B-216218, Sep 6, 1988, Office of General Counsel

B-216218, Sep 6, 1988, Office of General Counsel

MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Congress - Authority delegation - Administrative agencies DIGEST: 1. Property Clause of Constitution (Article IV, section 3, clause 2) provides Congress with authority to require seat belt use in national parks. Pursuant to 16 U.S.C. Sec. 3, Congress has delegated its authority under Property Clause, as it applies to national parks, to Secretary of the Interior who, relying on that authority, could issue regulation requiring seat belt use in parks. B-216218, November 30, 1984 reaffirmed. MISCELLANEOUS TOPICS - Federal Administrative/Legislative Matters - Executive orders 2. Seat belt requirement for those traveling in national parks could be imposed by the President through executive order. Although authority to regulate activities in parks has been vested in Secretary of the Interior, 16 U.S.C. Sec. 3, an executive order could require Secretary to exercise this authority. Such an executive order would not appear to be incompatible with express or implied will of Congress. See Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).

The Honorable John D. Dingell

Chairman, Subcommittee on Oversight

and Investigations

Committee on Energy and Commerce

House of Representatives:

In a meeting on February 29, 1988, we explained to your staff the results of our examination of the actions of federal agencies involved in a proposed, but never issued, executive order to require the public to use seat belts while traveling on federal lands. This work was done in response to your letter dated June 29, 1987, in which you also asked that we examine the legal issues raised by the proposed order, "including the release of DOT materials on this issue other than any direct communications to the President."

We agreed at the February meeting that we would provide an analysis of the federal government's legal authority to implement a seat belt requirement for all persons traveling in national parks, such as that in the proposed executive order. We also agreed to provide a description of our efforts to obtain documents relating to the draft executive order. This information follows.

Federal Government's Authority to Implement a Seat Belt Requirement in National Parks

We have previously held that the Secretary of the Interior has the authority to issue a regulation requiring people traveling in automobiles in national parks to wear seat belts. B-216218, November 30, 1984. The Property Clause of the Constitution (Article IV, section 3, clause 2) confers upon Congress the authority to make all "needful Rules" respecting the public lands. This power is "without limitations." United States v. San Francisco, 310 U.S. 16, 29 (1940).

Congress has by law delegated authority to manage the national parks to the Secretary of the Interior. The Secretary has been directed to establish regulations he deems necessary "for the care and management of the parks, monuments and reservations under the jurisdiction of the National Park Service. ..." 16 U.S.C. Sec. 3. (The Supremacy Clause (Article VI, clause 2) makes clear that federal action would prevail over any conflicting state regulation.) As we pointed out in B-216218, supra,

"This delegation doubtless encompasses the authority to require seatbelt use by park motorists and to punish non-use with a fine, just as it authorized other regulations to protect the safety of park visitors.

"Safety of park visitors is a legitimate concern of the Secretary of the Interior. The authority to manage the national parks has already been used to set speed limits and make other safety regulations for roads in the national parks. See 36 C.F.R. Part 4 (1983). We see no legal reason why the Secretary could not, in his discretion, add a seat belt use regulation to the traffic safety rules already in existence."

B-216218, November 30, 1984.

A recent case reaffirms this conclusion. The National Park Service regulations generally prohibiting commercial vehicles from using government roads within national parks were challenged. The court stated that the regulations were within the proper scope of the authority delegated to the Secretary under the Property Clause. Wilkenson v. Department of the Interior, 637 F.Supp. 1265, 1279-80 (D. Col. 1986).

We believe that, since the Congress has delegated to the executive branch authority to regulate such matters as safety of park visitors, a seat belt requirement for those traveling in national parks or other federal lands could result from the issuance of an executive order. Although general statutory authority to regulate activities in the parks has been vested in the Secretary of the Interior, an executive order could require the Secretary to exercise this authority. Such an executive order would not appear to be incompatible with the express or implied will of Congress. See Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).

In summary, the Property Clause provides the Congress with authority to require seat belt use in national parks. Congress has delegated its authority under the Property Clause, as it applies to the national parks, to the Secretary of the Interior who, relying on that authority, could issue a regulation requiring seat belt use in the parks. In the alternative, we believe that the President could achieve the same result by requiring the Secretary to exercise his authority to mandate seat belt use by park visitors.

GAO's Efforts to Obtain Documents Relating to the Draft Executive Order

Shortly after receiving your request and meeting with your staff to further refine the issues, we contacted the relevant agencies-- the Department of Transportation, the Office of Management and Budget, the Department of the Interior, and the Department of Agriculture-- to inform them that we would need to talk to agency officials and gather data. outline below our dealings with each agency.

Department of Transportation

We met with the Assistant Secretary for Administration, the General Counsel, and the Deputy General Counsel. The General Counsel informed us that the Department had put together a package of information on the proposed executive order and sent it to the Office of Management and Budget (OMB). He denied us access to those documents. While acknowledging having had extensive conversations with OMB about the proposed executive order, the General Counsel considered those conversations privileged.

The General Counsel did give us copies of documents which discussed the executive order but which were not part of the package sent to OMB. Basically, these documents assessed the various statutory authorities available to agencies to implement a seat belt requirement on lands under their control, should the President issue an executive order mandating such a requirement.

Office of Management and Budget

OMB officials would not comment on any aspect of the executive order. fact, at one point, they would not acknowledge that a proposed executive order requiring the use of seat belts on federal lands existed. OMB considers documents and discussions involving an executive order to be protected by the deliberative process privilege.

OMB supplied us with documents which explain, in an unrelated matter, the basis for its assertion that material prepared by OMB, as well as its consultations with other government agencies to collect advice and information for use in advising the President, were protected from the discovery demands of the opposing party in a lawsuit. In essence, this is because the materials were generated by and for OMB, a component of the Executive Office of the President, to facilitate the efficient discharge of the President's policies. (This argument is discussed in more detail below.)

Department of the Interior

National Park Service officials with whom we talked had heard rumors about a proposed executive order but never saw it. Similarly, Department officials in charge of handling motor vehicle safety matters had neither seen nor heard about the executive order.

The assistant legislative counsel acknowledged that he had informal talks about the proposed executive order with OMB and Transportation Department officials. He stated that, to the best of his recollection, he told the officials that such an order would lead to the same kinds of problems that were cites in a February 1985 letter to you from the Secretary of the Interior in connection with a possible regulation concerning seat belts.

Initially, the assistant legislative counsel agreed to send us a copy of the order and any related material. He later refused, after speaking with OMB officials.

Department of Agriculture

Agriculture has no one who could remember commenting upon the proposed order, nor could it find any documents relating to the order.

GAO's Legal Right To Further Information

According to OMB and the agencies, the information we sought for this review contained "pre-decisional" discussions concerning the proposed executive order. OMB maintains that those discussions, because the issue was whether and in what form to issue an executive order, included options for consideration by the President. OMB asserts that it may withhold documents where disclosure would reveal the exchange of views designed to present advice and recommendations directly to the President.

See Declaration and Claim of Privilege, at 5, Jan. 14, 1986, filed in United States v. Archer-Daniels-Midland Co., Civ. No. 83-51-D (S.D.Ia.)

The law which provides for GAO's access to records does recognize that, in limited circumstances, the deliberative process exemption may form the basis for a refusal by the executive branch to provide us with information. The deliberative process exemption, as it applies to disclosure to the public, is found in the Freedom of Information Act:

"(b) This section mandating that agency records be made available for public inspection does not apply to matters that are--

"(5) Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

This Office is not restricted by the Freedom of Information Act from gaining access to information needed for our work, even though the information might not be available to the public. 5 U.S.C Sec. 552(c); 31 U.S.C. Sec. 716(d)(1). However, the deliberative process exemption in the Freedom of Information Act is available to the executive branch, in narrowly circumscribed conditions, in order to defeat GAO's right of access: an agency may withhold records from GAO if either the President, or the Director of the Office of Management and Budget, personally certifies to the Comptroller General and the Congress, with a complete explanation, both that the records may be withheld from public disclosure under the deliberative process exemption, and that "disclosure reasonably could be expected to impair substantially the operations of the Government." 31 U.S.C. Sec. 716(d).

For the most part, the information we seek is not embodied in documents: we were told that much of the debate over the proposed executive order was conducted orally. Since we have no legal right to compel testimony, we cannot reconstruct the executive branch deliberations in the face of a refusal to cooperate.

Under the circumstances, it was agreed with your staff that we would not at this time attempt to compel disclosure of the drafts of the proposed executive orders or any related documents which may exist.

We hope this information is of use to you.