Acceptance of Position With Montgomery Ward Company by Consumer Product Safety Commission Employee
Consumer Product Safety Commission—Former Officers and Employees—Accepting Private Employment
Acceptance of Voluntary Service in the White House
The White House Office—Acceptance of Voluntary Service (31 U.S.C. § 665(b))
Access to Classified Information
This memorandum provides an opinion on various legal questions posed by a panel appointed by the Director of Central Intelligence to make a recommendation on whether an official at the Department of State, Richard Nuccio, should be granted access to Sensitive Compartmented Information.
Access to Criminal History Records by Non-Governmental Entities Performing Authorized Criminal Justice Functions
Non-govemmental entities performing authorized criminal justice functions under contract with government law enforcement agencies may be granted access to criminal history records maintained under the authority of 28 U.S.C. § 534, subject to effective controls to guard against unauthorized use and to ensure effective oversight by the Department of Justice.
Because Department of Justice regulations implementing 28 U.S C. § 534 do not affirmatively authorize dissemination of criminal history records to non-govemmental entities under contract to assist law enforcement agencies, those regulations should be amended to provide such authorization before access is granted to those entities.
Accessibility Guidelines and Federal Lease Renewals
The Architectural and Transportation Barriers Compliance Board may require, pursuant to the Architectural Barriers Act of 1968, that buildings first leased by federal agencies after 1976 be brought into compliance with current accessibility standards when the agency negotiates renewal of the lease.
Acquisition of Land by the Department of the Air Force
The requirement in 40 U.S.C. § 255 that the Attorney General review and approve the sufficiency of title to land prior to its acquisition by the government applies to all federal land acquisitions, except those specifically exempted from it, including the acquisition of land proposed by the Air Force in this case. The statutory provision which allows the Air Force to begin construction on land before its title is approved does not create an exception to the generally applicable requirement in 40 U.S.C. § 255, but is merely intended to allow military construction projects to get underway pending a determination on the validity of title.
Under regulations promulgated by the Attorney General, which are binding on agencies to which he had delegated his authority to approve title, less than fee simple title may not be approved for lands on which the United States is placing permanent improvements, except where Congress has authorized a lesser estate. Even where Congress arguably authorized acquisition of a lesser estate, the Attorney General and his delegees are still responsible for determining whether the title to be acquired in a particular case is sufficient for the intended government purposes.
The title proposed to be acquired from the Colorado State Board of Land Commissioners in this case—a right-of-way subject to a reversion interest—is not sufficient under Colorado law to protect the interests of the federal government where the Air Force intends to build a multimillion dollar military complex on the land.
Acting Attorneys General
From 1870 until 1953, the Solicitor General served as Acting Attorney General in the event that the office of Attorney General was vacant or the Attorney General was absent or disabled. This plan of succession was modified by Reorganization Plan No. 4 of 1953 and by the codification in 1977 at 28 U.S.C. § 508 providing for the following statutory succession: Deputy Attorney General, Associate Attorney General, and in such order as the Attorney General shall designate, the Solicitor General and the Assistant Attorneys General.
An officer designated by a department head pursuant to a statute to perform the duties of a presidential appointee has the same authority as the officer for whom he acts, and may serve for an indefinite period notwithstanding the 30-day limitation of the Vacancy Act, though while acting he is entitled only to the salary of his regular position. There are, however, a number of practical and political reasons why the designation of acting officers should not be used as a substitute for appointment by and with the advice and consent of the Senate.
Potential infirmities in the authonty of the acting officer in any particular situation will be cured by the de facto officer rule.
Adjusting the Census for Recent Immigrants: The Chiles Amendment
The Chiles Amendment authorizes the President to order a special census pursuant to 13 U.S.C. § 196, or to use some other method of obtaining a revised estimate of the population, whenever he determines that the population of a particular area is significantly affected by an influx of immigrants within six months of a regular decennial census date.
The Chiles Amendment was intended simply to remove an unfairly arbitrary element from the census, and not to serve as an indirect means of aiding jurisdictions affected by large numbers of recent immigrants. Accordingly, the entire population of significantly affected jurisdictions must be estimated, in order to take into account both the recent influx of immigrants and any offsetting recent population decline.
Administration of Coral Reef Resources in the Northwest Hawaiian Islands
The President may use his authonty under the Antiquities Act to establish a national monument in the territorial sea and a national monument in the exclusive economic zone to protect marine resources.
The President may not establish a national wildlife refuge in the territorial sea or the exclusive economic zone using the implied power to reserve public lands recognized in United States v. Midwest Oil Co., 236 U.S. 459(1915).
The authority to manage national monuments can, under certain circumstances, be shared between the Department of the Interior and other agencies, but the Fish and Wildlife Service must maintain sole management authority over any national wildlife refuge area within a monument. Regulations applicable to national monuments trump inconsistent fishery management plans, but the establishment of a national monument would not preclude the establishment of a national marine sanctuary in the same area.