United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 1997 Decided November 12, 1997
No. 96-5151
Paul D. Halverson, et al.,
Appellants
v.
Rodney E. Slater, Secretary,
United States Department of Transportation,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00028)
John Longstreth argued the cause for the appellants. Don-
ald A. Kaplan was on brief.
Cynthia A. Schnedar, Assistant United States Attorney,
argued the cause for the appellee. Eric H. Holder, Jr.,
United States Attorney at the time the brief was filed, and R.
Craig Lawrence and Michael J. Ryan, Assistant United
States Attorneys, were on brief.
Before: Wald, Sentelle and Henderson, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: This appeal
turns on the authority of the Secretary of the Department of
Transportation (Secretary) to delegate certain responsibilities
under the Great Lakes Pilotage Act of 1960, 46 U.S.C.A.
ss 9301 et seq. (West Supp. 1997) (GLPA), to the Saint
Lawrence Seaway Development Corporation (Corporation).
The appellants, two Great Lakes ship pilots and two Great
Lakes shipping pilots' associations, challenge the Secretary's
delegation of GLPA responsibilities to the Corporation on the
grounds that the delegation (1) exceeds the Secretary's au-
thority under 46 U.S.C.A. s 2104(a) (West Supp. 1997), (2)
lodges with the Corporation duties it has no authority to
discharge and (3) violates the Administrative Procedure Act,
5 U.S.C. ss 551 et seq. (APA). The appellee, the Secretary,
responds that delegation to the Corporation is proper: (1) an
alternative source of delegation power, 49 U.S.C. s 322(b),
supports the delegation; (2) the Corporation has authority to
accept and discharge the "essentially economic" responsibili-
ties it has been delegated because they relate to its broader
mission of regulating commerce on the Saint Lawrence Sea-
way; and (3) the delegation does not contravene applicable
APA requirements. The district court agreed with the Secre-
tary in all respects and granted his motion for summary
judgment. Halverson v. Pea, No. 96-CV-0028, 1996 WL
217885, at *11 (D.D.C. Apr. 23, 1996).
We now reverse. Pursuant to the first step of the familiar
Chevron analysis, we conclude that the plain meaning of
section 2104(a) limits delegation of GLPA functions to the
United States Coast Guard and that section 322(b) cannot
fairly be construed to expand the limitation. See Chevron
USA, Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). We do not reach the other grounds asserted
for reversal except to the extent they may bear on the
question of the Secretary's authority, whether under section
322(b) or section 2104(a), to delegate GLPA responsibilities to
the Corporation.
I. BACKGROUND
The Corporation was established in 1954 by an Act of the
Congress, Pub. L. No. 83-558, 68 Stat. 93 (codified as amend-
ed at 33 U.S.C. ss 981 et seq.). Its congressional charter set
forth the Corporation's specific (and limited) functions in
some detail. See 33 U.S.C. s 983; 1 S. Rep. No. 83-441, at 2,
6-14 (1953) (describing limited purposes for which Corpora-
tion was created); H.R. Rep. No. 83-1215 (1954) (similar),
reprinted in 1954 U.S.C.C.A.N. 2197, 2224-42. The narrow-
ness of the Corporation's mission was further reflected in the
statutory enumeration of the Corporation's powers. See 33
U.S.C. s 984(a).2 When first established, the Corporation
__________
1 Section 983(a), in relevant part, provides:
The Corporation is authorized and directed to construct, in
United States territory, deep-water navigation works substan-
tially in accordance with the "Controlled single stage project,
238-242" ... together with necessary dredging in the Thou-
sand Islands section; and to operate and maintain such works
in coordination with the Saint Lawrence Seaway Authority of
Canada....
33 U.S.C. s 983(a).
2 Section 984(a), in relevant part, provides:
For the purpose of carrying out its functions under this chapter
the Corporation--
...
(5) may make and carry out such contracts or agreements as
are necessary or advisable in the conduct of its business;
...
(7) may appoint and fix the compensation, in accordance with
the provisions of chapter 51 and subchapter III of chapter 53 of
Title 5, of such officers, attorneys, and employees as may be
necessary for the conduct of its business, define their authority
was "subject to the direction and supervision of the President,
or the head of such agency as he may designate." 33 U.S.C.
s 981 (1954). Through fiscal year 1966, the Department of
Commerce was the agency designated to supervise the Cor-
poration. In fiscal year 1967, however, the Congress amend-
ed section 981, replacing the "President, or the head of such
agency as he may designate" language with the "Secretary of
Transportation." 33 U.S.C. s 981 (1966).
Construction of the Saint Lawrence Seaway was completed
in 1959, opening the Great Lakes to international shipping.
Not surprisingly, opening of the Seaway brought with it a
marked increase in the volume of both domestic and interna-
tional marine traffic navigating the Great Lakes, their tribu-
taries and their outlets. As a result, one year later the
Congress enacted GLPA. See Pub. L. No. 86-555, 74 Stat.
259 (1960) (codified as amended at 46 U.S.C.A. ss 9301 et seq.
(West Supp. 1997)). Among other things, GLPA required
commercial ships to employ a registered United States or
Canadian pilot to steer them (or advise them how to steer)
safely and efficiently through certain portions of the Great
Lakes, their tributaries and outlets, and the approaches to
the Sault Sainte Marie Locks. See 46 U.S.C.A. s 9302 &
Note (West Supp. 1997).
As noted, in 1967 the Department of Transportation took
over supervision of the Corporation. That same fiscal year,
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and duties, and delegate to them such of the powers vested in
the Corporation as the Administrator may determine;
...
(9) shall determine the character of and the necessity for its
obligations and expenditures, and the manner in which they
shall be incurred, allowed and paid, subject to provisions of law
specifically applicable to Government corporations;
...
(11) may provide services and facilities necessary in the main-
tenance and operation of the seaway....
33 U.S.C. s 984(a).
administrative responsibility for the United States Coast
Guard was transferred from the Department of the Treasury
to the Transportation Department.3 See Pub. L. No. 89-670,
s 6(b)(1), 80 Stat. 931 (1966) (codified as amended at 14
U.S.C. s 1). The Transportation Secretary subsequently del-
egated his GLPA responsibilities to the Commandant of the
Coast Guard, with whom they remained until December 1995.
See Delegations to Commandant of the Coast Guard, 49
C.F.R. s 1.46(a) (1994).
In December 1995, the Secretary published a final rule that
rescinded the standing delegation of GLPA functions to the
Coast Guard and redelegated eleven "essentially economic"
functions to the Corporation. See Organization and Delega-
tion of Powers and Duties; Transfer of Great Lakes Pilotage
Authority From the Coast Guard to the Saint Lawrence
Seaway Development Corporation, 60 Fed. Reg. 63,444 (1995)
(codified at 49 C.F.R. s 1.52(d)-(e) (1997)).4 Shortly thereaf-
ter, the appellants filed suit and moved for a preliminary
injunction or summary judgment. The Secretary cross-
moved for summary judgment and a hearing on the motions
was held on March 8, 1996. At its conclusion, the district
court denied the appellants' motion for a preliminary injunc-
tion and reserved decision on the parties' summary judgment
motions.
__________
3 When the Department of Transportation was established in
1966, Pub. L. No. 89-670, s 2(b)(1), 80 Stat. 931 (1966), the Con-
gress transferred to it various functions and administrative respon-
sibilities of other agencies, including responsibility for the Coast
Guard and the Corporation as well as GLPA powers and duties.
4 The eleven functions include:
(1) Investigation and prosecution of violations of [GLPA]; (2)
registration, qualification, and training of registered pilots; (3)
association working rules and dispatching procedures; (4) pilot
working conditions; (5) selection of pilots; (6) number of pilots;
(7) availability of pilots; (8) number of pilotage pools; (9)
articles of association; (10) auditing; and (11) ratemaking.
60 Fed. Reg. 63,444 (1995).
By Memorandum Opinion and Order dated April 23, 1996
the district court granted the Secretary's cross-motion for
summary judgment, finding that both the first and second
steps of the analysis set forth in Chevron compelled a holding
in his favor. Halverson, 1996 WL 217885, at *4-*6. The
lower court first applied Chevron step one to section 322(b),
whose provisions principally authorize the Secretary to dele-
gate his Title 49 powers and duties to any Transportation
officer or employee. The trial court, however, failed to
construe section 322(b) in light of section 2104(a)--a specific
grant of delegation authority of Title 46 powers and duties
(including GLPA powers and duties) to Coast Guard officials
only. Nor did the court below otherwise attempt to interpret
section 2104(a) according to Chevron step one, id. at *4-*5,
deciding instead to construe it pursuant to Chevron step two.
While the district court concluded that its step-one analysis of
section 322(b) resolved the delegation issue in the Secretary's
favor, it further found that even if section 322(b) was not
unambiguous, the Secretary's interpretation of section 2104(a)
was reasonable and therefore entitled to deference under
Chevron step two. Id. at *5-*6. Thus, the lower court
applied Chevron step one to section 322(b) and Chevron step
two to section 2104(a).
II. DISCUSSION
We review the district court's award of summary judgment
de novo. See Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.
Cir. 1995). The parties' arguments regarding the Secretary's
authority to delegate GLPA functions to non-Coast Guard
officials center on the proper interpretation of (and relation-
ship between) 49 U.S.C. s 322(b) and 46 U.S.C.A. s 2104(a)
(West Supp. 1997). Section 322(b), in relevant part, provides:
The [Transportation] Secretary may delegate, and autho-
rize successive delegations of, duties and powers of the
Secretary to an officer or employee of the Department.
49 U.S.C. s 322(b). As the Secretary reads this provision, it
gives him largely unfettered discretion to delegate duties and
powers to agency officers and employees.5 Indeed, he ap-
pears to have succeeded in convincing the district judge that
only an express statutory prohibition could foreclose exercise
of his section 322(b) authority. See Halverson, 1996 WL
217885, at *6 ("Had Congress intended the Great Lakes
pilotage functions to remain solely with the Coast Guard, it
could have explicitly provided so.") (emphasis added). The
appellants read the Secretary's section 322(b) authority a
good deal more narrowly. They contend, in effect, that the
scope of section 322(b) cannot be determined without refer-
ence to the specific power being delegated, the authority of
the delegatee to exercise the power and any limitations that
may be imposed by other, more specific statutory provisions
such as 46 U.S.C.A. s 2104(a) (West Supp. 1997).
Section 2104(a), in turn, provides that:
The Secretary may delegate the duties and powers con-
ferred by this subtitle [Subtitle II entitled "Vessels and
Seamen"] to any officer, employee, or member of the
Coast Guard, and may provide for the subdelegation of
those duties and powers.
46 U.S.C.A. s 2104(a) (West Supp. 1997).6 The appellants
read section 2104(a) to authorize the Secretary to exercise
__________
5 Both parties apparently assume that the Administrator of the
Corporation is "an officer or employee of the Department" for the
purpose of section 322(b). While we assume the same in deciding
this appeal, we express no opinion as to the correctness of the
assumption.
6 Section 2104(a) applies here because GLPA responsibilities are
among the Secretary's Title 46, Subtitle II powers and duties.
Section 2104(a) is found in Part A ("General Provisions") and GLPA
is found in Part F ("Manning of Vessels") of Subtitle II. See
generally 46 U.S.C.A. (West Supp. 1997). Section 2104(b) appears
to authorize, in circumstances not applicable here, delegation of
Subtitle II powers and duties to a designated Customs Service
officer or employee serving in the stead of a Coast Guard official.
See 46 U.S.C.A. s 2104(b) (West Supp. 1997) ("When this subtitle
authorizes an officer or employee of the Customs Service to act in
place of a Coast Guard official, the Secretary may designate that
GLPA duties and powers himself or to delegate them to a
Coast Guard official. They believe that section 2104(a) unam-
biguously proscribes delegation of GLPA responsibilities out-
side the Coast Guard and thwarts the Secretary's attempt to
effect such a delegation pursuant to his general section 322(b)
authority. The Secretary, unsurprisingly, construes section
2104(a) quite differently. He reasons that because section
2104(a) does not expressly proscribe a section 322(b) delega-
tion, he may delegate Subtitle II powers and duties pursuant
to the latter provision. The Secretary thus construes section
2104(a) merely to clarify that "any officer, employee, or
member of the Coast Guard" is an "officer or employee of the
Department" to whom he may otherwise delegate Subtitle II
responsibilities pursuant to section 322(b).
The Chevron framework governs our interpretation of sec-
tions 322(b) and 2104(a):
Under this analysis, the court must first exhaust the
traditional tools of statutory construction to determine
whether Congress has spoken to the precise question at
issue. ... If the court can determine congressional
intent, then that interpretation must be given effect. ...
If, on the other hand, the statute is silent or ambiguous
with respect to the specific issue, then the court will
defer to a permissible agency construction of the statute.
Natural Resources Defense Council, Inc. v. Browner, 57 F.3d
1122, 1125 (D.C. Cir. 1995) (internal citations and quotation
marks omitted; emphasis added) [hereinafter NRDC]. Thus,
"[i]f employment of an accepted canon of construction illus-
trates that Congress had a specific intent on the issue in
question, then the case can be disposed of under the first
prong of Chevron." Michigan Citizens for an Indep. Press v.
Thornburgh, 868 F.2d 1285, 1292-93 (D.C. Cir.) (emphasis
original), aff'd by equally divided Court, 493 U.S. 38 (1989)
[hereinafter Michigan Citizens]. If, however, the statute is
ambiguous, then Chevron step two "implicitly precludes
__________
officer or employee subject to the approval of the Secretary of the
Treasury.").
courts picking and choosing among various canons of con-
struction to reject reasonable agency interpretations." Id. at
1292 (emphasis original).
We believe the lower court erred by failing to "exhaust the
traditional tools of statutory construction," NRDC, 57 F.3d at
1125, with respect to both section 322(b) and section 2104(a).
See Horsehead Resource Dev. Co. v. Browner, 16 F.3d 1246,
1262 (D.C. Cir. 1994) (applying Chevron step one to two
different RCRA provisions and concluding that, when read
together, their plain meaning favored EPA's construction as
embodied in regulation); cf. K Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 291 (1988) ("In ascertaining the plain meaning
of the statute, the court must look to the particular statutory
language at issue, as well as the language and design of the
statute as a whole.") (emphasis added); Ethyl Corp. v. EPA,
51 F.3d 1053, 1063 (D.C. Cir. 1995) (applying Chevron step
one to "find that the language of section 211(f)(4), standing
alone, and standing in contrast to section 211(c)(1), is dispos-
itive of this case") (emphasis added). After examining both
section 2104(a) and section 322(b) according to Chevron step
one, as we must, we believe that the language of section
2104(a) compels the conclusion that the Congress did not
intend to authorize the delegation of GLPA functions to a
non-Coast Guard official. Our conclusion is supported by the
limited statutory purposes of the Corporation.
A. The Language of Section 2104(a)
The Secretary's interpretation of section 2104(a) runs afoul
of the cardinal canon of statutory construction that "[w]e
must read the statutes to give effect to each if we can do so
while preserving their sense and purpose." Watt v. Alaska,
451 U.S. 259, 267 (1981); cf. Reiter v. Sonotone Corp., 442
U.S. 330, 339 (1979) ("In construing a statute we are obliged
to give effect, if possible, to every word Congress used."). As
the Secretary reads section 2104(a), it does not (other than in
times of war) provide any delegation authority beyond what
he already possesses under section 322(b), and thus, at most,
merely confirms his section 322(b) authority. This reading
plainly violates the familiar doctrine that the Congress cannot
be presumed to do a futile thing. See Ramah Navajo Sch.
Bd., Inc. v. Babbitt, 87 F.3d 1338, 1344-45 n.6 (D.C. Cir. 1996)
("We will not ... assume that Congress intended for that
jurisdiction[al] [provision] to be meaningless."); Benavides v.
DEA, 968 F.2d 1243, 1248 (D.C. Cir. 1992) (rejecting Attorney
General's interpretation of statutory provision because it
would make provision "either superfluous or meaningless");
RCA Global Communications, Inc. v. FCC, 758 F.2d 722, 733
(D.C. Cir. 1985) (rejecting interpretation that "would deprive
[the provision] of all substantive effect, a result self evidently
contrary to Congress' intent").
Perhaps recognizing the weakness of such an interpretation
of section 2104(a), the Secretary attempts to ascribe a war-
time significance to section 2104(a). His attempt fails. The
Secretary asserts that section 2104(a) is needed simply to
preserve his ability to delegate Subtitle II powers and duties
to Coast Guard officials in time of war, when the Coast Guard
reverts to the administrative control of the Department of the
Navy. This assertion is patently erroneous. Another provi-
sion of Subtitle II explicitly directs that when the Coast
Guard operates as part of the Navy, the "Secretary" referred
to in various sections of Title 46 (including section 2104(a)) is
not the Transportation Secretary but the Secretary of the
Navy.7 See 46 U.S.C.A. s 2101(34) (West Supp. 1997) ("'Sec-
retary', except in Part H, means the head of the department
in which the Coast Guard is operating."); accord S. Rep. No.
98-56, at 8 (1983) ("This bill universally vests all authority in
the 'Secretary of the Department in which the Coast Guard is
operating,' and provides authority to the Secretary to dele-
gate and allow for subdelegation."). Accordingly, when the
Coast Guard operates as part of the Navy, only the Secretary
of the Navy can delegate Subtitle II responsibilities pursuant
to section 2104(a). The provision cannot be interpreted, then,
merely to preserve the Transportation Secretary's Subtitle II
delegation authority in time of war.
__________
7 Structurally, it would also be strange for the Congress to
address this matter in a portion of Subtitle II that does not refer
even indirectly to the Coast Guard's transfer to Navy control.
The Secretary's view of section 2104(a) is also irreconcilable
with the statutory construction principle, expressio unius est
exclusio alterius, that is, the "mention of one thing implies
the exclusion of another thing." Ethyl, 51 F.3d at 1061
(internal quotation omitted). That section 2104(a) authorizes
delegations to Coast Guard officials only cannot be disregard-
ed. According to the expressio unius canon, the Congress, in
drafting section 2104(a) this way, intended to exclude delega-
tions to non-Coast Guard officials.8 And to the extent section
2104(a) may be deemed to conflict with section 322(b) (itself a
disfavored construction, see Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 879 (1994) ("[W]hen possible, courts
should construe statutes ... to foster harmony with other
statutory and constitutional law.")), the former as the more
specific provision controls, again according to the traditional
tools of statutory construction. See Edmond v. United
States, 117 S. Ct. 1573, 1578 (1997) ("Ordinarily, where a
specific provision conflicts with a general one, the specific
governs.").
The Secretary next argues that because the Congress did
not expressly prohibit delegation of Subtitle II powers and
duties to a non-Coast Guard official in section 2104(a), yet
elsewhere did so proscribe, the former omission indicates a
legislative intent consistent with the Secretary's reading of
section 2104(a).9 This rule of statutory interpretation, howev-
__________
8 The trial court found (and the Secretary argues) that expressio
unius cannot be applied unless the statute possesses some unde-
fined measure of specificity that section 2104(a) lacks. While the
cases cited as authority for this proposition do not appear to
establish such a requirement--see, e.g., Michigan Citizens, 868 F.2d
at 1293 (applying expressio unius at Chevron step one without
mentioning specificity requirement)--any specificity that may be
required to invoke the canon is easily met here: section 2104(a)
delineates the class of permissible delegatees as officers, employees
and members of the Coast Guard, or, in special circumstances,
certain Customs Service officers or employees.
9 The canon of construction here urged by the Secretary--name-
ly, that we should infer a legislative intent to permit delegation
where Congress has not expressly proscribed it, having proscribed
er, has force only if the two provisions in question are
included within the same legislative enactment. See Russello
v. United States, 464 U.S. 16, 23 (1983) (" '[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.' ") (quoting, as authorita-
tive, United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th
Cir. 1972)) (brackets original; emphasis added); cf. Pure Oil
Co. v. Suarez, 384 U.S. 202, 206 (1966) (legislative intent
cannot fairly be inferred from different language in two
sections of different enactments). The express delegation
proscriptions to which the Secretary refers--the Port and
Tanker Safety Act of 1978, codified at 33 U.S.C. s 1229, and a
__________
it elsewhere, differs from the expressio unius canon. Expressio
unius has been described as follows:
Although the expressio unius maxim has had widespread legal
application, there is nothing peculiarly legal about it. It is a
product of logic and common sense. It acts merely as an aid to
determine legislative intent and does not constitute a rule of
law. It expresses the learning of common experience that
when people say one thing they do not mean something else.
2A Norman J. Singer, Sutherland Stat. Const. s 47.24 (5th ed.
1992) (internal quotation marks and notes omitted). The canon
relied on by the Secretary, however, according to the same com-
mentator, works differently:
Caution must be exercised in applying the rule that one statute
will be interpreted to correspond to analogous but unrelated
statutes for the reason that by way of contrast an inclusion or
exclusion may show an intent or convey a meaning exactly
contrary to that expressed by analogous legislation. There-
fore, the rule tends to be of greater value where analogy is
made to several statutes or a general course of legislation.
Id. vol. 2B, s 53.05 (notes omitted). But there is no course of
legislation expressly proscribing delegation of Subtitle II powers
and duties. Instead, the Secretary points only to a provision of the
Port and Tanker Safety Act of 1978, codified as amended at 33
U.S.C. s 1229, and a 1984 amendment to Subtitle II, codified as
amended at 46 U.S.C.A. s 8503(c) (West Supp. 1997).
1984 amendment to Subtitle II, 46 U.S.C.A. s 8503(c) (West
Supp. 1997)--are plainly not part of the 1983 Act containing
section 2104(a).
Even if the proscriptions were in the same enactment as
section 2104(a), it would not support the inference that the
Congress intended section 322(b) to override the limiting
language of section 2104(a). This is so because section
2104(a) was enacted as part of the recodification of Title 46
and, as such, is a manifestly inappropriate legislative vehicle
to which to apply the rule because any inconsistency arising
from the earlier enactment (like section 322(b)) is, absent a
contemporaneous revision, merely carried forward by the
recodification. Cf. Fourco Glass Co. v. Transmirra, 353 U.S.
222, 227 (1957) ("[I]t will not be inferred that Congress, in
revising and consolidating the laws, intended to change their
effect unless such intention is clearly expressed.").
Most significantly,
[t]o suggest, ... that Chevron step two is implicated any
time a statute does not expressly negate the existence of
a claimed administrative power (i.e. when the statute is
not written in 'thou shalt not' terms), is both flatly
unfaithful to the principles of administrative law ... and
refuted by precedent. ... Were courts to presume a
delegation of power absent an express withholding of
such power, agencies would enjoy virtually limitless he-
gemony, a result plainly out of keeping with Chevron and
quite likely with the Constitution as well."
Railway Labor Executives' Ass'n v. National Mediation Bd.,
29 F.3d 655, 671 (D.C. Cir. 1994), cert. denied, 514 U.S. 1032
(1995); accord Ethyl, 51 F.3d at 1060 ("We refuse, once again,
to presume a delegation of power merely because Congress
has not expressly withheld such power."); cf. Engine Mfrs.
Ass'n v. EPA, 88 F.3d 1075, 1088 (D.C. Cir. 1996) ("[I]f [the
text] clearly requires a particular outcome, then the mere fact
that it does so implicitly rather than expressly does not mean
that it is 'silent' in the Chevron sense."); Girouard v. United
States, 328 U.S. 61, 69 (1946) ("It is at best treacherous to
find in [such] congressional silence alone the adoption of a
controlling rule of law."). Accordingly, the absence of an
express proscription--whether in section 2104(a), section
322(b), GLPA, or the Corporation's statutory charter--pro-
vides no green light to ignore the proscription necessarily
implied by the limiting language of section 2104(a).
B. The Legislative History of Section 2104(a)
The Secretary's attempts to overcome the plain meaning of
section 2104(a) by reference to its legislative history are
equally unsuccessful.10 The relevant committee reports make
clear that section 2104(a) is intended to be an affirmative
grant of authority, not a clarification of the Secretary's exist-
ing authority under section 322(b): "Section 2104 provides
the Secretary with authority to delegate duties and powers[.]"
H.R. Rep. No. 98-338, at 131 (1983), reprinted in 46 U.S.C.A.
Legislative History App. at 541 (West Supp. 1997); accord
S. Rep. No. 98-56, at 8 (1983) ("This bill ... provides
authority to the Secretary to delegate and allow for subdele-
gation."). If the Secretary's view of section 2104(a) were
correct, the Congress would have no need to "provide[ ] the
__________
10 While ordinarily we have no need to refer to legislative history
at Chevron step one, "[r]eference to statutory design and pertinent
legislative history may often shed new light on congressional intent,
notwithstanding statutory language that appears superficially
clear." NRDC, 57 F.3d at 1127 (internal quotation marks omitted);
accord Ethyl, 51 F.3d at 1062-63 (reviewing legislative history
under Chevron step one and concluding that "[a]t best, the legisla-
tive history is cryptic, and this surely is not enough to overcome the
plain meaning of the statute"); City of Cleveland v. Nuclear
Regulatory Comm'n, 68 F.3d 1361, 1366 n.4 (D.C. Cir. 1995) ("[W]e
may consider a provision's legislative history in the first step of
Chevron analysis to determine whether Congress' intent is clear
from the plain language of the statute."). We consider legislative
history here only because the Secretary argues that it evinces a
congressional intent at odds with what the language of section
2104(a) otherwise manifests.
Secretary with authority" he already possessed under section
322(b).
Nevertheless, the Secretary refers to language in the
House Report accompanying the 1983 recodification of Subti-
tle II, which, in relevant part, recites:
The word "shall" is used in the mandatory and impera-
tive sense. The word "may" is used in the permissive
sense, as "is permitted to" and "is authorized". The
words "may not" are used in a prohibitory sense, as "is
not authorized to" and "is not permitted to".
H.R. Rep. No. 98-338, at 121 (1983), reprinted in 46 U.S.C.A.
Legislative History App. at 529 (West Supp. 1997) (emphasis
added). The Secretary thus argues that reading the "may"
language in section 2104(a) as implicitly prohibiting delega-
tion to a non-Coast Guard official would in fact transform
"may" into "may not".
To say that "may" is permissive does not lead to the
conclusion that it permits everything, irrespective of other
unambiguous words of limitation included in the sentence in
which the term is used. Cf. Ethyl, 51 F.3d at 1059 (although
statute provided that Administrator "may" consider certain
factors in determining whether to waive statutory prohibition,
"Congress's use of the word 'may' does not ... open the door
for the Administrator to consider any factor she deems 'in the
public interest' before granting or denying a ... waiver.").
Rather, the word "may" in section 2104(a) merely grants
discretion to the Secretary, the limits of which are ascer-
tained by reference to the section's other language, its struc-
ture and its purpose.11 Accordingly, the quoted House Re-
port language does not support the Secretary's interpretation
of section 2104(a) and it cannot be deemed inconsistent with
the plain meaning of the language of section 2104(a)--i.e., to
give the Secretary authority either to retain Subtitle II
__________
11 Indeed, if the Secretary relied on the same "permissive" defini-
tion of "may" in construing section 322(b), the provision would
authorize him to delegate "duties and powers of the Secretary to an
officer or employee of the Department"--or to an officer or employ-
ee not of the Department. This construction would ignore the
limitation imposed by section 322(b)'s key prepositional phrase--
"officer or employee of the Department."
powers and duties or to delegate them to a Coast Guard
official.
The other item of legislative history the Secretary points to
is a portion of the Senate Report accompanying the 1983
recodification of Subtitle II, which states in relevant part:
Section 2104 sets forth broad delegation authority for the
Secretary, including the authority to delegate duties and
powers under subtitle II to any Coast Guard official.
S. Rep. No. 98-56, at 12 (1983) (emphasis added). The
Secretary contends that "including" means that the Congress
intended to empower the Secretary to delegate Subtitle II
powers and duties to non-Coast Guard officials or employees.
While this is one possible interpretation of the "including"
language, the non-Coast Guard officials suggested by "includ-
ing" are more likely the designated Customs Service officials
who can act for Coast Guard officials pursuant to section
2104(b). See note 6, supra.
C. Implied Limits on the Secretary's
Section 322(b) Authority
The conclusion that section 2104(a) necessarily limits the
Secretary's section 322(b) delegation authority is also but-
tressed by the holding in United States v. Giordano, 416 U.S.
505, 514 (1974). In Giordano, a pre-Chevron case, the Su-
preme Court faced a question much like the one presented
here: How to construe two grants of delegation authority--a
broad one and a specific one--so as to give effect to the
Congress's intent in enacting each. The Court held that
although the Attorney General possesses general delegation
authority under 28 U.S.C. s 510, that section does not autho-
rize him to expand the specific delegation permitted by 18
U.S.C. s 2516(1), providing that "[t]he Attorney General, or
any Assistant Attorney General specially designated by the
Attorney General, may authorize" an application for wiretap
authority. 416 U.S. at 513-14. In other words, the Court
held that although section 2516(1) does not expressly pro-
scribe delegation of the wiretap authority to the Attorney
General's Executive Assistant, "it appears wholly at odds with
the scheme and history of the Act to construe s 2516(1) to
permit the Attorney General to delegate his authority at will,
whether it be to his Executive Assistant or to any officer in
the Department other than an Assistant Attorney General."
Id. at 523.
Like the provisions at issue in Giordano, section 2104(a) is
more specific than section 322(b) and, although it does not
expressly prohibit use of the Secretary's section 322(b) au-
thority, its language and legislative history manifest the
Congress's intent to limit the individuals to whom Subtitle II
powers and duties--which involve primarily maritime safety
and commerce--may be delegated. Accordingly, we reach
the same conclusion here that the Supreme Court reached in
Giordano: section 2104(a), the more specific (and limited)
delegation authority, precludes the use of section 322(b) to
delegate Subtitle II duties and powers to non-Coast Guard
officials.
Finally, construing section 322(b) in this fashion also gives
effect to the Congress's evident intent to circumscribe the
Corporation's operations within narrow geographic and func-
tional boundaries. In other words, the Corporation's char-
ter--relating to the "construct[ion] ... operat[ion] and
maint[enance]" of "deep-water navigation works" in specified
portions of the Saint Lawrence River--necessarily limits the
Secretary's section 322(b) authority. See Ashwood Manor
Civic Ass'n v. Dole, 619 F. Supp. 52, 65-69 (E.D. Pa.)
(concluding that even though section 322(b) gives Secretary
broad authority to delegate agency powers and duties, scope
may be limited by nature of power delegated as well as by
delegatee's ability to exercise such authority), aff'd without
pub. op., 779 F.2d 41 (3d Cir. 1985), cert. denied, 475 U.S.
1082 (1986); cf. Gomez v. United States, 490 U.S. 858, 864
(1989) ("When a statute creates an office to which it assigns
specific duties, those duties outline the attributes of the office.
Any additional duties performed pursuant to a general autho-
rization in the statute reasonably should bear some relation to
the specified duties.").
While the trial court erred in not applying Chevron step
one to both sections, we do not mean to suggest that the
error lies in not using the identical Chevron step with respect
to both. Rather, we conclude that Chevron step one requires
that the plain language of sections 2104(a) and 322(b) be read
together so as to give effect to the Congress's evident intent
in enacting both. See Engine Mfrs. Ass'n, 88 F.3d at 1088
("[If] scope of the authorization ... is clear in the statute, the
scope of the implied preemption can be resolved at Chevron
step one."). Both the Secretary and the district court failed
to so read them. And even if section 322(b)'s scope is
ambiguous, requiring recourse to Chevron step two, we would
be compelled to reject the Secretary's interpretation as un-
reasonable because it "would deprive [section 2104(a)] of
virtually all effect." American Fed'n of Gov't Employees v.
FLRA, 798 F.2d 1525, 1528 (D.C. Cir. 1986). If no "legisla-
tive history of exceptional clarity" exists to support such a
construction, we have consistently refused to do so. Id.
(internal quotation marks omitted).
III. CONCLUSION
For the foregoing reasons we conclude that the Secretary
lacks authority to delegate GLPA powers and duties to the
Corporation. Accordingly, we reverse the grant of summary
judgment and remand to the district court with instructions
to vacate the Secretary's December 1995 final rule--Organi-
zation and Delegation of Powers and Duties; Transfer of
Great Lakes Pilotage Authority From the Coast Guard to the
Saint Lawrence Seaway Development Corporation, 60 Fed.
Reg. 63,444 (1995) (codified at 49 C.F.R. s 1.52(d)-(e) (1997)).
So ordered.