT FOR THE FORMULATION OF INTERNATIONAL ENERGY POLICY.

MOREOVER, IN CONJUNCTION WITH THE USE OF THE PHRASE "A POLICY FORMULATION ROLE" IN THE SUBSECTION 102(K) STATEMENT OF PURPOSE, THE COMMITTEE INCLUDED IN SUBSECTION 207(5) THE PROVISIONS OF WHAT IS NOW SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, (EXCEPT FOR MINOR DIFFERENCES IN TENSE). CONSEQUENTLY, THE TWO PROVISIONS MUST BE CONSTRUED TO BE CONSISTENT WITH ONE ANOTHER, IF POSSIBLE.

THE COMMITTEE EXPLAINED ITS REASONING FOR SUBSECTION 207(5) AS FOLLOWS IN THE SECTION-BY-SECTION ANALYSIS:

"SECTION 207. RESPONSIBILITIES OF THE SECRETARY - GENERAL PROVISIONS

"AS WITH SECTION 102 DELINEATING THE PURPOSES OF THE DEPARTMENT, THE COMMITTEE DECIDED TO INCLUDE IN THE BILL EXPLICIT LANGUAGE REGARDING SECRETARIAL RESPONSIBILITIES. THE SPECIFIC RESPONSIBILITIES FOR THE SECRETARY AGREED TO BY THE COMMITTEE ARE AS FOLLOWS:

"(5) ESTABLISHING AND IMPLEMENTING, IN COORDINATION WITH THE SECRETARIES OF STATE, TREASURY, AND DEFENSE, POLICIES REGARDING INTERNATIONAL ENERGY ISSUES THAT HAVE A DIRECT IMPACT ON RESEARCH, DEVELOPMENT, UTILIZATION, SUPPLY, AND CONSERVATION OF ENERGY IN THE UNITED STATES; ***.

"MANY MEMBERS OF THE COMMITTEE EXPRESSED PARTICULAR CONCERN REGARDING THE ROLE OF THE SECRETARY OF ENERGY IN INTERNATIONAL ENERGY MATTERS. IT IS THE INTENT OF THE COMMITTEE THAT THE SECRETARY OF ENERGY WITH RESPECT TO INTERNATIONAL ENERGY MATTERS SHALL:

"(1) BE THE PRINCIPAL TECHNICAL ADVISER IN ANY INTERNATIONAL NEGOTIATIONS INVOLVING ENERGY RESOURCES, ENERGY TECHNOLOGIES, OR NUCLEAR WEAPONS; (2) HAVE THE AUTHORITY TO MAKE INDEPENDENT RECOMMENDATIONS TO THE PRESIDENT CONCERNING ANY INTERNATIONAL ACTION WHICH MAY AFFECT WORLD OR DOMESTIC ENERGY SUPPLIES OR DEMANDS; AND (3) HAVE THE RESPONSIBILITY TO TESTIFY BEFORE THE CONGRESS ON ANY INTERNATIONAL ISSUES WHICH AFFECT ENERGY POLICY CONSIDERATIONS.

"THE COMMITTEE LANGUAGE PROVIDES A STRONG ROLE FOR THE SECRETARY IN ESTABLISHING AND IMPLEMENTING POLICIES IN COORDINATION WITH THE SECRETARIES OF STATE, DEFENSE, AND TREASURY REGARDING INTERNATIONAL ENERGY ISSUES THAT HAVE A DIRECT IMPACT ON ENERGY SUPPLY AND CONSERVATION IN THE UNITED STATES, INCLUDING PROVISION FOR INDEPENDENT TECHNICAL ADVICE TO THE PRESIDENT ON SUCH MATTERS; PROVIDED HOWEVER, THAT THE SECRETARY OF STATE WILL CONTINUE TO EXERCISE PRIMARY RESPONSIBILITY FOR THE CONDUCT OF FOREIGN POLICY RELATING TO ENERGY AND NUCLEAR PROLIFERATION, PURSUANT TO POLICY GUIDELINES LAID DOWN BY THE PRESIDENT. THE COMMITTEE FEELS THAT THIS SPLIT ALLOWS THE SECRETARY TO MAKE A SUBSTANTIAL AND NECESSARY CONTRIBUTION TO INTERNATIONAL ENERGY POLICYMAKING, WHILE PRESERVING THE TRADITIONAL AUTHORITY OF THE SECRETARY OF STATE. (EMPHASIS ADDED.) REP. NO. 95-164, SUPRA, AT 27 AND 28.

THIS STATEMENT FROM THE SENATE COMMITTEE REPORT IS THE MOST EXTENSIVE EVIDENCE OF CONGRESSIONAL INTENT THAT APPEARS IN THE LEGISLATIVE HISTORY WITH RESPECT TO SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA. THERE WAS NO SUBSTANTIVE DISCUSSION OF THE PROVISION IN THE CONFERENCE REPORT WHEN THE CONTENT OF SUBSECTION 207(5) WAS TRANSFERRED TO SUBSECTION 102(10), NOR WAS THERE ANY INDICATION OF VARIANCE FROM THE SENATE'S STATEMENT OF THE SUBSTANTIVE MEANING OF THE PROVISION. SEE CONFERENCE REPORT, H.R. REP. NO. 95-539, 95TH CONG., 1ST SESS. 57 (JULY 26, 1977). THE PROVISION WAS NOT DISCUSSED DURING THE HOUSE DEBATE, AND THERE WAS ONLY MINIMAL DISCUSSION OF IT DURING THE SENATE DEBATE. 127 CONG. REC. S7916 (DAILY ED., MAY 18, 1977).

WE NOTE FIRST THE CONCERN OF THE SENATE COMMITTEE WITH THE DIVISION OF RESPONSIBILITIES AMONG THE CABINET DEPARTMENTS PARTICULARLY THE DEPARTMENTS OF STATE AND ENERGY, BUT ALSO THE DEPARTMENTS OF THE TREASURY AND DEFENSE. AT THE SAME TIME, WE NOTE THE ABSENCE OF DISCUSSION WITH REGARD TO THE INVOLVEMENT OF THE PRESIDENT, OF WHICH M6RE WILL BE SAID BELOW IN RESPONSE TO YOUR QUESTION INVOLVING THE NATIONAL SECURITY COUNCIL.

THE COMMITTEE, AND ULTIMATELY THE LEGISLATION, SOUGHT TO RESOLVE THE ISSUE OF DIVISION OF RESPONSIBILITIES AMONG THE DEPARTMENTS BY DELIMITING THE MATTERS IN WHICH ENERGY WAS AUTHORIZED TO "ESTABLISH AND IMPLEMENT" POLICIES REGARDING INTERNATIONAL ENERGY TO THOSE HAVING A "DIRECT IMPACT" ON ENERGY IN THE UNITED STATES. IMPLICITLY, FOR THOSE ISSUES HAVING AN "INDIRECT IMPACT" ON ENERGY IN THE UNITED STATES, THE ROLE OF ENERGY IS LESS PROMINENT VIS-A-VIS THE DEPARTMENTS TRADITIONALLY DEALING IN INTERNATIONAL ISSUES. BUT EVEN WITH RESPECT TO THOSE ISSUES HAVING A "DIRECT IMPACT," ENERGY IS TO "COORDINATE" WITH THE DEPARTMENTS OF STATE, TREASURY AND DEFENSE.

SINCE NEITHER "DIRECT IMPACT" NOR "COORDINATE" HAVE BEEN DEFINED IN THE STATUTE, REASONABLE MEN MAY DIFFER AS TO THEIR APPLICATION TO GIVEN ISSUES AND SITUATIONS. THEREFORE, SUBSECTION 102(10) PROVIDES CONSIDERABLE FLEXIBILITY TO THE ADMINISTERING AGENCIES IN ITS IMPLEMENTATION, AND DEFERENCE SHOULD BE GIVEN TO THEIR INTERPRETATIONS AS LONG AS THE INTERPRETATIONS ARE CONSISTENT WITH THE STATUTORY LANGUAGE. UDALL V. TALLMANN, 380 U. S. 1, 16 (1965). WE HAVE NOT SOUGHT THE VIEWS OF ANY AGENCIES WITH RESPECT TO SUBSECTION 102(10). CONSEQUENTLY, WE ARE NOT IN A POSITION, AND IT WOULD BE INAPPROPRIATE FOR US, TO DISCUSS IN GREAT DETAIL HOW THE SUBSECTION SHOULD BE IMPLEMENTED. WHAT WE CAN DO, AND HAVE ATTEMPTED TO DO IN THIS MEMORANDUM, IS TO INDICATE WHICH ASSUMPTIONS OR STATEMENTS RAISED BY THE SUBJECT REPORT REGARDING SUBSECTION 102(10) ARE NOT SUFFICIENTLY SUPPORTABLE BY THE LANGUAGE OF THE STATUTE OR ITS LEGISLATIVE HISTORY TO INCLUDE IN THE AUDIT REPORT. THE ASSUMPTIONS OR STATEMENTS IN THE SUBJECT REPORT (SEE, E.G., PP. 1-4, 3-1, 3-2, AND 3-15 OF THE REPORT) FOR WHICH WE COULD NOT FIND SUFFICIENT SUPPORT ARE THAT SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, REQUIRES:

(1) THAT ALL INTERNATIONAL ENERGY POLICIES BE INITIATED AND ESTABLISHED IN ENERGY, TO THE EXCLUSION OF LEADERSHIP BY OTHER AGENCIES; OR (2) THAT ENERGY BE THE LEAD AGENCY IN THE STUDY AND FORMULATION OF ALL INTERNATIONAL ENERGY POLICIES.

THE SUMMARY BASES FOR OUR CONCLUSIONS ARE AS FOLLOWS: AN EXCLUSIVE POLICYMAKING ROLE IN ENERGY FOR ALL INTERNATIONAL ENERGY ISSUES IS GENERALLY INCONSISTENT WITH THE LANGUAGE OF THE BILL AND SENATE COMMITTEE REPORT STATEMENT THAT ENERGY WAS ASSIGNED "A POLICY FORMULATION ROLE" AS CONTRASTED WITH "THE POLICY FORMULATION ROLE." IN ADDITION, IT IS SPECIFICALLY INCONSISTENT WITH THE LANGUAGE OF THE LAW AND SENATE COMMITTEE REPORT ONLY AUTHORIZING ENERGY "TO ESTABLISH AND IMPLEMENT" POLICIES REGARDING INTERNATIONAL ENERGY ISSUES HAVING A "DIRECT IMPACT" ON ENERGY IN THE UNITED STATES.

REGARDLESS OF THE PRECISE ROLE OF ENERGY AS A FOCAL POINT FOR THE FORMULATION OF INTERNATIONAL ENERGY POLICY WITH RESPECT TO ISSUES HAVING A "DIRECT IMPACT" ON ENERGY IN THE UNITED STATES, IT DOES NOT HAVE SUCH A ROLE WITH RESPECT TO ISSUES HAVING ONLY AN "INDIRECT IMPACT" ON ENERGY IN THE UNITED STATES. CONSEQUENTLY, ONE MUST AT LEAST GO THROUGH THE PROCESS OF EVALUATING WHETHER A GIVEN INTERNATIONAL ENERGY ISSUE HAS AN INDIRECT OR DIRECT IMPACT ON ENERGY IN THE UNITED STATES, AND REACH AN AFFIRMATIVE DETERMINATION THAT ITS IMPACT IS DIRECT, BEFORE ONE CAN CONCLUDE THAT THE STATUTORY PROVISION AUTHORIZING ENERGY TO ESTABLISH AND IMPLEMENT POLICY IS APPLICABLE. AS INDICATED PREVIOUSLY, THE VIEWS OF THE IMPLEMENTING AGENCIES SHOULD BE GIVEN DUE WEIGHT ON WHETHER AN ISSUE HAS A DIRECT IMPACT.

MOREOVER, WE HAVE SOME RESERVATIONS WHETHER SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, CAN BE CONSTRUED AS REQUIRING ENERGY TO BE THE EXCLUSIVE FOCAL POINT, EVEN AMONG THE CABINET DEPARTMENTS, FOR THE FORMULATION OF ALL INTERNATIONAL ENERGY POLICY DETERMINED TO HAVE DIRECT IMPACT ON ENERGY IN THE UNITED STATES. OUR CONCERN IS THAT A NUMBER OF SUCH INTERNATIONAL ENERGY ISSUES MAY SIMULTANEOUSLY INVOLVE INTERNATIONAL TRADE, INTERNATIONAL FINANCE, NATIONAL SECURITY, ETC. TO THE EXTENT THAT THEY DO, OTHER PARTICULAR AND MORE SPECIFIC STATUTES MAY MANDATE DIFFERENT POLICYMAKING AND DECISIONAL PROCEDURES. INDEED THEY MAY REQUIRE THAT AN AGENCY OTHER THAN ENERGY BE THE DECISIONMAKER.

THIS MAY BE TRUE EVEN WITH REGARD TO INTERNATIONAL ENERGY ISSUES DISCUSSED IN YOUR REPORT. FOR EXAMPLE, BY STATUTE OR OTHER LAW, THE SECRETARY OF COMMERCE RATHER THAN ENERGY ADMINISTERS THE EXPORT ADMINISTRATION ACT, 50 U.S.C. APP. SEC. 2401 ET SEQ., (ISSUE 3), AND THE SECRETARY OF THE TREASURY RATHER THAN ENERGY HAS AUTHORITY TO INSTRUCT REPRESENTATIVES OF THE UNITED STATES TO INTERNATIONAL FINANCIAL ORGANIZATIONS, 22 U.S.C. SEC. 286B, AND EXECUTIVE ORDER NO. 11269, AS AMENDED, 22 U.S.C. SEC. 286B, NOTE (ISSUE 4). IN SUCH INSTANCES, AT LEAST ARGUABLY, THESE OTHER AGENCIES HAVE AN INDEPENDENT MANDATE TO BE THE DECISIONMAKER IN THEIR RESPECTIVE AREAS OF JURISDICTION, WHETHER OR NOT AN INTERNATIONAL ENERGY POLICY ISSUE MAY BE INVOLVED. IF SO, ENERGY'S AUTHORITY TO "ESTABLISH AND IMPLEMENT" INTERNATIONAL ENERGY POLICY, EVEN WHERE THERE IS A "DIRECT IMPACT" ON ENERGY IN THE UNITED STATES, WOULD BE LIMITED TO THOSE ACTIONS WHICH ARE NOT INCONSISTENT WITH OTHER LAW.

ALL THAT WE CONCLUDE HERE ON THIS MATTER, HOWEVER, IS THAT ENERGY AS A CONSEQUENCE OF SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, HAS NOT BEEN GRANTED THE ROLE OF EXCLUSIVE FOCAL POINT FOR THE FORMULATION OF ALL INTERNATIONAL ENERGY POLICY. IN ADDITION, THERE IS INSUFFICIENT SUPPORT IN THE LANGUAGE OF THE STATUTORY PROVISION AND ITS LEGISLATIVE HISTORY UPON WHICH TO BASE AN AUDIT ASSUMPTION THAT ENERGY IS THE EXCLUSIVE F6CAL POINT, EVEN AMONG THE CABINET DEPARTMENTS, FOR THE FORMULATION OF "ALL" INTERNATIONAL ENERGY POLICY DETERMINED TO HAVE "DIRECT IMPACT" ON ENERGY IN THE UNITED STATES.

WE ADD, HOWEVER, DESPITE THE FOREGOING CONCLUSIONS, THAT WE HAVE NO LEGAL OBJECTION TO ASSUMPTIONS OR STATEMENTS THAT ENERGY HAS A SUBSTANTIAL OR STRONG ROLE IN ALL INTERNATIONAL ENERGY POLICYMAKING FOR THE NATION, WHETHER THE IMPACT IS DIRECT OR INDIRECT ON ENERGY IN THE UNITED STATES. THIS STEMS, IN ADDITION TO THE PROVISION DISCUSSED IN DETAIL IMMEDIATELY ABOVE, FROM THE OTHER MAJOR PORTION OF SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, WHICH AUTHORIZES ENERGY TO UNDERTAKE ACTIVITIES INVOLVING THE INTEGRATION OF DOMESTIC AND FOREIGN POLICY RELATING TO ENERGY. THE SENATE COMMITTEE CONSTRUED THIS PROVISION AS REQUIRING THAT THE SECRETARY OF ENERGY:

"(1) BE THE PRINCIPAL TECHNICAL ADVISER IN ANY INTERNATIONAL NEGOTIATIONS INVOLVING ENERGY RESOURCES, ENERGY TECHNOLOGIES, OR NUCLEAR WEAPONS; (2) HAVE THE AUTHORITY TO MAKE INDEPENDENT RECOMMENDATIONS TO THE PRESIDENT CONCERNING ANY INTERNATIONAL ACTION WHICH MAY AFFECT WORLD OR DOMESTIC ENERGY SUPPLIES OR DEMANDS; AND (3) HAVE THE RESPONSIBILITY TO TESTIFY BEFORE THE CONGRESS ON ANY INTERNATIONAL ISSUES WHICH AFFECT ENERGY POLICY CONSIDERATIONS."

S. REP. NO. 95-164, SUPRA, AT 27 AND 28. OF COURSE, THERE IS A CONSIDERABLE DIFFERENCE BETWEEN ENERGY'S HAVING A SUBSTANTIAL OR STRONG ROLE, INCLUDING THE RIGHT OF INDEPENDENT INPUT, AND ASSERTIONS THAT ENERGY IS THE EXCLUSIVE FOCAL POINT OR DECISIONMAKER FOR ALL INTERNATIONAL ENERGY POLICY.

RELATIONSHIP BETWEEN THE DEPARTMENTS OF STATE AND ENERGY

AS POINTED OUT EARLIER, THE LEGISLATIVE HISTORY OF SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORANIZATION ACT, SUPRA, REVEALS SOME CONCERN ABOUT THE RELATIONSHIP BETWEEN THE DEPARTMENT OF STATE AND THE NEW DEPARTMENT OF ENERGY WITH RESPECT TO INTERNATIONAL ENERGY POLICY. ULTIMATELY, ENERGY WAS AUTHORIZED BY SUBSECTION 102(10) TO ESTABLISH AND IMPLEMENT POLICIES REGARDING INTERNATIONAL ENERGY ISSUES THAT HAVE A DIRECT IMPACT ON ENERGY IN THE UNITED STATES AS WELL AS TO UNDERTAKE ACTIVITIES INVOLVING THE INTEGRATION OF DOMESTIC AND FOREIGN POLICY RELATING TO ENERGY. THE DEPARTMENT OF STATE IS ONE OF THE LISTED DEPARTMENTS WITH WHICH ENERGY MUST "COORDINATE" IN THESE ENDEAVORS. ADDITION, SUBSECTION 102(10) PROVIDES THAT REGARDLESS OF THESE FUNCTIONS LODGED IN ENERGY, "THE SECRETARY OF STATE SHALL CONTINUE TO EXERCISE PRIMARY AUTHORITY FOR THE CONDUCT OF FOREIGN POLICY RELATING TO ENERGY AND NUCLEAR NONPROLIFERATION, PURSUANT TO POLICY GUIDELINES ESTABLISHED BY THE PRESIDENT."

AS WITH THE TERM "COORDINATE," THE PHRASE "THE CONDUCT OF FOREIGN POLICY" IS NOT FREE FROM AMBIGUITY IN THIS CONTEXT. THE ONLY GUIDANCE TO ITS INTERPRETATION THAT WE FOUND IN THE LEGISLATIVE HISTORY WAS THE FOLLOWING STATEMENT FROM THE SENATE COMMITTEE REPORT:

"*** THE COMMITTEE FEELS THAT THIS SPLIT (OF RESPONSIBILITIES) ALLOWS THE SECRETARY (OF ENERGY) TO MAKE A SUBSTANTIAL AND NECESSARY CONTRIBUTION TO INTERNATIONAL ENERGY POLICYMAKING, WHILE PRESERVING THE TRADITIONAL AUTHORITY OF THE SECRETARY OF STATE."

S. REP. NO. 95-164, SUPRA, AT 28. ONE POSSIBLE INFERENCE THAT CAN BE DRAWN IS THAT THE CONGRESS WAS MORE CONCERNED WITH ESTABLISHING A ROLE FOR ENERGY IN INTERNATIONAL ENERGY POLICYMAKING THAN DIMINISHING THE TRADITIONAL AUTHORITY OF THE DEPARTMENT OF STATE. REGARDLESS, HOWEVER, THE STATUTORY LANGUAGE LEAVES CONSIDERABLE DISCRETION AND FLEXIBILITY IN ENERGY AND THE DEPARTMENT OF STATE ON THE MANNER OF IMPLEMENTATION OF ITS PROVISIONS. TO THE EXTENT THAT THE PRACTICES OF THESE DEPARTMENTS SATISFY THE LANGUAGE OF THE STATUTE AND THIS LEGISLATIVE HISTORY, THEY SHOULD BE GIVEN DUE DEFERENCE. UDALL V. TALLMANN, SUPRA.

THE SPECIFIC REFERENCE TO NUCLEAR NONPROLIFERATION IN THE STATUTE IS A SPECIAL CASE. SOME OF THE IMPETUS FOR THE ENACTMENT OF SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, PARTICULARLY THAT OF SENATOR HENRY JACKSON, WAS PERCEIVED PROBLEMS ASSOCIATED WITH INTERNATIONAL NUCLEAR ENERGY POLICY. SEE HEARINGS ON S. 826 AND S. 591 BEFORE THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS, SUPRA, AT 145 AND 146. HOWEVER, WITH RESPECT TO NUCLEAR NONPROLIFERATION, THE DIVISION OF RESPONSIBILITIES BETWEEN ENERGY AND THE DEPARTMENT OF STATE WAS BEING DEALT WITH IN SEPARATE LEGISLATION THEN BEING CONSIDERED, WHICH ULTIMATELY RESULTED IN THE NUCLEAR NON PROLIFERATION ACT OF 1978, 22 U.S.C.A. SEC. 3201 ET SEQ.

THERE ARE OTHER STATUTES, DEALING WITH PARTICULAR AREAS OF INTERNATIONAL ENERGY POLICY, WHICH ASSIGN RESPONSIBILITIES BETWEEN ENERGY AND THE DEPARTMENT OF STATE. THESE SPECIAL STATUTES, AND THEIR ASSIGNMENT OF RESPONSIBILITIES AMONG AGENCIES, WOULD GENERALLY TAKE PRECEDENCE OVER THE MORE GENERAL LANGUAGE OF SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, TO THE EXTENT THEY MAY BE INCONSISTENT. WE MAKE NO ATTEMPT TO LIST OR DESCRIBE THEM ALL HERE.

HOWEVER, MEMBERS OF YOUR STAFF HAVE SPECIFICALLY ASKED DURING DISCUSSIONS ON THE SUBJECT REPORT THAT WE ADDRESS THE IMPACT OF TITLE V OF THE FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEAR 1979, 22 U.S.C.A. SEC. 265A ET SEQ., ON INTERNATIONAL ENERGY POLICYMAKING AND THE DIVISION OF RESPONSIBILITIES BETWEEN THE DEPARTMENTS OF STATE AND ENERGY. THIS QUESTION ALSO AROSE DURING THE COURSE OF OUR REVIEW OF THE RECENT LETTER REPORT "U. S. INTERNATIONAL ENERGY RESEARCH AND DEVELOPMENT PROGRAM MANAGEMENT" (ID-80-14, FEBRUARY 5, 1980), BUT IT HAD NOT BEEN NECESSARY TO RESOLVE IT AT THAT TIME.

TITLE V OF THE FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEAR 1979, SUPRA, CONTAINS A SERIES OF PROVISIONS SETTING FORTH POLICIES AND RESPONSIBILITIES FOR SCIENCE AND TECHNOLOGY IN RELATION TO FOREIGN POLICY. THE MOST RELEVANT PORTIONS FOR PURPOSES HERE ARE SUBSECTIONS 503(A) AND, 504(A), 22 U.S.C.A. SECS. 2656CA) AND 2656DA), WHICH STATE:

"SEC. 503. (A) THE PRESIDENT, IN CONSULTATION WITH THE DIRECTOR OF THE OFFICE OF SCIENCE AND TECHNOLOGY POLICY AND OTHER OFFICIALS WHOM THE PRESIDENT CONSIDERS APPROPRIATE, SHALL -

"(1) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, INSURE THAT THE SECRETARY OF STATE IS INFORMED AND CONSULTED BEFORE ANY AGENCY OF THE UNITED STATES GOVERNMENT TAKES ANY MAJOR ACTION, PRIMARILY INVOLVING SCIENCE OR TECHNOLOGY, WITH RESPECT TO ANY FOREIGN GOVERNMENT OR INTERNATIONAL ORGANIZATION;

"SEC. 504. (A) IN ORDER TO IMPLEMENT THE POLICY SET FORTH IN SECTION 502 OF THIS TITLE (WHICH NEED NOT BE SET FORTH HERE), THE SECRETARY OF STATE *** SHALL HAVE PRIMARY RESPONSIBILITY FOR COORDINATION AND OVERSIGHT WITH RESPECT TO ALL MAJOR SCIENCE OR SCIENCE AND TECHNOLOGY AGREEMENTS AND ACTIVITIES BETWEEN THE UNITED STATES AND FOREIGN COUNTRIES, INTERNATIONAL ORGANIZATIONS, OR COMMISSIONS OF WHICH THE UNITED STATES AND ONE OR MORE FOREIGN COUNTRIES ARE MEMBERS."

THE DEPARTMENT OF ENERGY IS, OF COURSE, UNDERTAKING MANY INTERNATIONAL ENERGY RESEARCH AND DEVELOPMENT ACTIVITIES, EITHER UNDER THE AUSPICES OF SUCH ORGANIZATIONS AS THE INTERNATIONAL ENERGY AGENCY OR BILATERALLY. THE QUESTION IS THE ROLE OF THE DEPARTMENT OF STATE IN THESE ACTIVITIES AS A CONSEQUENCE OF TITLE V OF THE FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEAR 1979, SUPRA.

THE LANGUAGE OF TITLE V ORIGINATED IN THE HOUSE OF REPRESENTATIVES. SEE H.R. 12598, 95TH CONG., 2D SESS. (MAY 8, 1978). IT HAD APPARENTLY BEEN THE PRODUCT OF AN 8-YEAR-LONG STUDY BY THE HOUSE COMMITTEE ON INTERNATIONAL RELATIONS. 124 CONG. REC. H10138 (DAILY ED., SEPTEMBER 19, 1978). IT DID NOT APPEAR IN THE BILL THAT INITIALLY PASSED THE SENATE. SEE S. 3076, 95TH CONG., 2D SESS. (MAY 15, 1978); S. REP. NO. 95-842, 95TH CONG., 2D SESS. (MAY 15, 1978); 124 CONG. REC. S9965 S10045 (DAILY ED., JUNE 28, 1978).

THE HOUSE COMMITTEE ON INTERNATIONAL RELATIONS STATED THE FOLLOWING REGARDING THE SECTIONS OF TITLE V QUOTED ABOVE:

"SECTION 503(A)(1) IS INTENDED TO INSURE FULL COORDINATION BETWEEN THE FOREIGN POLICY OBJECTIVES OF THE U. S. GOVERNMENT AND THE PROGRAMS AND ACTIVITIES IMPLEMENTED TO ATTAIN THESE OBJECTIVES. IT ALSO IS INTENDED TO INSURE FULL AND COMPLETE COORDINATION BETWEEN PROGRAMS AND ACTIVITIES OF AGENCIES INVOLVING INTERNATIONAL SCIENTIFIC AND TECHNOLOGICAL INITIATIVES WITH OVERALL UNITED STATES FOREIGN POLICY. ***

"SECTION 504(A) ESTABLISHES THAT THE SECRETARY OF STATE SHALL HAVE PRIMARY RESPONSIBILITY FOR COORDINATION AND OVERSIGHT WITH RESPECT TO ALL INTERNATIONAL SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES OF THE U. S. GOVERNMENT.

"IN ESTABLISHING THE AUTHORITY OF THE SECRETARY OF STATE TO COORDINATE AND OVERSEE ALL SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES OF THE U. S. GOVERNMENT INVOLVING FOREIGN COUNTRIES, INTERNATIONAL ORGANIZATIONS AND INTERNATIONAL COMMISSIONS, THE COMMITTEE DIFFERENTIATES COORDINATION AND OVERSIGHT ON THE ONE HAND AND PROGRAM OPERATION AND MANAGEMENT ON THE OTHER. THE COMMITTEE INTENDS THAT THE SECRETARY OF STATE BE FULLY INFORMED AND CONSULTED WITH RESPECT TO THE SCOPE, MAGNITUDE, SCIENTIFIC OR TECHNOLOGICAL BENEFITS AND RISKS, AND POLITICAL IMPLICATIONS OF INTERNATIONAL SCIENTIFIC AND TECHNOLOGICAL PROGRAMS AND ACTIVITIES BEFORE AGENCIES INITIATE SUCH ACTIVITIES. THE COMMITTEE FURTHER INTENDS THAT THESE CONSULTATIONS CONTINUE THROUGHOUT SUCH PROGRAMS OR ACTIVITIES. * *

"THE COMMITTEE EXPECTS THAT THE ABILITY OF THE DEPARTMENT OF STATE TO MANAGE AND OPERATE INTERNATIONAL SCIENTIFIC AND TECHNOLOGICAL PROGRAMS AND ACTIVITIES WILL IMPROVE OVER TIME, DIMINISHING THE NEED TO RELY ON OTHER AGENCIES TO MANAGE, OPERATE AND IMPLEMENT SUCH ACTIVITIES. THE COMMITTEE INTENDS THAT THIS IMPROVEMENT WILL RESULT FROM THE ADDITION OF A SMALL NUMBER OF SKILLED PROFESSIONALS, A MAJOR IMPROVEMENT OF THE TECHNOLOGICAL SOPHISTICATION OF THE FOREIGN SERVICE THROUGH EDUCATION AND TRAINING ACTIVITIES ***, AND IMPROVEMENT IN LONG RANGE PLANNING FOR THE APPLICATION OF SCIENCE AND TECHNOLOGY TO FOREIGN POLICY PROBLEMS.

"WHILE THE COMMITTEE INTENDS THAT THE DEPARTMENT OF STATE ACQUIRE SUFFICIENT RESOURCES TO OVERSEE AND COORDINATE INTERNATIONAL AGENCY-TO AGENCY AGREEMENTS FOR COOPERATION IN HIGHLY SPECIALIZED OR SENSITIVE AREAS OF SCIENCE OR TECHNOLOGY, IT IS NOT THE INTENT OF THE COMMITTEE THAT THE DEPARTMENT OF STATE ASSUME RESPONSIBILITY FOR THE OPERATION OR MANAGEMENT OF SUCH AGREEMENTS. ADDITIONALLY, THE COMMITTEE ANTICIPATES THAT IN THE NEAR FUTURE, THE DEPARTMENT OF STATE WILL CONTINUE TO RELY ON OTHER AGENCIES FOR THE OPERATION AND MANAGEMENT OF PROGRAMS AND ACTIVITIES TO IMPLEMENT INTERNATIONAL AGREEMENTS FOR SCIENTIFIC OR TECHNOLOGICAL COOPERATION TO WHICH THE U. S. GOVERNMENT IS A PARTY, EVEN THOUGH STATE WOULD BE RESPONSIBLE FOR THE COORDINATION AND OVERSIGHT OF SUCH ACTIVITIES UNDERTAKEN PURSUANT TO SUCH AGREEMENTS.

"THE COMMITTEE BELIEVES THE FOLLOWING ACTIVITIES ARE ILLUSTRATIVE OF THOSE TO BE UNDERTAKEN TO COORDINATE AND OVERSEE INTERNATIONAL SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES AND PROGRAMS OF THE U. S. GOVERNMENT.

"(1) ESTABLISHMENT OF A MANAGEMENT INFORMATION SYSTEM TO INVENTORY ON A CURRENT BASIS ALL INTERNATIONAL SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES OF THE U. S. GOVERNMENT;

"(2) ESTABLISHMENT OF INTERAGENCY COORDINATING PROCEDURES;

"(3) DETACHMENT OF PERSONNEL FOR SHORT-TERM SERVICE IN AGENCIES OPERATING AND MANAGING INTERNATIONAL SCIENTIFIC OR TECHNOLOGICAL ACTIVITIES OR PROGRAMS;

"(4) CONDUCTING POLICY STUDIES ON THE POLITICAL IMPLICATIONS AS WELL AS SCIENTIFIC AND TECHNOLOGICAL BENEFITS AND RISKS ASSOCIATED WITH SPECIFIC SCIENTIFIC OR TECHNOLOGICAL PROGRAMS AND ACTIVITIES;

"(5) CONDUCTING POLICY AND TECHNICAL STUDIES ON THE APPLICATION OF INTERNATIONAL SCIENTIFIC OR TECHNOLOGICAL DEVELOPMENTS TO SPECIFIC DOMESTIC PROGRAMS OR ACTIVITIES OF THE U. S. GOVERNMENT; AND

"(6) PREPARING DIPLOMATIC INITIATIVES BASED ON DOMESTIC SCIENTIFIC OR TECHNOLOGICAL PROGRAMS OR ACTIVITIES OF THE U. S. GOVERNMENT.

"IN ADDITION TO THE EXPENDITURE OF FUNDS FOR COORDINATION AND OVERSIGHT OF INTERNATIONAL SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES OF THE U. S. GOVERNMENT, THE COMMITTEE INTENDS THAT SOME OF THE FUNDS AUTHORIZED BE EXPENDED TO OPERATE AND MANAGE INTERNATIONAL SCIENTIFIC OR TECHNOLOGICAL ACTIVITIES UNDERTAKEN PURSUANT TO INTERNATIONAL AGREEMENTS FOR SCIENTIFIC OR TECHNOLOGICAL COOPERATION.

"*** THE FOLLOWING ACTIVITIES ARE ILLUSTRATIVE OF OPERATIONAL OR MANAGERIAL ACTIVITIES THAT SHOULD BE UNDERTAKEN BY THE STATE DEPARTMENT:

"(1) RECRUITMENT, TRAINING AND ADMINISTRATIVE SUPPORT OF NON GOVERNMENTAL PARTICIPANTS IN INTERNATIONAL SCIENTIFIC OR TECHNOLOGICAL PROGRAMS OR ACTIVITIES;

"(2) TECHNICAL EVALUATIONS OF SPECIFIC SCIENTIFIC OR TECHNOLOGICAL ACTIVITIES; AND

"(3) FINANCIAL, PERSONNEL, ADMINISTRATIVE, AND TECHNICAL SUPPORT OF EXPERIMENTS, SOCIAL SCIENCE SURVEYS, SCIENTIFIC AND TECHNICAL CONFERENCES, EXCHANGE OF SCIENTIFIC OR TECHNICAL INFORMATION, AND RELATED ACTIVITIES." H.R. REP. NO. 95-1160, 95TH CONG., 2D SESS. 36-41 (MAY 15, 1978).

SUBSEQUENT TO THE INITIAL PASSAGE OF H.R. 12598, 96TH CONGRESS, BY THE HOUSE OF REPRESENTATIVES ON MAY 31, 1978, BUT BEFORE INITIAL PASSAGE BY THE SENATE ON JUNE 28, 1978 (WHICH DID NOT INCLUDE THE PROVISIONS OF TITLE V) AND THE ADOPTION OF THE CONFERENCE REPORT BY BOTH THE HOUSE (SEPTEMBER 19, 1978) AND THE SENATE (SEPTEMBER 20, 1978), SEVERAL OF THE PRIMARY HOUSE SPONSORS OF THE PROVISIONS OF TITLE V INCLUDED STATEMENTS IN THE CONGRESSIONAL RECORD FURTHER EXPLAINING ITS PURPOSES. ALTHOUGH THESE STATEMENTS HAVE LESS LEGAL WEIGHT THAN STATEMENTS MADE IN THE COURSE OF DEBATE OR IN COMMITTEE REPORTS, IT WOULD NOT BE IMPROPER FOR THE ADMINISTERING AGENCIES TO OBTAIN GUIDANCE FROM THEM IN IMPLEMENTING THE PROVISIONS OF TITLE V. WE INCLUDE HERE AN EXCERPT FROM ONE OF THE STATEMENTS OF CONGRESSMAN DANTE FASCELL, CHAIRMAN OF THE HOUSE SUBCOMMITTEE ON INTERNATIONAL OPERATIONS WHICH HELD HEARINGS ON TITLE V, BECAUSE OF THE DETAIL WITH WHICH IT DISCUSSES THE INTENDED RELATIONSHIP BETWEEN THE DEPARTMENT OF STATE AND OTHER DEPARTMENTS IN ADMINISTERING TITLE V:

"*** I UNDERSTAND THAT THERE HAVE BEEN SEVERAL CONCERNS RAISED AMONG VARIOUS AGENCIES WITH REGARD TO THE SCOPE AND INTENT OF TITLE V. SPECIFICALLY, I UNDERSTAND THAT THERE IS SOME CONCERN THAT TITLE V IS A 'BACK DOOR' ATTEMPT TO DRAFT NEW EXPORT CONTROLS. I ALSO UNDERSTAND THAT THERE IS CONCERN THAT TITLE V MIGHT GIVE STATE UNILATERAL VETO AUTHORITY OVER THE INTERNATIONAL ACTIVITIES OF OTHER AGENCIES. SOME OFFICIALS APPARENTLY FEAR THAT TITLE V WILL MEAN THAT ALL CABLES BEING SENT OVERSEAS WILL REQUIRE THE APPROVAL OF THE STATE DEPARTMENT. OTHERS ARE CONCERNED THAT THEY WILL HAVE TO PROVIDE THE STATE DEPARTMENT WITH COMPLETE SETS OF FILES ON THEIR RESEARCH PROGRAMS SO THAT STATE MAY PROPERLY ADVISE THEM AS TO THE INTERNATIONAL IMPLICATIONS OF SUCH ACTIVITIES. FINALLY, I AM TOLD THAT SOME AGENCIES FEAR STATE WILL USE THIS LEGISLATION AS AUTHORITY TO ESTABLISH ITS OWN TECHNICAL RESEARCH AND DEVELOPMENT LABORATORIES IN COMPETITION WITH EXISTING GOVERNMENT LABORATORIES.

"AS ONE OF SEVERAL COSPONSORS AND AS CHAIRMAN OF THE SUBCOMMITTEE WHICH RECOMMENDED INCLUSION OF TITLE V IN H.R. 12598, I WISH TO ASSURE THE MEMBERS THAT THE COMMITTEE NEVER HAD ANY OF THESE INTENTIONS IN MIND WHEN IT REPORTED TITLE V TO THE FLOOR, NOR ARE THEY CONTAINED IN TITLE V AS PASSED BY THE HOUSE. AS A MATTER OF FACT, I AM CONFIDENT THAT TITLE V WOULD NOT HAVE BEEN INTRODUCED AS SUCH IF THERE WAS ANY SUBSTANCE TO THESE POINTS.

"TITLE V IS NOT INTENDED TO BE INTERPRETED AS A SET OF EXPORT CONTROLS IN DISGUISE. TITLE V REFERS VERY SPECIFICALLY ONLY TO INTERNATIONAL SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES OF THE U. S. GOVERNMENT.

"TITLE V DOES NOT GIVE THE STATE DEPARTMENT UNILATERAL VETO AUTHORITY OVER THE INTERNATIONAL ACTIVITIES OF OTHER AGENCIES. THE COMMITTEE INTENDED THAT THE STATE DEPARTMENT BE FULLY INFORMED AND CONSULTED BEFORE ANY AGENCY UNDERTAKES INITIATIVES INVOLVING SCIENCE OR TECHNOLOGY SO THAT IT MIGHT ADVISE OTHER AGENCIES WITH RESPECT TO THE BROAD FOREIGN POLICY IMPLICATIONS OF THESE PROPOSED EXCHANGES OF INFORMATION, DATA, EQUIPMENT, OR PERSONNEL. IF AN AGENCY INSISTS ON IMPLEMENTING A PROGRAM TO WHICH THE STATE DEPARTMENT HAS OBJECTED, STATE SHOULD APPEAL TO THE PRESIDENT FOR MODIFICATION OF AN AGENCY'S PROPOSAL. SUCH AN APPEAL TO THE PRESIDENT OR THE WHITE HOUSE SHOULD BE MADE IN THE SAME MANNER AS SUCH ISSUES ARE CURRENTLY RESOLVED. TITLE V DOES NOT IN ANY WAY GRANT UNILATERAL VETO POWER TO THE STATE DEPARTMENT OVER ANOTHER AGENCY'S ACTIVITIES.

"TITLE V DOES NOT REQUIRE OTHER AGENCIES TO SEEK PRIOR APPROVAL FROM THE STATE DEPARTMENT FOR EACH CABLE SENT OVERSEAS ON MATTERS PERTAINING TO SCIENCE AND TECHNOLOGY (SIC). BECAUSE THE NATURE OF INTERNATIONAL SCIENTIFIC OR TECHNOLOGICAL ACTIVITIES REQUIRING COORDINATION AND OVERSIGHT UNDER TERMS OF THE BILL WILL VARY FROM AGENCY TO AGENCY, THE COMMITTEE INTENDED THAT STATE AND AFFECTED AGENCIES DEVELOP MUTUALLY ACCEPTABLE IMPLEMENTING PROCEDURES THAT WERE APPROPRIATE FOR BOTH THE AGENCIES INVOLVED AND THE KINDS OF ACTIVITIES TO BE COORDINATED AND OVERSEEN. IT IS REASONABLE THAT INITIATIVES WITH MAJOR POLITICAL RAMIFICATIONS AS DETERMINED BY THE STATE DEPARTMENT BE SUBJECT TO MORE FREQUENT COORDINATION AND OVERSIGHT REVIEWS BY STATE THAN LESS SENSITIVE INITIATIVES. HOWEVER, ONCE AN INITIATIVE HAS BEEN REVIEWED BY STATE FOR ITS CONSISTENCY WITH OVERALL U. S. FOREIGN POLICY OBJECTIVES, IT SHOULD NOT BE NECESSARY IN MOST INSTANCES, NOR IS IT REQUIRED UNDER TITLE V, FOR STATE TO READ AND APPROVE EVERY SINGLE CABLE SENT OVERSEAS.

"TITLE V DOES NOT REQUIRE AGENCIES TO FURNISH COMPLETE, CURRENT FILES TO THE STATE DEPARTMENT ON THEIR DOMESTIC RESEARCH AND DEVELOPMENT ACTIVITIES. THE COMMITTEE INTENDED THAT THERE BE A RULE OF REASON IN THE IMPLEMENTATION OF THE STATE DEPARTMENT'S RESPONSIBILITY FOR ADVISING OTHER AGENCIES WITH RESPECT TO THE INTERNATIONAL IMPLICATIONS OF THEIR DOMESTIC RESEARCH AND DEVELOPMENT ACTIVITIES. THE STATE DEPARTMENT SHOULD FOCUS ON THOSE PROGRAMS WHICH ON THE BASIS OF INTERNATIONAL REACTION OR ITS OWN PLANNING EFFORTS ARE THOUGHT TO POSE INTERNATIONAL PROBLEMS OR CREATE OPPORTUNITIES FOR DIPLOMATIC INITIATIVES.

"TITLE V DOES NOT REQUIRE THE STATE DEPARTMENT TO OPERATE OR MANAGE PROGRAMS WHICH HAVE BEEN DEVELOPED, INITIATED, AND IMPLEMENTED BY OTHER AGENCIES. THE COMMITTEE SPECIFICALLY EXCLUDED THE STATE DEPARTMENT FROM ATTEMPTING TO MANAGE OR OPERATE COOPERATIVE INTERNATIONAL PROGRAMS IN HIGHLY SPECIALIZED AREAS OF SCIENCE AND TECHNOLOGY SUCH AS DEFENSE RESEARCH AND DEVELOPMENT BEING CARRIED OUT JOINTLY WITHIN NATO. AT THE SAME TIME, THE COMMITTEE SOUGHT TO PRESERVE THE PRINCIPLE THAT STATE SHOULD KNOW ABOUT SUCH ACTIVITIES AND BE ABLE TO ADVISE OTHER AGENCIES ON THE OVERALL FOREIGN POLICY OBJECTIVES TO WHICH SUCH PROGRAMS SHOULD BE RELATED.

"TITLE V IS INTENDED TO INSURE THAT THE STATE DEPARTMENT IS INFORMED AND CONSULTED ABOUT INTERNATIONAL SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES WITH OVERALL U. S. FOREIGN POLICY OBJECTIVES. STATE MUST BE ABLE TO CARRY OUT FOUR FUNCTIONS: FIRST, STATE MUST BE ABLE TO CARRY OUT STATUTORY RESPONSIBILITIES FOR REPORTING INTERNATIONAL AGREEMENTS TO THE CONGRESS. SECOND, STATE SHOULD BE ABLE TO ADVISE OTHER AGENCIES WITH RESPECT TO THE INTERNATIONAL IMPLICATIONS OF THEIR SCIENTIFIC AND TECHNOLOGICAL ACTIVITIES. THIRD, STATE SHOULD PROVIDE INFORMATION TO OTHER AGENCIES ON FOREIGN SCIENTIFIC AND TECHNOLOGICAL DEVELOPMENTS THAT RELATE TO THEIR PROGRAMS. FOURTH, STATE SHOULD DEVELOP DIPLOMATIC INITIATIVES BASED ON U. S. GOVERNMENT SCIENCE AND TECHNOLOGY PROGRAMS.

"TITLE V AND THE ACCOMPANYING REPORT MAKE CLEAR THAT THE COMMITTEE INTENDS THAT THE DEPARTMENT OF STATE ASSUME GREATER RESPONSIBILITY FOR IMPLEMENTING FUTURE UMBRELLA-TYPE AGREEMENTS FOR SCIENTIFIC AND TECHNOLOGICAL COOPERATION BETWEEN THE UNITED STATES AND OTHER GOVERNMENTS THAT IT NEGOTIATES WHERE IT HAS THE EXPERTISE AND RESOURCES TO DO SO. THE COMMITTEE BELIEVES STATE SHOULD CONTINUE THE CURRENT PRACTICE OF RELYING ON OTHER AGENCIES TO IMPLEMENT SUCH AGREEMENTS WHERE IT LACKS THE RESOURCES TO IMPLEMENT FULLY SUCH AGREEMENTS, AND SPECIFICALLY DID NOT INCLUDE THE OPERATION OF LABORATORIES AS AN EXAMPLE OF PROGRAM OPERATION OR MANAGEMENT ACTIVITIES DESCRIBED IN ACTIVITIES LISTED IN THE SECTION-BY- SECTION ANALYSIS IN THE COMMITTEE REPORT. THE COMMITTEE CLEARLY DID NOT INTEND FOR STATE TO COMPETE WITH OTHER TECHNICAL AGENCIES IN IMPLEMENTING THESE AGREEMENTS, BUT RATHER THAT STATE ASSUME A GREATER ROLE IN MANAGING AND OPERATING FUTURE AGREEMENTS WHICH DO NOT REQUIRE IT TO FURNISH SPECIFIC TECHNICAL ADVICE, PERSONNEL, DATA, OR EQUIPMENT." 124 CONG. REC. H5587-H5588 (DAILY ED., JUNE 14, 1978). SEE ALSO, 124 CONG. REC. H5669- H5670 (DAILY ED., JUNE 15, 1978); 124 CONG. REC. E3410-E3412 (DAILY ED., JUNE 22, 1978); 124 CONG. REC. E3468 (DAILY ED., JUNE 26, 1978).

THERE IS LITTLE MORE WE CAN ADD ABOUT THE MEANING OF TITLE V TO WHAT HAS BEEN QUOTED ABOVE FROM THE HOUSE COMMITTEE REPORT AND CONGRESSMAN DANTE FASCELL. WE DO NOTE, HOWEVER, THAT SUBSECTION 503(A)(1) IS PREFACED BY THE PHRASE "NOTWITHSTANDING ANY OTHER PROVISION OF LAW," WHILE SUBSECTION 504(A) IS NOT. THEREFORE, THE PROVISIONS OF SUBSECTION 503(A)(1) WOULD PREVAIL OVER OTHER PROVISIONS OF LAW, INCLUDING SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, TO THE EXTENT OF ANY INCONSISTENCY. NEVERTHELESS, THE POSSIBILITY OF CONFLICT UNDER SUBSECTION 503(A)(1), WHICH ONLY REQUIRES INFORMING AND CONSULTING WITH THE DEPARTMENT OF STATE, WOULD APPEAR TO BE VERY SMALL.

THE GREATER POSSIBILITY OF CONFLICT WITH OTHER LAWS EXISTS UNDER SUBSECTION 504(A), WHICH GRANTS THE DEPARTMENT OF STATE "PRIMARY RESPONSIBILITY FOR COORDINATION AND OVERSIGHT" WITH RESPECT TO ALL MAJOR INTERNATIONAL SCIENCE OR TECHNOLOGY AGREEMENTS AND ACTIVITIES, BUT WHICH DOES NOT PROVIDE THAT ITS PROVISIONS PREVAIL "NOTWITHSTANDING ANY OTHER PROVISION OF LAW." IN PARTICULAR, WITH RESPECT TO FORMULATION OF POLICY RELATING TO INTERNATIONAL ENERGY RESEARCH AND DEVELOPMENT HAVING A DIRECT IMPACT ON ENERGY IN THE UNITED STATES, SOME POTENTIAL FOR CONFLICT MAY EXIST.

AS DISCUSSED EARLIER, ENERGY WAS GRANTED RESPONSIBILITY TO "ESTABLISH AND IMPLEMENT" SUCH POLICIES IN "COORDINATION" WITH THE DEPARTMENTS OF STATE, TREASURY AND DEFENSE BY SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, ALTHOUGH THE PRECISE COVERAGE OF THIS AUTHORITY MAY NOT BE CLEAR. ON THE OTHER HAND, THE HOUSE COMMITTEE REPORT ON TITLE V CONTEMPLATES THE DEPARTMENT OF STATE'S.

"CONDUCTING POLICY STUDIES ON THE POLITICAL IMPLICATIONS AS WELL AS SCIENTIFIC AND TECHNOLOGICAL BENEFITS AND RISKS ASSOCIATED WITH SPECIFIC SCIENTIFIC OR TECHNOLOGICAL PROGRAMS AND ACTIVITIES; AND

"CONDUCTING POLICY AND TECHNICAL STUDIES ON THE APPLICATION OF INTERNATIONAL SCIENTIFIC OR TECHNOLOGICAL DEVELOPMENTS TO SPECIFIC DOMESTIC PROGRAMS OR ACTIVITIES OF THE U. S. GOVERNMENT." THERE IS NO NECESSARY CONFLICT, HOWEVER, BECAUSE WE CONCLUDED THAT SUBSECTION 102(10) DID NOT PRECLUDE POLICY INITIATIVES BY AGENCIES OTHER THAN ENERGY.

SHOULD A CONFLICT ARISE BETWEEN THE STATE DEPARTMENT AND ENERGY OVER POLICY RELATING TO INTERNATIONAL ENERGY RESEARCH AND DEVELOPMENT HAVING A DIRECT IMPACT ON ENERGY IN THE UNITED STATES AND FOR WHICH ENERGY HAS RESPONSIBILITY UNDER SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, SUBSECTION 504(A) OF THE FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEAR 1979, SUPRA, WOULD NOT GIVE THE STATE DEPARTMENT UNILATERAL VETO AUTHORITY, AT LEAST ACCORDING TO CONGRESSMAN FASCELL. HE SAID:

"*** IF AN AGENCY INSISTS ON IMPLEMENTING A PROGRAM TO WHICH THE STATE DEPARTMENT HAS OBJECTED, STATE SHOULD APPEAL TO THE PRESIDENT FOR MODIFICATION OF AN AGENCY'S PROPOSAL. SUCH AN APPEAL TO THE PRESIDENT OR THE WHITE HOUSE SHOULD BE MADE IN THE SAME MANNER AS SUCH ISSUES ARE CURRENTLY RESOLVED. TITLE V DOES NOT IN ANY WAY GRANT UNILATERAL VETO POWER TO THE STATE DEPARTMENT OVER ANOTHER AGENCY'S ACTIVITIES."

THE REASONING OF CONGRESSMAN FASCELL WOULD SEEM TO APPLY WITH EQUAL VALIDITY TO ANY CONFLICT THAT AROSE BETWEEN THE DEPARTMENT OF STATE AND ENERGY ASSOCIATED WITH APPLYING THE DISTINCTION COORDINATION AND OVERSIGHT VERSES PROGRAM OPERATION AND MANAGEMENT IN RELATION TO INTERNATIONAL ENERGY RESEARCH AND DEVELOPMENT PROJECTS. THE ROLE OF THE PRESIDENT IN THE INTERPRETATION AND APPLICATION OF SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, WILL BE DISCUSSED MORE FULLY BELOW IN CONNECTION WITH THE ROLE OF THE NATIONAL SECURITY COUNCIL.

NEVERTHELESS, IT WAS CLEARLY CONTEMPLATED BY THE HOUSE COMMITTEE AND CONGRESSMAN FASCELL THAT THESE CONFLICTS WOULD BE MINIMIZED BY THE DEVELOPMENT OF MUTUALLY ACCEPTABLE INTERAGENCY COORDINATING AND IMPLEMENTING PROCEDURES THAT ARE APPROPRIATE FOR BOTH THE AGENCIES INVOLVED AND THE KINDS OF ACTIVITIES TO BE COORDINATED AND OVERSEEN. AGAIN, PROCEDURES THAT THE DEPARTMENT OF STATE AND ENERGY MIGHT DEVELOP FOR FULFILLING THIS FUNCTION SHOULD BE GIVEN DUE DEFERENCE AS LONG AS CONSISTENT WITH LAW. UDALL V. TALLMANN, SUPRA.

RELATIONSHIP BETWEEN NATIONAL SECURITY COUNCIL AND ENERGY

THE NATIONAL SECURITY COUNCIL IS AN ENTITY CREATED BY STATUTE IN 50 U.S.C. SEC. 402:

"(A) ESTABLISHMENT; PRESIDING OFFICER; FUNCTIONS; COMPOSITION

"THERE IS ESTABLISHED A COUNCIL TO BE KNOWN AS THE NATIONAL SECURITY COUNCIL (HEREINAFTER IN THIS SECTION REFERRED TO AS THE 'COUNCIL').

"THE PRESIDENT OF THE UNITED STATES SHALL PRESIDE OVER MEETINGS OF THE COUNCIL: PROVIDED, THAT IN HIS ABSENCE HE MAY DESIGNATE A MEMBER OF THE COUNCIL TO PRESIDE IN HIS PLACE.

"THE FUNCTION OF THE COUNCIL SHALL BE TO ADVISE THE PRESIDENT WITH RESPECT TO THE INTEGRATION OF DOMESTIC, FOREIGN, AND MILITARY POLICIES RELATING TO THE NATIONAL SECURITY SO AS TO ENABLE THE MILITARY SERVICES AND THE OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT TO COOPERATE MORE EFFECTIVELY IN MATTERS INVOLVING THE NATIONAL SECURITY.

"THE COUNCIL SHALL BE COMPOSED OF -

"(1) THE PRESIDENT; "(2) THE VICE PRESIDENT; "(3) THE SECRETARY OF STATE "(4) THE SECRETARY OF DEFENSE; "(5) THE DIRECTOR FOR MUTUAL SECURITY; (FN1) "(6) THE CHAIRMAN OF THE NATIONAL SECURITY RESOURCES BOARD; (FN1) AND "(7) THE SECRETARIES AND UNDER SECRETARIES OF OTHER EXECUTIVE DEPARTMENTS AND OF THE MILITARY DEPARTMENTS, THE CHAIRMAN OF THE MUNITIONS BOARD, AND THE CHAIRMAN OF THE RESEARCH AND DEVELOPMENT BOARD, WHEN APPOINTED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO SERVE AT HIS PLEASURE. (FN2)

"(B) ADDITIONAL FUNCTIONS

"IN ADDITION TO PERFORMING SUCH OTHER FUNCTIONS AS THE PRESIDENT MAY DIRECT, FOR THE PURPOSE OF MORE EFFECTIVELY COORDINATING THE POLICIES AND FUNCTIONS OF THE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT RELATING TO THE NATIONAL SECURITY, IT SHALL, SUBJECT TO THE DIRECTION OF THE PRESIDENT, BE THE DUTY OF THE COUNCIL -

"(1) TO ASSESS AND APPRAISE THE OBJECTIVES, COMMITMENTS, AND RISKS OF THE UNITED STATES IN RELATION TO OUR ACTUAL AND POTENTIAL MILITARY POWER, IN THE INTEREST OF NATIONAL SECURITY, FOR THE PURPOSE OF MAKING RECOMMENDATIONS TO THE PRESIDENT IN CONNECTION THEREWITH; AND

"(2) TO CONSIDER POLICIES ON MATTERS OF COMMON INTEREST TO THE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT CONCERNED WITH THE NATIONAL SECURITY, AND TO MAKE RECOMMENDATIONS TO THE PRESIDENT IN CONNECTION THEREWITH.

"(D) RECOMMENDATIONS AND REPORTS

"THE COUNCIL SHALL, FROM TIME TO TIME, MAKE SUCH RECOMMENDATIONS, AND SUCH OTHER REPORTS TO THE PRESIDENT AS IT DEEMS APPROPRIATE OR AS THE PRESIDENT MAY REQUIRE."

THUS THE COUNCIL IS BASICALLY AN INTERAGENCY ENTITY WHOSE MEETINGS ARE PRESIDED OVER BY THE PRESIDENT, AND WHOSE MEMBERSHIP CONSISTS ONLY OF THE PRESIDENT, VICE PRESIDENT, SECRETARY OF STATE, AND SECRETARY OF DEFENSE. THE DIRECTOR OF CENTRAL INTELLIGENCE AND THE CHAIRMAN, JOINT CHIEFS OF STAFF, ARE STATUTORY ADVISERS. 50 U.S.C. SEC. 403(D) AND 10 U.S.C. SEC. 141(B). ITS CHIEF FUNCTION IS "TO ADVISE THE PRESIDENT WITH RESPECT TO THE INTEGRATION OF DOMESTIC, FOREIGN, AND MILITARY POLICIES RELATING TO THE NATIONAL SECURITY SO AS TO ENABLE THE MILITARY SERVICES AND OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT TO COOPERATE MORE EFFECTIVELY."

NEITHER THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, NOR ANY OTHER STATUTE OF WHICH WE ARE AWARE ADDRESSES THE ISSUE OF THE PRECISE RELATIONSHIP BETWEEN THE COUNCIL AND ENERGY. NOR DOES THE TERM "NATIONAL SECURITY" HAVE CLEARLY ESTABLISHED BOUNDARIES. UNDOUBTEDLY, SOME POLICIES INVOLVING INTERNATIONAL ENERGY ISSUES HAVING A DIRECT IMPACT ON ENERGY IN THE UNITED STATES HAVE A SUBSTANTIAL IMPACT ON THE NATIONAL SECURITY. THE EXTENT THAT ENERGY AND THE COUNCIL HAVE EXERCISED JUDGMENT IN DIVIDING RESPONSIBILITIES FOR POLICY FORMULATION AND COORDINATION IN THESE INSTANCES, SUCH JUDGMENT IS ENTITLED TO DEFERENCE TO THE EXTENT IT IS COMPATIBLE WITH THE LAW, EVEN IF ON SOME ISSUES GAO MIGHT HAVE RECOMMENDED A DIFFERENT DIVISION OF RESPONSIBILITIES. UDALL V. TALLMANN, SUPRA. AS WE CONCLUDED EARLIER, SUBSECTION 102(10) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, DOES NOT PRECLUDE AGENCIES OTHER THAN ENERGY FROM UNDERTAKING INTERNATIONAL ENERGY POLICY STUDIES, AND THERE IS INSUFFICIENT SUPPORT IN ITS LEGISLATIVE HISTORY TO CONCLUDE THAT SUBSECTION 102(10) SUPERSEDES PROVISIONS OF OTHER STATUTES ASSIGNING RESPONSIBILITIES TO AGENCIES OTHER THAN ENERGY WHICH IMPACT ON INTERNATIONAL ENERGY ISSUES HAVING A DIRECT IMPACT ON ENERGY IN THE UNITED STATES.

WE FOUND NO DISCUSSION OR CONCERN IN THE LEGISLATIVE HISTORY OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, SUPRA, ABOUT THE THEN-EXISTING INVOLVEMENT OR ROLE OF THE COUNCIL IN THE FORMULATION OF INTERNATIONAL ENERGY POLICY. NEVERTHELESS, TO A CONSIDERABLE EXTENT THE COUNCIL IS STRUCTURED TO ACT ALMOST AS AN ARM OF THE PRESIDENT TO ASSIST HIM IN THE FULFILLMENT OF HIS CONSTITUTIONAL AND STATUTORY RESPONSIBILITIES RELATING TO THE NATIONAL SECURITY. WE FOUND NUMEROUS INDICATIONS OF A CONGRESSIONAL DESIRE THAT THE PRESIDENT AND THE EXECUTIVE OFFICE WITHIN THE WHITE HOUSE HAVE A SUBSTANTIAL ROLE IN ENERGY POLICY FORMULATION, DESPITE THE CREATION OF THE NEW DEPARTMENT OF ENERGY. WE FOUND NO EVIDENCE OF A CONGRESSIONAL DESIRE TO REDUCE THIS ROLE. FOR EXAMPLE, SECTION 708 OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, 42 U.S.C.A. SEC. 7298, PROVIDES:

"*** NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO LIMIT, CURTAIL, ABOLISH, OR TERMINATE ANY FUNCTION OF, OR AUTHORITY AVAILABLE TO, THE PRESIDENT WHICH HE HAD IMMEDIATELY BEFORE THE EFFECTIVE DATE OF THE ACT; OR TO LIMIT, CURTAIL, ABOLISH OR TERMINATE HIS AUTHORITY TO DELEGAE, REDELEGATE, OR TERMINATE ANY DELEGATION OF FUNCTIONS."

IN ADDITION, AS YOU KNOW, THE DEPARTMENT OF ENERGY ORGANIZATION ACT DID NOT CONTINUE THE STATUTORY ENERGY RESOURCES COUNCIL (42 U.S.C. SEC. 5818), WHICH HAD BEEN ONE MECHANISM FOR INTERDEPARTMENTAL COORDINATION. THE PRESIDENT PROPOSED TO REPLACE IT WITH A NON STATUTORY INTERDEPARTMENTAL COORDINATING BODY, ESTABLISHED BY EXECUTIVE ORDER AND CHAIRED BY THE SECRETARY OF ENERGY. MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING TO CONGRESS THE PROPOSED DEPARTMENT OF ENERGY ORGANIZATION ACT, H. DOC. NO. 95-91, 95TH CONG., 1ST SESS. IV AND V (MARCH 1, 1977). HOWEVER, THERE WAS A MOVEMENT IN CONGRESS, LED BY SENATOR CHARLES PERCY WITH THE ASSISTANCE OF THE LIBRARY OF CONGRESS, TO CREATE BY STATUTE IN THE WHITE HOUSE AN ENERGY POLICY COUNCIL SIMILAR TO THE COUNCIL OF ECONOMIC ADVISERS, AND TO REDUCE THE ROLE OF THE DEPARTMENT OF ENERGY BY DELETING THE PROPOSED UNDER SECRETARY FOR POLICY AND EVALUATION. HEARINGS ON S.826 AND S.591 BEFORE THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS, SUPRA, AT 195, 200 202. THE REASON GIVEN BY SENATOR PERCY WAS:

"*** LIKE ECONOMIC POLICIES, ENERGY POLICY FORMATION WOULD SEEM TO ME TOO IMPORTANT AND FAR-REACHING TO BE LEFT TO JUST ONE SINGLE DEPARTMENT BECAUSE IT DOES INTERRELATE WITH SO MANY OF THE DEPARTMENTS OF GOVERNMENT." ID., AT 200.

THE GENERAL ACCOUNTING OFFICE ALSO SUPPORTED A GREATER ROLE FOR THE EXECUTIVE OFFICE OF THE PRESIDENT. COMPTROLLER GENERAL ELMER STAATS TESTIFIED THAT:

"WE BELIEVE THERE IS A NEED FOR A HIGH-LEVEL COORDINATING COUNCIL IN THE EXECUTIVE OFFICE OF THE PRESIDENT. THE ADMINISTRATION'S PROPOSAL ABOLISHES THE EXISTING ENERGY RESOURCES COUNCIL. THERE WILL ALWAYS REMAIN ENERGY AND ENERGY-RELATED ISSUES WHICH ARE NOT WITHIN ANY NEW DEPARTMENT OF ENERGY. ENERGY IS SUCH A PERVASIVE ISSUE THAT NO ORGANIZATIONAL STRUCTURE COULD CAPTURE ALL OF ITS PARTS. A HIGH LEVEL COUNCIL COULD COORDINATE ALL FEDERAL ACTIVITIES RELATED TO ENERGY. IT SHOULD BE HEADED BY THE SECRETARY OF THE DEPARTMENT OF ENERGY.

"EVEN MORE IMPORTANT THAN COORDINATING ENERGY ISSUES, HOWEVER, IS THE SIMPLE FACT THAT, AS A NATION, WE HAVE MANY MULTIPLE GOALS, AND EACH IS SOUGHT TO BE REACHED SIMULTANEOUSLY. PROVIDING A STRONG, VISIBLE INTERFACE AT THE HIGHEST LEVEL TO AIR DIFFERENCES OF OPINION AND ARRIVE AT A CONSENSUS ON THE RECONCILIATION OF THOSE GOALS WITH ENERGY GOALS SEEMS TO US TO BE A HIGH ORDER OF PRIORITY ON THE NATION'S AGENDA. WE BELIEVE, THEREFORE, THAT THE CONGRESS SHOULD STATUTORILY PROVIDE FOR SUCH A COUNCIL IN ANY LEGISLATION WHICH WOULD CREATE A DEPARTMENT OF ENERGY."

STATEMENT OF ELMER B. STAATS, COMPTROLLER GENERAL OF THE UNITED STATES, BEFORE THE SUBCOMMITTEE ON LEGISLATION AND NATIONAL SECURITY, HOUSE COMMITTEE OF GOVERNMENT OPERATIONS, ON ENERGY REORGANIZATION LEGISLATION (APRIL 19, 1977); HEARINGS ON S.826 AND S.591 BEFORE THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS, SUPRA, AT 578 AND 579. SEE ALSO, ID. AT 586 AND 587. THESE VIEWS WERE ALSO CONTAINED AS A RECOMMENDATION IN THE REPORT "ENERGY POLICY DECISIONMAKING, ORGANIZATION, AND NATIONAL ENERGY GOALS," (EMD-77-31, MARCH 24, 1977), REPRINTED IN THE SENATE HEARINGS BEGINNING AT 605.

ULTIMATELY, AN ENERGY POLICY COUNCIL WAS NOT CREATED. THE PRESIDENT ESTABLISHED BY EXECUTIVE ORDER, IN ACCORDANCE WITH WHAT HE HAD ORIGINALLY PROPOSED, AN ENERGY COORDINATING COMMITTEE, CONSISTING OF REPRESENTATIVES OF 23 DEPARTMENTS AND AGENCIES AND CHAIRED BY THE SECRETARY OF ENERGY. EXEC. ORDER NO. 12083, 42 U.S.C.A. SEC. 7101, NOTE. THE CONGRESS, ON THE OTHER HAND, HOWEVER, REQUIRED THE PREPARATION AND UPDATING OF A NATIONAL ENERGY POLICY PLAN TO BE BIENNIALLY TRANSMITTED TO THE CONGRESS.

MEMBERS OF YOUR STAFF HAVE SPECIFICALLY REQUESTED THAT WE ADDRESS THE ISSUE OF THE PREPARATION OF THE NATIONAL ENERGY POLICY PLAN, BECAUSE OF CONCERN THAT ITS PREPARATION WAS BEING SUPERVISED BY THE DOMESTIC POLICY STAFF IN THE EXECUTIVE OFFICE OF THE PRESIDENT RATHER THAN BY ENERGY. (SEE ALSO, PP. 3-8 AND 3-14 OF THE REPORT.) WE HAVE CONCLUDED THAT SUPERVISION OF THE PREPARATION OF THE NATIONAL ENERGY POLICY PLAN BY REPRESENTATIVES IN THE EXECUTIVE OFFICE OF THE PRESIDENT, RATHER THAN ENERGY, IS CONSISTENT WITH THE LANGUAGE AND LEGISLATIVE HISTORY OF SECTION 801 OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, 42 U.S.C. SEC. 7321 (SUPP. I 1977). THAT SECTION SPECIFICALLY LODGES IN THE PRESIDENT RESPONSIBILITY FOR THE PREPARATION AND TRANSMITTAL OF THE NATIONAL ENERGY POLICY PLAN.

THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS SPECIFICALLY ADDRESSED THE REASON WHY IT CHOSE THE PRESIDENT AS THE RESPONSIBLE OFFICIAL FOR PREPARATION OF THE NATIONAL ENERGY POLICY PLAN RATHER THAN THE SECRETARY OF ENERGY:

"*** BECAUSE OF THE PERVASIVENESS OF THE ENERGY PROBLEM AND THE BROAD NATURE OF ITS SOLUTIONS, THE COMMITTEE DECIDED TO VEST THIS ENERGY PLANNING AUTHORITY DIRECTLY IN THE PRESIDENT. NO SINGLE CABINET OFFICER, EVEN THE SECRETARY OF ENERGY, CAN BE EXPECTED TO DETERMINE POLICY AND PLANNING FOR THE WHOLE FEDERAL GOVERNMENT'S RESPONSE TO OUR CONTINUING ENERGY PROBLEM. ***"

"THROUGHOUT THIS PLANNING PROCESS, THE COMMITTEE BELIEVES THE PRESIDENT WILL RELY HEAVILY ON THE ADVICE AND EXPERTISE OF HIS SECRETARY OF ENERGY. THE SECRETARY WILL BE A PRINCIPAL ADVISER ON THE FORMULATION OF THE PLAN, AND ON THE INTEGRITY OF THE PLAN, JUST AS HE WILL BE THE PRINCIPAL EXECUTIVE OFFICIAL WHO MUST DEFEND THE PRESIDENT'S PROPOSED PLAN BEFORE CONGRESS AND THE COUNTRY. BECAUSE OF THE IMPORTANCE OF THE NATIONAL ENERGY POLICY PLAN TO THE COUNTRY, THE COMMITTEE BELIEVED IT BEST TO VEST THESE AUTHORITIES DIRECTLY IN THE PRESIDENT.

"SECTION 704 (WHICH WAS ULTIMATELY NOT INCLUDED IN THE LEGISLATION) WOULD ENCOURAGE THE ESTABLISHMENT WITHIN THE EXECUTIVE OFFICE OF THE PRESIDENT OF AN ORGANIZATIONAL STRUCTURE TO CARRY OUT THE PURPOSES OF THIS TITLE. THE STRUCTURE SHOULD BE DESIGNED SO THAT IT MAY READILY BE ENLARGED IN THE FUTURE TO DEAL WITH PLANNING IN AREAS OTHER THAN ENERGY. "AT THIS TIME, THE COMMITTEE ENDORSES THE CONCEPT OF AN ENERGY POLICY COUNCIL AS ONE OPTION TO BE CONSIDERED BY THE PRESIDENT IN ESTABLISHING AN ORGANIZATIONAL MECHANISM TO ASSIST HIM IN RELATING ENERGY GOALS TO OTHER NATIONAL GOALS, TO HELP HIM IMPLEMENT THE PLANNING PROCEDURES DESCRIBED IN THIS SECTION, AND TO FORMULATE ENERGY POLICY RECOMMENDATIONS FOR THIS CONSIDERATION. SUCH AN ORGANIZATIONAL MECHANISM COULD OPERATE FOR ENERGY MATTERS IN A MANNER ANALOGOUS TO THE WAY THE COUNCIL ON ECONOMIC ADVISORS FUNCTIONS FOR ECONOMIC ISSUES. ANOTHER OPTION MIGHT BE TO EXPAND THE DOMESTIC POLICY STAFF OR THE OFFICE OF MANAGEMENT AND BUDGET TO COORDINATE ENERGY PLANNING AND POSSIBLY ADDITIONAL PLANNING ACTIVITIES.

"WHAT IS CRITICAL IN THE COMMITTEE'S VIEW IS THAT THE PLANNING FUNCTION MUST INVOLVE INTEGRATED ANALYSIS. THE FOCUS MUST BE ON COORDINATION OF THE MANY DISPARATE VIEWPOINTS WITHIN THE EXECUTIVE BRANCH. THUS ENERGY PLANNING SHOULD NOT BE A FUNCTION OF THE DEPARTMENT OF ENERGY ALONE, JUST AS AGRICULTURAL PLANNING SHOULD NOT BE THE EXCLUSIVE PRESERVE OF THE AGRICULTURE DEPARTMENT. THE COMMITTEE HAS CONCLUDED THAT THE LOGICAL LOCATION OF THE PLANNING FUNCTION IS IN THE EXECUTIVE OFFICE OF THE PRESIDENT.

"THERE PRESENTLY IS SOME PLANNING ACTIVITY IN GOVERNMENT WHICH IS NOT INTEGRATED. MOST OF THE DEPARTMENTS AND OTHER EXECUTIVE AGENCIES HAVE PLANNING AND EVALUATION DIVISIONS WHICH HAVE SET DIRECTIONS AND LONG-TERM STRATEGIES BUT WITH AN INEVITABLE AGENCY BIAS. THERE IS ALSO A CONSIDERABLE AMOUNT OF INTEGRATED ANALYSIS WHICH IS NOT LONG-TERM. THE OFFICE OF MANAGEMENT AND BUDGET AND THE DOMESTIC POLICY STAFF BOTH HAVE AS A PRIMARY MISSION THE COORDINATION OF POLICIES ORIGINATING AT THE DEPARTMENT LEVEL SO THAT THEY SUIT 'THE PRESIDENT'S PROGRAM.' WHAT IS MISSING IS POLICY DEVELOPMENT AND ANALYSIS WHICH IS BOTH LONG-TERM AND INTEGRATED. TITLE VII (NOW TITLE VIII) IS DESIGNED TO FILL THAT GAP. REP. NO. 95-164, SUPRA, AT 59, 62 AND 63.

IN PARTIAL SUMMARY, THEREFORE, WE ARE NOT IN A POSITION TO DESCRIBE IN A CONCISE SENTENCE THE PRECISE RELATIONSHIP BETWEEN THE NATIONAL SECURITY COUNCIL AND THE DEPARTMENT OF ENERGY REGARDING INTERNATIONAL ENERGY POLICY FORMULATION, SINCE NO STATUTE OR LEGISLATIVE HISTORY OF WHICH WE ARE AWARE ADDRESSES THE ISSUE IN THAT FASHION. HOWEVER, WE CAN SAY WE FOUND NO INDICATION OF CONGRESSIONAL INTENT IN THE LEGISLATIVE HISTORY OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT TO REDUCE THE ROLE OF THE PRESIDENT OR THE EXECUTIVE OFFICE OF THE PRESIDENT IN THE FORMULATION OF ENERGY POLICY. THIS WOULD ENCOMPASS THE NATIONAL SECURITY COUNCIL, ALTHOUGH THE ROLE OF THE COUNCIL WAS NOT ADDRESSED SPECIFICALLY. MORE PARTICULARLY, WE CANNOT AGREE WITH THE ASSUMPTION OR STATEMENTS IN THE SUBJECT REPORT (SEE, E.G., PP. 1-6, 3 1, 3-4, 3-15, AND I-32 OF THE REPORT) EITHER IMPLICITLY OR EXPLICITLY CRITICIZING THE COUNCIL FOR ASSUMING LEADERSHIP REGARDING CERTAIN INTERNATIONAL ENERGY POLICIES, WITHOUT ANALYZING WHETHER THE ISSUES INVOLVED HAVE LEGITIMATE NATIONAL SECURITY IMPACTS. TO THE EXTENT THAT THEY DO, DUE DEFERENCE SHOULD BE GIVEN TO THE JUDGMENTS OF THE COUNCIL AND ENERGY IN COORDINATING RESPONSIBILITIES, AS LONG AS THEIR ACTIONS WERE COMPATIBLE WITH LAW. UDALL V. TALLMANN, SUPRA. THIS INCLUDES SOME DEFERENCE TO THE JUDGMENTS OF THESE AGENCIES AS TO WHETHER AN ISSUE HAS LEGITIMATE NATIONAL SECURITY IMPACTS.

ACCESS TO NATIONAL SECURITY COUNCIL AND OTHER RECORDS

AS A SEPARATE MATTER, YOU REQUESTED A REVIEW OF THE LEGAL ASPECTS OF YOUR DISCUSSION OF THE ACCESS TO RECORDS PROBLEMS ASSOCIATED WITH THE SUBJECT REPORT, ESPECIALLY IN VIEW OF SECTION 102 OF THEN PENDING S.1878, 96TH CONGRESS. AS YOU KNOW, THIS LANGUAGE HAS SINCE BEEN ENACTED AS SECTION 102 OF THE GENERAL ACCOUNTING OFFICE ACT OF 1980, SUPRA.

MANY OF THE KINDS OF ACCESS IMPEDIMENTS DISCUSSED IN THE SUBJECT REPORT ARE IDENTICAL OR SIMILAR TO THOSE EXAMPLES SUPPLIED TO THE CONGRESS BY THE GENERAL ACCOUNTING OFFICE DURING CONSIDERATION OF S.1878. SEE S. REP. NO. 96-570, 96TH CONG., 2D SESS. 22-27 (FEBRUARY 8, 1980). ANOTHER INSTANCE OF SIMILAR DIFFICULTIES INVOLVING THE NATIONAL SECURITY COUNCIL OCCURRED DURING CERTAIN REVIEWS ASSOCIATED WITH THE CAMBODIAN SEIZURE OF THE U. S. MERCHANT SHIP MAYAGUEZ. SEE "THE SEIZURE OF THE S.S. MAYAGUEZ," CASES IN ACCOUNTABILITY: THE WORK OF THE GAO 203-225 (1979). AS YOU KNOW, SECTION 102 OF THE GENERAL ACCOUNTING OFFICE ACT OF 1980, SUPRA, WAS INTENDED TO PROVIDE A MECHANISM FOR RESOLVING THESE ACCESS PROBLEMS.

SECTION 102 IS AN AMENDMENT TO SECTION 313 OF THE BUDGET AND ACCOUNTING ACT, 1921, 31 U.S.C. SEC. 54, DEALING WITH THE ENFORCEMENT OF OUR ACCESS TO RECORDS AUTHORITIES. AS ENACTED, IT PROVIDED, IN PART:

"(B)(1) WHEN ACCESS TO ANY BOOKS, DOCUMENTS, PAPERS, OR RECORDS OF ANY DEPARTMENT OR ESTABLISHMENT IS NOT MADE AVAILABLE WITHIN A REASONABLE PERIOD OF TIME, THE COMPTROLLER GENERAL IN HIS DISCRETION MAY MAKE A WRITTEN REQUEST TO THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED. ANY SUCH REQUEST SHALL SET FORTH ANY AUTHORITY IN ADDITION TO SUBSECTION (A) FOR SUCH ACCESS AND THE REASONS SUCH ACCESS IS DESIRED. THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED SHALL HAVE A PERIOD OF TWENTY DAYS FROM THE DATE OF RECEIPT TO RESPOND TO THE WRITTEN REQUEST OF THE COMPTROLLER GENERAL. THE RESPONSE SHALL DESCRIBE ANY BOOKS, DOCUMENTS, PAPERS, OR RECORDS WITHHELD AND THE REASONS THEREFOR. IF WITHIN SUCH TWENTY-DAY PERIOD FULL ACCESS TO SUCH BOOKS, DOCUMENTS, PAPERS, OR RECORDS HAS NOT BEEN AFFORDED THE COMPTROLLER GENERAL OR ANY OF HIS DESIGNATED ASSISTANTS OR EMPLOYEES, THE COMPTROLLER GENERAL MAY FILE A WRITTEN REPORT OF THE MATTER WITH THE PRESIDENT OF THE UNITED STATES, THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET, THE ATTORNEY GENERAL, THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED, AND WITH THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT OF THE SENATE.

"(2) SUBJECT TO SUBSECTION (D) THE COMPTROLLER GENERAL, THROUGH ANY ATTORNEY DESIGNATED BY HIM IN WRITING, MAY, AFTER TWENTY CALENDAR DAYS AFTER THE FILING OF A WRITTEN REPORT UNDER PARAGRAPH (1), APPLY TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR ANY ORDER REQUIRING THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED TO PRODUCE THE MATERIAL WITHHELD. THE ATTORNEY GENERAL IS AUTHORIZED TO REPRESENT THE DEFENDANT OFFICIAL IN SUCH PROCEEDINGS. ANY FAILURE TO OBEY AN ORDER OF THE COURT UNDER THIS SUBSECTION MAY BE TREATED BY THE COURT AS A CONTEMPT THEREOF.

"(D) THE COMPTROLLER GENERAL MAY NOT BRING AN ACTION UNDER SUBSECTION (B) FOR AN ORDER *** REQUIRING THE PRODUCTION OF MATERIAL -

"(1) IF SUCH MATERIAL RELATES TO ACTIVITIES DESIGNATED BY THE PRESIDENT AS BEING FOREIGN INTELLIGENCE OR FOREIGN COUNTERINTELLIGENCE ACTIVITIES;

"(2) IF SUCH MATERIAL IS SPECIFICALLY EXEMPTED FROM DISCLOSURE TO THE COMPTROLLER GENERAL BY STATUTE PROVIDED THAT SUCH STATUTE (A) REQUIRES THAT THE MATERIAL BE WITHHELD FROM THE COMPTROLLER GENERAL IN SUCH A MANNER AS TO LEAVE NO DISCRETION ON THE ISSUE, OR (B) ESTABLISHES PARTICULAR CRITERIA FOR WITHHOLDING FROM THE COMPTROLLER GENERAL OR REFERS TO PARTICULAR TYPES OF MATTERS TO BE WITHHELD FROM THE COMPTROLLER GENERAL; OR

"(3) IF THE PRESIDENT OR THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET WITHIN TWENTY DAYS AFTER THE FILING OF A REPORT UNDER SUBSECTION (B)(1), CERTIFIES IN WRITING TO THE COMPTROLLER GENERAL, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, AND THE PRESIDENT OF THE SENATE, THAT (A) SUCH MATERIAL CONSISTS OF MATTERS WHICH COULD BE WITHHELD FROM DISCLOSURE UNDER SECTION 552(B)(5) OR 552(B)(7), OF TITLE 5, U.S.C. AND (B) THE DISCLOSURE OF SUCH MATERIAL TO THE COMPTROLLER GENERAL COULD REASONABLY BE EXPECTED TO SUBSTANTIALLY IMPAIR THE OPERATONS OF THE FEDERAL GOVERNMENT. SUCH CERTIFICATION SHALL BE NONDELEGABLE BY THE PRESIDENT OR BY THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET AND SHALL BE ACCOMPANIED BY A FULL EXPLANATION OF THE RATIONALE THEREFOR.

"(E) ANY WRITTEN INFORMATION, BOOKS, DOCUMENTS, PAPERS, OR RECORDS MADE AVAILABLE TO THE COMPTROLLER GENERAL PURSUANT TO THIS SECTION SHALL BE SUBJECT TO THE SAME LEVEL OF CONFIDENTIALITY AS IS REQUIRED OF THE AGENCY FROM WHICH OBTAINED. THE OFFICERS AND EMPLOYEES OF THE GENERAL ACCOUNTING OFFICE SHALL BE SUBJECT TO THE SAME PENALTIES PRESCRIBED BY STATUTE FOR UNAUTHORIZED DISCLOSURE OR USE AS THE OFFICERS OR EMPLOYEES OF THE AGENCY FROM WHICH SUCH MATERIAL WAS OBTAINED. INFORMATION DESCRIBED IN SECTION 552(B)(6) OF TITLE 5 OF THE U.S.C. OBTAINED BY THE COMPTROLLER GENERAL SHALL BE MAINTAINED IN A MANNER DESIGNED TO PREVENT UNWARRANTED INVASIONS OF PERSONAL PRIVACY.

"(F) NOTHING IN THIS SECTION SHALL BE CONSTRUED AS AUTHORITY TO WITHHOLD INFORMATION FROM CONGRESS."

IN VIEW OF THE ENACTMENT OF SECTION 102, YOU MIGHT CONSIDER REFERRING TO IT, WHERE APPROPRIATE, IN THE DISCUSSION OF THE ACCESS PROBLEMS IN THE SUBJECT REPORT (PRIMARILY CHAPTER 2), INDICATING THAT THE FIELD WORK IN WHICH THESE ACCESS PROBLEMS WERE ENCOUNTERED OCCURRED BEFORE THE ENACTMENT OF SECTION 102. OTHERWISE, ONE COULD MISCONSTRUE THE REPORT AS AN INSTANCE WHERE GAO HAS NEGLECTED OR FAILED TO EXERCISE AUTHORITY GRANTED IT TO ENFORCE ITS RIGHT OF ACCESS. MOREOVER, WHEN THE SUBJECT REPORT IS SENT OUT FOR AGENCY COMMENT, ONE MIGHT ANTICIPATE THAT THE AGENCIES CRITICIZED FOR DENYING ACCESS WOULD PROTEST PUBLICATION OF THE REPORT WITHOUT PURSUING THE PROCEDURES SET FORTH IN SECTION 102. IF IT IS DETERMINED THAT AT THIS LATE STAGE IN THE DRAFTING OF THE REPORT, IT WOULD NOT BE BENEFICIAL TO REOPEN THE FIELD WORK BY ACTIVATING THE SECTION 102 PROCEDURES, PERHAPS THIS SHOULD BE EXPLICITLY NOTED IN THE REPORT.

WE WILL DEFER ANY DETAILED DISCUSSION OF THE MECHANICS OF THE IMPLEMENTATION OF SECTION 102, IF NEEDED, UNLESS AND UNTIL IT HAS BEEN DETERMINED BY YOUR DIVISION OR ANY OTHER DIVISION THAT YOU DESIRE AND NEED TO ACTIVATE ITS PROVISIONS.

FN1 THESE OFFICES AND AGENCIES HAVE BEEN ABOLISHED. THE HEADS OF SUCCESSOR AGENCIES ARE NOT NOW STATUTORY MEMBERS OF THE COUNCIL. SEE 50 U.S.C. SEC. 402, NOTES.

FN2 THE PRESIDENT HAS APPARENTLY NEVER COMPLETED, OR PERHAPS EVEN INITIATED, THE STEPS TO HAVE THE HOLDERS OF THESE POSITIONS BECOME MEMBERS OF THE COUNCIL, SINCE SUBSECTION 3(A)(1) OF EX. ORDER NO. 11905, 41 F.R. 7703 (FEBRUARY 13, 1976), SET OUT AS A NOTE UNDER 50 U.S.C. SEC. 401, LISTS THE STATUTORY MEMBERS OF THE COUNCIL AS THE PRESIDENT, VICE PRESIDENT, SECRETARY OF STATE AND SECRETARY OF DEFENSE.