APPENDIX IZ | APPENDIX II — Departmentof Energy Washington, D.C. 20545 December 28, 1978 Mr. J. Dexter Peach Director Exergy and Materials Division General Accounting Office Washington, D.C. 20548 Dear Mr. Peach: We appreciate the opportunity to review aud commence on che GAO drafrc repore encitled "Observations On The Projece To Cleanup, Rehabilicace And Resetrle Enewecak Atoll." Our views with respece co the draft report and the recommendations contained therein follow: 1. The draft report notes in several places that the potencial exists tor fucure legal difficulties because of loss of land, loss of land usage, loss of cash crops, and the absence of long-cerm agreements with the people of Enewetak. In Chapter 3 the report vaguely indicates chat the iegal difficulties would be in the nature of clains against che-United States. However, the report does not elaborate on this point. There is no indication under what auchority such claims could be made. Under the Federal Tort Claims Act, any claims arising ouc of a discrecionary funceion of the Government (28 USCA 2680 (a)) or “in a foreign country" (28 USCA 2680(«)) are specifically excluded from coverage by the Act. Of course, the most obvious of these as far as claims from the people of Enewetak goes would be the foreign country exclusion. The courcs have held chat che phrase “in a foreign country” in Sec. 2680(k) is used with che meaning dictated by common sense and common speech. Places that have been held by the courts to censtitute a “foreign country” wichin the con:emplacion of the exclusisn include che Pacific Islands of Okinawa, Saanan, and © Kwajalein. [tc is, therefore. reasonable co assime chat Enewetak would almost surely come within the exclusion. The legisiative history sf the Federal Tors Clains Act discioses that Congress excluded claims arising “in a foreign country” because lizbility under the act was to be determined “in accordance with che Law - of che place- where che .act 3 or cmission occurred’ and Congresstm ettida _ om Shame ties tr Was unWillinz ¢t2 subject che Uniced Seaces to liabilisies depencing upen the iaws of a fsreign sower.'' 5001516 25 Indeec, Congress has expressed