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JGR/Environmental Protection Agency - [H.R. 2912, DOJ 1984 Authorization Bill]
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JGR/Environmental Protection Agency - [H.R. 2912, DOJ 1984 Authorization Bill]
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John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Environmental Protection Agency -
[H.R. 2912, DOJ 1984 Authorization Bill]
Box: 22
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
July 25, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Justice Report on Section 11 (c) of H.R.
2912, the DOJ FY '84 Authorization Bill
Jim Murr has provided us with a copy of the proposed Justice
Department report on section 11 (c) of its pending FY 1984
Authorization Bill, and has indicated he will clear the
report unless he hears from us to the contrary by noon
today. You will recall that we urged the interposition of
an objection to section 11 (c) when we were first provided
with a copy of the bill (copies of previous memoranda
attached). Section 11 (c), drafted in response to the EPA
contempt controversy and the filing of United States V. The
House of Representatives, basically provides that in such
cases the Attorney General may not proceed in the name of
the United States but only on behalf of a particular agency
or the President.
Justice's proposed letter opposes 11 (c), primarily for the
reason stated in our earlier memorandum: the Attorney
General always represents the United States, even when
exercising the Executive's prerogative to determine that an
Act of Congress is unconstitutional. Justice's draft goes
on to make several other subsidiary objections, the most
prominent being that the provision, if included at all,
should be limited to inter-branch disputes. The Attorney
General often refrains from defending the consitutionality
of a provision in a manner unobjectionable to Congress,
e.g., when the Supreme Court has indicated that a provision
not affecting relations between the branches is
unconstitutional.
I have no objection to the proposed report.
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 - OUTGOING
H INTERNAL
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Jim Murr
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Justice Report on See. 11 (c) of
Bill R. 2912, the DOJ FY '84 authorization
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
Cr Holland
ORIGINATOR 83,07,22
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W AT 18
A 83,07,22
5 83,07,25
NOON
Referral Note:
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ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
I * Info Copy Only/No Action Necessary
A Answered
C Completed
C - Comment/Recommendation
R Direct Reply w/Copy
B * Non-Special Referral
S Suspended
D - Draft Response
S For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
Frank Seidl
Take necessory action
TO
Approval or signature
Fred Fielding
Comment
Mike Horowitz
Prepare reply
Mike Uhlmann
Discuss with me
For your information
See remarks below
FROM
Jim Murr (x4870) 700M
7/22/83
DATE
REMARKS
Justice Report on Sec. 11 (c) of
H.R. 2912, the DOJ FY'84 Authorization
Bill
There was a consensus during our earlier
review of this bill that sec. 11 (c)
is objectionable. This section provides
that, in certain cases, the Attorney
General shall not proceed with a legal
action in the name of the United States.
The attached Justice report expresses
opposition to sec. 11 (c).
Unless I
bear otherwi from you by noon
on Monday, July 25, we will clear
the report.
22
Attachment
SPECIAL
OMB FORM 4
REV AUG 70
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
Honorable Peter W. Rodino, Jr.
Chairman
Committee on the Judiciary
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
Section 11 (c) of the Department of Justice Appropriations
Authorization Act for Fiscal Year 1984, H.R. 2912, as reported
by the Committee on May 16, 1983, provides:
"During Fiscal Year 1984 and notwithstanding
any other provision of law, in any case in which
the Attorney General determines that the Department
of Justice will refrain from defending or will con-
test the constitutionality of any statute or provision
of law, or in which the Attorney General determines
that the Department of Justice will bring, or authorizes
the bringing of, an action challenging or contesting
the validity of any statute or provision of law, the
Attorney General shall not proceed in the name of the
United States, but only in the name of the agency or
department on whose behalf the Attorney General
appears, or the President if the Attorney General
appears on the President's behalf."
The Committee Report on the bill states that the purpose of the
provision, which is proposed in this form for the first time, /
is "to prohibit the Department of Justice from filing suit,
as was recently done in the United States of America V. U.S.
House of Representatives, et. al., in the name of the United
States against a part of one of the branches which make up
the sovereign United States.' H.R. Rep. No. 181, 98th
Cong., 1st Sess. 16 (1983). We oppose inclusion of § 11 (c)
in its present form in H.R. 2912 for the reasons set forth below.
/ A differently worded provision in the Department's Appropriations
Authorization Act for FY 1980 deals with the same subject matter.
See § 21 (c) of P.L. No. 96-132, 93 Stat. 1049-50, incorporated in
P.L. No. 97-92. We have similar interpretive difficulties with this
enacted version which we would be glad to share with the Committee
if it so desires.
We assume that it was merely because of a drafting error that
§ 11 (c), unlike § 11 (a) and (b), is not explicitly limited to
federal statutes. On its face, § 11 (c) appears to apply to state
statutes as well. There are times when the Attorney General brings
suit to challenge a state statute on the ground that it is preempted
by the Constitution or a federal statute. We do not believe that
Congress intended in H.R. 2912 to address that situation, which does
not create any potential conflict between the Executive and Legisla-
tive Branches. We assume, therefore, that § 11 (c) is intended, like
§ 11 (a) and (b), to apply only to federal statutes. The remainder
of our discussion depends on this assumption, which should be
clarified in the text of the provision if it is enacted.
Section 11 (c) raises several problems. When the Attorney
General, on behalf of the President, evaluates the constitutionality
of a provision of federal law, and makes a determination not to
enforce or defend that provision, he exercises the Executive's con-
stitutional obligation flowing from the "take care" Clause of Art.
II, § 3. Such instances are exceedingly rare. Nevertheless, they
have occurred in the past, particularly when the Department con-
cluded that a statutory provision intruded on the Executive's con-
stitutional prerogatives. In even fewer situations, the Department
concluded that prior precedent overwhelmingly indicated that a
federal statute was unconstitutional. To the extent that the pro-
vision prevents the Attorney General from informing the Court that
the views of the Executive Branch are the views of the United States
insofar as the enforcement of the statute is concerned, we believe
that it constitutes an impermissible infringement on the powers of
the Executive Branch as the legal representative of the United States.
Section 11 (c) as drafted is overbroad if its purpose is merely
to prohibit the Attorney General from proceeding in the name of the
United States in cases in which Congress or one House thereof is
a party. By its terms, § 11 (c) applies to all cases in which the
Attorney General (1) refrains from defending, or contests the con-
stitutionality of, any federal statute, or (2) brings or authorizes
an action to challenge or contest the validity of any federal statute.
There are cases in the first category in which the Attorney General
concludes, on the basis of prior precedent, that he cannot defend a
federal statute. Until the recent amendments to the social security
laws, for example, certain provisions contained gender-based distinc-
tions long after repeated holdings by the Supreme Court and the lower
federal courts that such distinctions were unconstitutional. The
Attorney General has at times concluded, in the fulfillment of his
constitutional responsibilities, that he could not defend such pro-
visions, at least after they had been held unconstitutional by a trial
court. In light of the amendments by congress to the social security
laws, termination of the defense of the prior version actually may be
said to effectuate the intent of Congress, as well as, of course, to
uphold the Constitution. Moreover, we are unaware of any situation
as described by the second clause where the Attorney General has
authorized the bringing of "an action to challenge or contest the
- 2 -
validity of any statute or provision of law" other than in an
interbranch dispute. For these reasons, we believe that, at a
bare minimum, § (c) should be amended explicitly to limit its
application to cases in which Congress is a party.
There are independent reasons for deleting the first clause
of § 11 (c). This first category seems to describe cases in which
the Government is the defendant. Thus, on the premise that the
only cases to which Congress intends § (c) to apply are cases
involving interbranch disputes between the Executive and
Legislative Branches, this first clause of $ 11 (c) is unnecessary
because Congress would be the plaintiff in these cases and can
effectuate its intent that the Executive Branch not call itself
"the United States" simply by styling the case to name the
defendant by the agency or department, or the President, as
Congress apparently wishes the defendant to be called.
The application of the first clause of § 11 (c) to cases
other than those in which the Congress is the plaintiff is
troublesome, not only because it does not accord with the intent
of Congress as described in the House Report quoted above, but
also because the specific procedure envisioned is unclear. If
the plaintiff has named the "United States" as the defendant, and
that designation is otherwise correct in the particular case, we
are unclear just what the Attorney General should do in order not
to "proceed in the name of the United States." Presumably, the
Attorney General, upon determining that he cannot defend the
constitutionality of the provision, / is expected also to notify
that court that the proper named defendant from that point on is
the agency or department involved, or the President, and to move
for "substitution" of the defendant. If the first clause of
$ 11 (c) is retained, some clarification of what is meant by "not
proceed [ing] in the name of the United States" in cases in which
the "United States" is the correct named defendant would seem to
be necessary.
There is also a discrepancy between the first and second
categories of cases to which $ 11 (c) now refers. The first
clause refers to a case contesting the "constitutionality" of a
provision of law, while the second clause refers to an action
challenging or contesting the "validity" of a provision of law.
1 / The first clause of § 11 (c) also relates to instances in
which the Attorney General "will contest the constitutionality of
a provision of law." We are not aware of a case in which the
United States as the defendant has "contested" the
constitutionality of a provision of law. We believe that the
better description of the Attorney General's action in cases of
this sort is simply that he refrains from defending the
provision. We recommend that if the first clause of § 11 (c) is
to be retained at all, it should be amended to delete the words
"or will contest."
-3-
The Executive has historically been exceedingly cautious in
exercising its independent responsibility and authority to assess
the enforceability of a provision of law. We believe that the
proper characterization of the assessment which is made relates
to the narrower concept of the "constitutionality" and not what
may be the broader concept of the "validity" of the provision.
Thus, we recommend that the second clause of § 11 (c) be amended
by substituting "constitutionality" for "validity."
The Office of Management and Budget has advised that there
is no objection to the submission of this report from the stand-
point of the Administration's program.
Sincerely,
Robert A. McConnell
Assistant Attorney General
- 4 -
THE WHITE HOUSE
WASHINGTON
June 7, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DR
SUBJECT:
H.R. 2912 as Reported (Report Number 98-181)
the "Department of Justice Appropriation
Authorization Act, Fiscal Year 1984"
James Murr of OMB has asked for our views by close of
business June 10, 1983 on sections 11 and 13 of H.R. 2912,
the Department of Justice Appropriation Authorization Act
for Fiscal Year 1984. The bill has been reported out of the
House Judiciary Committee.
Section 11 requires the Attorney General to report to
Congress whenever he decides either to refrain from
enforcing an act of Congress on the ground that it is
unconstitutional, or to contest or refrain from defending
the constitutionality of an act of Congress. In addition,
section 11 (c) provides that in the latter circumstance the
Attorney General shall proceed not in the name of the United
States but only in the name of the department on whose
behalf he appears, or in the President's name if he appears
on behalf of the President. Section 13 would suspend the
effectiveness of the new FBI Guidelines until January 1,
1984.
The requirement that the Attorney General advise Congress
when he takes action or declines to take action on the
ground that an act of Congress is unconstitutional does not
strike me as objectionable. The Committees report notes
that such a requirement has been added as a floor amendment
to the Justice authorization bill "each year." Section
11 (c) is unprecedented, however, and highly objectionable.
Whenever the Attorney General appears in court, he represents
the United States, regardless of whether the Congress agrees
with his position. Part of the Attorney General's representa-
tion of the United States involves the exercise of the
independent prerogative of the Chief Executive to determine
that a given act is unconstitutional.
Although the impact of section 11 (c) would be largely
symbolic, we should nonetheless be loath to accept any
infringement of the related principles that the chief legal
-2-
officer of the United States acts for the United States --
not just the executive branch -- and that he so acts even
when deciding that an act of Congress is unconstitutional.
Section 13 would suspend the new FBI Domestic Security,
Informant, and Undercover Guidelines until January 1, 1984.
The Committee report states that the purpose of the delay is
to permit consultation between the Committee and the Depart-
ment on the new guidelines. In fact, such consultation took
place prior to announcement of the new guidelines and again
after their promulgation. The new guidelines are the result
of a painstaking process, and reverting to the old
guidelines for a "consultation period" would cause confusion
in the field and demoralize the agents.
I have drafted a memorandum to Murr registering our ob-
jections to subsection 11 (c) and section 13.
Attachment
THE WHITE HOUSE
WASHINGTON
June 7, 1983
MEMORANDUM FOR JAMES C. MURR
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
H.R. 2912 as Reported (Report Number 98-181)
the "Department of Justice Appropriation
Authorization Act, Fiscal Year 1984"
You have asked for our views on sections 11 and 13 of the
above-referenced reported bill. Subsections 11 (a) and 11 (b)
would require that the Attorney General file reports with
Congress in the event that he takes certain action or
declines to take certain action on the ground that an Act of
Congress is unconstitutional. We have no serious objection
to these provisions.
Subsection 11 (c) provides that under certain specified
circumstances the Attorney General shall not proceed in the
name of the United States but only in the name of the
department or agency on whose behalf he appears, or the
President if he appears on behalf of the President. Under
our system of separated powers, however, whenever the
Attorney General appears in court, he appears on behalf of
the United States, even if he exercises the independent
prerogative of the Chief Executive to determine that an Act
of Congress is unconstitutional. We object to subsection
11 (c) as an infringement on the principle that part of the
Executive's authority and responsibility to enforce the law
on behalf of the United States includes the authority to
assess the constitutionality of legislation.
While we defer to the Department of Justice with respect to
section 13, it is our understanding that the department has
already had extensive consultations with the Committee with
respect to the new FBI Guidelines. It is difficult to see
what purpose would be served by delay in implementing the
new rules, and any such delay could have the adverse effect
of confusing and demoralizing agents in the field.
CC: The Attorney General
FFF: JGR:aw 6/7/83
CC: FFFielding/JGRoberts/Subj./Chron
THE WHITE HOUSE
WASHINGTON
June 7, 1983
MEMORANDUM FOR JAMES C. MURR
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
H.R. 2912 as Reported (Report Number 98-181)
the "Department of Justice Appropriation
Authorization Act, Fiscal Year 1984"
You have asked for our views on sections 11 and 13 of the
above-referenced reported bill. Subsections 11 (a) and 11 (b)
would require that the Attorney General file reports with
Congress in the event that he takes certain action or
declines to take certain action on the ground that an Act of
Congress is unconstitutional. We have no serious objection
to these provisions.
Subsection 11 (c) provides that under certain specified
circumstances the Attorney General shall not proceed in the
name of the United States but only in the name of the
department or agency on whose behalf he appears, or the
President if he appears on behalf of the President. Under
our system of separated powers, however, whenever the
Attorney General appears in court, he appears on behalf of
the United States, even if he exercises the independent
prerogative of the Chief Executive to determine that an Act
of Congress is unconstitutional. We object to subsection
11 (c) as an infringement on the principle that part of the
Executive's authority and responsibility to enforce the law
on behalf of the United States includes the authority to
assess the constitutionality of legislation.
While we defer to the Department of Justice with respect to
section 13, it is our understanding that the department has
already had extensive consultations with the Committee with
respect to the new FBI Guidelines. It is difficult to see
what purpose would be served by delay in implementing the
new rules, and any such delay could have the adverse effect
of confusing and demoralizing agents in the field.
FFF: JGR: 6/7/83
CC: FFFielding/JGRoberts/Subj./Chror
ID #.
144992 CU
WHITE HOUSE
FI004
CORRESPONDENCE TRACKING WORKSHEET
o - OUTGOING
Roberts
H - INTERNAL
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent: James C. MURR
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: He 2912.00 reported (Report Number 98-181)
the Department of Justice appropriation authorization
act, Fiscal year 1984
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
WHOIL
ORIGINATOR
83,06,01" WG
/
/
Referral Note:
CUAT 18
$
D 83,06,01
5 83,06,11
we
Referral Note:
/
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/
/
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Referral Note:
/ /
/
/
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Referral Note:
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Referral Note:
ACTION CODES:
DISPOSITION CODES:
A . Appropriate Action
I . Info Copy Only/No Action Necessary
A Answered
C Completed
C - Comment/Recommendation
R. . Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D - Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
X7332
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
LISTED STATES
WASHINGTON, D.C. 20503
May 27, 1983
LEGISLATIVE REFERRAL MEMORANDUM
Legislative Liaison Officer
TO:
144992cu
Department of Justice
Department of Health and Human Services
SUBJECT:
H.R. 2912, as reported (Report Number 98-181),
the "Department of Justice Appropriation
Authorization Act, Fiscal Year 1984."
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than cob June 10, 1983.
Direct your questions to me at (395-4870)
James C. Murr for
Assistant Director for
Legislative Reference
Enclosures
CC: Roger Greene
Frank Seidl
Adrian Curtis
Tara Treacy
K. Wilson
V. Zafra (Sec. (2(8) (A))
M. Whlmann (Secs. 11 and 13)
F. Fielding (Secs. 11 and 13)
M. Horowitz (Secs. 11 and 13)
25
1
Justice's program structure submitted to the Commit-
2
tees on the Judiciary of the Senate and the House of
3
Representatives,
4
(3) any reprograming action which involves less
5
than the amounts specified in paragraphs (1) and (2)
6
if such action would have the effect of making signifi-
7
cant program changes and committing substantive pro-
8
gram funding requirements in future years,
9
(4) increasing personnel or funds by any means
10
for any project or program for which funds or other re-
11
sources have been restricted,
12
(5) creation of new programs or significant aug-
13
mentation of existing programs,
14
(6) reorganization of offices or programs, and
15
(7) significant relocation of offices or employees.
16
SEC. 10. Notwithstanding section 501(e)(2)(B) of the
17 Refugee Education Assistance Act of 1980 (Public Law 96-
18 422; 94 Stat. 1810), funds may be expended for assistance
19 with respect to Cuban and Haitian entrants as authorized
20 under section 501(c) of such Act.
21
SEC. 11. (a) The Attorney General shall transmit a
22 report to each House of the Congress in any case in which the
23 Attorney General-
24
(1) establishes a policy to refrain from the en-
25
forcement, in fiscal year 1984, of any provision of law
26
1
enacted by the Congress, the enforcement of which is
2
the responsibility of the Department of Justice, because
3
of the position of the Department of Justice that such
4
provision of law is not constitutional, or
5
(2) determines that the Department of Justice will
6
contest, or will refrain from defending, in fiscal year
7
1984, any provision of law enacted by the Congress in
8
any proceeding before any court of the United States,
9
or in any administrative or other proceeding, because
10
of the position of the Department of Justice that such
11
provision of law is not constitutional.
12
(b) Any report required under subsection (a) shall be
13 transmitted not later than thirty days after the Attorney Gen-
14 eral establishes the policy specified in subsection (a)(1) or
15 makes the determination specified in subsection (a)(2). Each
16 such report shall—
17
(1) specify the provision of law involved,
18
(2) include a detailed statement of the reasons for
19
the position of the Department of Justice that such pro-
20
vision of law is not constitutional, and
21
(3) in the case of a determination specified in
22
subsection (a)(2), indicate the nature of the judicial,
23
administrative, or other proceeding involved.
24
(c) During fiscal year 1984 and notwithstanding any
25 other provision of law, in any case in which the Attorney
HR 2912 RH
27
1 General determines that the Department of Justice will re-
2 frain from defending or will contest the constitutionality of
3 any statute or provision of law, or in which the Attorney
4 General determines that the Department of Justice will
5 bring, or authorizes the bringing of, an action challenging or
6 contesting the validity of any statute or provision of law, the
7 Attorney General shall not proceed in the name of the United
8 States, but only in the name of the agency or department on
9 whose behalf the Attorney General appears, or the President
10 if the Attorney General appears on the President's behalf.
11
SEC. 12. Section 408(c) of the Act of November 6,
12 1978 (Public Law 95-598-92 Stat. 2687(c)) is amended by
13 striking out "April 1984" and inserting in lieu thereof
14 "September 30, 1986".
15
SEC. 13. All investigations conducted prior to January
16 1, 1984, by the Federal Bureau of Investigation of activities
17 relating to domestic security shall be conducted in accordance
18 with-
19
(1) The Attorney General's Guidelines on Do-
20
mestic Security Investigations,
21
(2) The Attorney General's Guidelines on Use of
22
Informants in Domestic Security, Organized Crime,
23
and Other Criminal Investigations, and
24
(3) The Attorney General's Guidelines on FBI
25
Undercover Operations,
28
1 as in effect on October 1, 1982.
2
SEC. 14. None of the sums authorized to be appropri-
3 ated by this Act may be used or any activity the purpose of
4 which is to overturn or alter the per se prohibition of resale
5 price maintenance, in effect under the Federal antitrust laws.
6
SEC. 15. None of the sums authorized to be appropri-
7 ated by this Act may be used to transfer any position from
8 any legal division of the Department of Justice to any office
9 of any United States Attorney or to pay the salary of any
10 employee occupying any such position so transferred after
11 April 1, 1983.
HR 2912 RH
27
eral determines that the Department of Justice will re-
from defending or will contest the constitutionality of
statute or provision of law, or in which the Attorney
determines that the Department of Justice will
or authorizes the bringing of, an action challenging or
esting the validity of any statute or provision of law, the
General shall not proceed in the name of the United
but only in the name of the agency or department on
behalf the Attorney General appears, or the President
Attorney General appears on the President's behalf.
SEC. 12. Section 408(c) of the Act of November 6,
(Public Law 95-598-92 Stat. 2687(c)) is amended by
out "April 1984" and inserting in lieu thereof
ptember 30, 1986".
SEC. 13. All investigations conducted prior to January
984, by the Federal Bureau of Investigation of activities
to domestic security shall be conducted in accordance
(1) The Attorney General's Guidelines on Do-
mestic Security Investigations,
(2) The Attorney General's Guidelines on Use of
Informants in Domestic Security, Organized Crime,
and Other Criminal Investigations, and
(3) The Attorney General's Guidelines on FBI
Undercover Operations,
28
1 as in effect on October 1, 1982.
2
SEC. 14. None of the sums authorized to be appropri-
3 ated by this Act may be used or any activity the purpose of
4 which is to overturn or otter the per se prohibition of resale
5 price maintenance, in effect under the Federal antitrust laws.
6
SEC. 15. None of the sums authorized to be appropri-
7 ated by this Act may be used to transfer any position from
8 any legal division of the Department of Justice to any office
9 of any United States Attorney or to pay the salary of any
10 employee occupying any such position so transferred after
11 April 1, 1983.
HR 2912 RH
98TH CONGRESS
HOUSE OF REPRESENTATIVES
REPORT
1st Session
No. 98-181
DEPARTMENT OF JUSTICE AUTHORIZATION ACT, FISCAL
YEAR 1984
MAY 16, 1983.-Committed to the Committee of the Whole House on the State of the
Union and ordered to be printed
Mr. RODINO, from the Committee on the Judiciary,
submitted the following
REPORT
together with
ADDITIONAL AND SUPPLEMENTAL VIEWS
[To accompany H.R. 2912]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 2912) to authorize appropriations to carry out the activities of
the Department of Justice for fiscal year 1984, and for other pur-
poses, having considered the same, report favorably thereon with
an amendment and recommend that the bill as amended do pass.
The amendment to the text of the bill is a complete substitute
therefor and appears in italic type in the reported bill.
PURPOSE
H.R. 2912 authorizes appropriations for the purpose of carrying
out most activities of the Department of Justice for the fiscal year
beginning October 1, 1983.
BACKGROUND
Since 1837 the Rules of the House of Representatives have in-
cluded the provision now found at clause 2 of rule XXI:
[N]o appropriation shall be reported in any general ap-
propriation bill, or be in order as an amendment thereto,
for any expenditure not previously authorized by law.
11-006 0
2
3
The Department of Justice was created by act of Congress in
Section 2 of the bill authorizes appropriations in the following
1870, more than 30 years following the adoption of the rule. Legis-
amounts:
lative jurisdiction over almost every activity within the Depart-
(1) For general administration, $56,364,000;
ment reposes in the Judiciary Committee. Yet the Department,
(2) For the U.S. Parole Commission, $7,836,000;
until 1978, had never been required to come before the Judiciary
(3) For general legal activities, $160,440,000;
Committee, nor indeed before the larger Congress, for authoriza-
(4) For the Antitrust Division, $45,791,000;
tion of its annual appropriations.
(5) For the Foreign Claims Settlement Commission, $954,000;
In 1976, however, the Congress enacted Public Law 94-503, title
(6) For the U.S. Attorneys and Marshals, $362,707,000;
II of which explicitly states that beginning in fiscal year 1979 no
(7) For the U.S. Trustees, $10,000,000;
sums shall be deemed to be authorized to be appropriated for the
(8) For support of U.S. prisoners, $44,768,000;
Department of Justice. Under the terms of the 1976 statute, specif-
(9) For fees and expenses of witnesses, $38,266,000;
ic authorizing legislation is now required in order for the Depart-
(10) For the Community Relations Service, $33,238,000;
(11) For the Federal Bureau of Investigation, $1,055,690,000;
ment to qualify for the appropriating process.¹
The bill, H.R. 2912, was retained at the full Committee. Prior to
(12) For the Immigration and Naturalization Service,
$606,807,000;
the mark up in the Committee, each of the subcommittees of the
(13) For the Drug Enforcement Administration, $284,473,000;
Committee on the Judiciary had an opportunity to examine those
(14) For the Federal Prison System, $498,070,000;
aspects of the authorization within their respective jurisdiction.
(15) For organized crime drug enforcement activities $89,949,000;
Several of the subcommittees held oversight hearings and specifi-
The bill also contains one open-ended authorization (Section 5,
cally focused on the authorization process in those hearings. Each
"such sums as may be necessary") for fiscal 1984. The authoriza-
of the subcommittees then had the opportunity to submit their rec-
tion therein provides for nondiscretionary increases in salary, pay,
ommendations for the authorization bill. The recommendations of
retirement and other employee benefits authorized by law.
the subcommittees were incorporated in H.R. 2912. On May 10 and
11, 1983, the full Committee met to mark up H.R. 2912 and by
CIVIL RIGHTS DIVISION
voice vote, a quorum being present, ordered the bill reported as
The Committee takes notice that for the first time since its cre-
amended.
ation in 1957, attorneys representing minorities, women and the
MONEYS PROVIDED BY THE BILL
handicapped have come before this Committee and made passion-
ate pleas that we take steps to prevent the Civil Rights Division
SECTION 2. The provisions of H.R. 2912 are based on the budget
from doing "harm" to their clients in pending civil rights litiga-
proposals of the Administration, with certain exceptions. The five
tion. Without exception, they catalogued instances where the Divi-
exceptions are:
sion's changed civil rights policies have sought to limit the rights of
1. continued authorization for the U.S. Trustees in Bankrupt-
protected classes. In fact, in a May 1, 1983 article for the Hartford
cy ($10 million);
Courant, the former Assistant Attorney General for Civil Rights
2. an increase of $8.85 million for the DEA;
described activities of the current Civil Rights Division as a "War
3. an increase of $94.2 million for INS ($26 million trans-
Against Civil Rights."
ferred to CRS);
In earlier years many of these same witnesses have asked this
4. an increase of $17 million for the Federal Prison System;
Committee to increase the Division's resources and to urge its par-
5. an increase of $269 thousand for the Community Relations
ticipation in greater numbers of civil rights cases. Some of those
Service.
same witnesses now ask that we consider dismantling the Division
The bill, as reported by the Committee, authorizes $3,295,353,000
and transferring staff, resources and litigating authority to other
($3.3 billion) for the Department for fiscal 1984. Authorizations for
federal agencies or appointing a special counsel to investigate the
fiscal year 1984 for the Civil Rights Division, the U.S. Trustees in
"malfeasance" of the Division's leadership.
Bankruptcy, the Community Relations Service, the Immigration
The present Assistant Attorney General is proud of the Divi-
and Naturalization Service, the Office of Special Investigations
sion's increased number of a criminal civil rights prosecutions-a
(Nazi War Criminals), the Drug Enforcement Administration, and
record which he suggests is at an all-time high-and is seeking in-
the Federal Prison System are discussed below.
creased staff for this activity in 1984. But we must wonder whether
this is the best use of the Division's limited resources. As one wit-
1 Sec. 204. No sums shall be deemed to be authorized to be appropriated for any fiscal year
ness pointed out, the Detroit Police Chief submitted an affidavit op-
beginning on or after October 1, 1978, for the Department of Justice (including any bureau,
posing the Division's recently announced challenge to the police de-
agency, or other similar subdivision thereof) except as specifically authorized by Act of Congress
partment's affirmative action plan in which he stated that, "[T]he
with respect to such fiscal year. Neither the creation of a subdivision in the Department of Jus-
tice, nor the authorization of an activity of the Department, any subdivision, or officer thereof
success which earned the Detroit Police Department this award
shall be deemed in itself to be authorization of appropriations for the Department of Justice,
(presented by Attorney General Smith to the Department for its ef-
such subdivision, or activity with respect to any fiscal year beginning on or after October 1,
1978. (Public Law 94-503, Oct. 15, 1976, 90 Stat. 2427).
fective crime fighting program) is a direct result of the Assistant
4
5
Attorney General's program which the Department of Justice now
able order of deportation and will leave as soon as a country can be
seeks to halt." It was the view of this witness that school desegre-
found willing to accept him. Thirteen other war criminals are in
gation and affirmative action will do more to improve the quality
various stages of deportation proceedings. A landmark decision in
of life in this nation than criminal prosecutions against individuals
OSI's favor was rendered by the Supreme Court in United States V.
for police brutality.
Fedorenko, 449 U.S. 489 (January 21, 1981), which will significantly
These are serious allegations which the Committee must review
ease the Government's burden of proof in denaturalization actions.
in further hearings during the current and 1984 fiscal years.
Particularly after these successes, the Committee feels a reduction
in OSI's budget is unwarranted.
OFFICE OF SPECIAL INVESTIGATIONS
In addition to believing that the $2.753 million level is necessary,
For the sixth consecutive year, the Committee has specifically
the Committee also feels that earmaking of the amount is required.
earmarked funds for the Office of Special Investigations (OSI) in
Despite the Committee's expressed wishes, there have been a
the Criminal Division, which is responsible for investigating and
number of problems over the years in making certain that funds
prosecuting denaturalization and deportation cases against suspect-
authorized for Nazi investigations and prosecutions have actually
ed Nazi war criminals who have found sanctuary in the United
been made available. In fiscal year 1983, for example, the Depart-
States.
ment reprogrammed some $308,000 out of OSI. (Since the Commit-
For fiscal year 1984 the bill sets aside $2.753 million for OSI, the
tee's authorization bill for fiscal year 1983 was not enacted, there
same amount earmarked for the unit in last year's authorization
was no barrier to this reprogramming.) That reprogramming, and
bill. This level is $77,000 more than the $2.676 million that was re-
past bureaucratic problems, make it imperative that we continue to
quested by the Department for fiscal year 1984. The Committee be-
mandate that this small amount of funding be set aside for OSI.
lieves the budget reduction proposed by the Department, although
More importantly, the Committee's earmarking of these monies
small, is unwarranted on both substantive and symbolic grounds.
over the past six years has become a symbol of our commitment to
As a substantive matter, the Committee notes that OSI's litiga-
make certain that these criminals are finally brought to justice.
tion activity has increased markedly in the past two years and is
Like a reduction in the authorization level, deletion of the ear-
expected to continue to rise. Thirty-one cases have now been filed
marking language would have unfortunate symbolic repercussions.
against alleged war criminals (12 more than in 1981) of which 26
The Committee first raised the Nazi war criminal issue publicly
remain pending, 11 denaturalization proceedings and 15 deporta-
in 1974, and since that time has been responsible for creating OSI,
tion actions. (The five other cases-all denaturalization proceed-
for drafting the law providing for the deportation of Nazi persecu-
ings-were terminated after the defendants died.) This additional
tors, and for first approaching foreign governments about cooperat-
trial work will appreciably increase expenditures, especially for
ing in these investigations. In short, Committee has devoted sub-
travel and associated costs.
stantial energies to this matter over the past decade and intends to
The investigation caseload also does not warrant a cut in OSI's
see it through to a successful conclusion. This is a short-term
budget. Approximately 267 cases are pending in the investigative
project to which our nation is morally committed. It should be al-
stage (not including those matters in litigation), and over 100 new
lowed to coninue with whatever resources are necessary.
cases have been referred to the unit in the past year. Despite this
U.S. TRUSTEES IN BANKRUPTCY PROGRAM
heavy burden, the Committee notes with approval the fact that OSI
has made substantial inroads in the 651 cases which have required
The United States Trustees are charged with supervising the ad-
investigation. Of the 350 cases inherited by OSI when it was estab-
ministration of cases filed pursuant to chapters 7, 11, and 13 of
lished in 1979, 263 have now been, closed. Of the 301 cases which
title 11 in the eighteen judicial districts set forth in 11 U.S.C.
have been referred to, or discovered by, the unit since its creation,
§ 1501. In general, among many other duties, the U.S. Trustees are
121 have been closed. Through the first four months of 1983, 25
responsible for policing the bankruptcy system, for ensuring that
cases have been closed.
bankruptcy cases are carefully and correctly administered, and for
As a symbolic matter, the Committee also believes that the De-
ensuring that debtors do not improperly dispose of or waste assets
partment's proposed reduction in OSI's budget is unwise. Such a re-
to which creditors are entitled. The U.S. Trustees monitor the proc-
duction would convey precisely the wrong signal about our nation's
ess of appointments, the hiring of attorneys and experts, fees, ex-
renewed efforts to live up the spirit of Nuremburg. After a sordid
penses, and the day-to-day operations of reorganizing businesses to
thirty-five year history of inaction on the Nazi war criminal prob-
avoid favoritism and excessive costs of case administration and at-
lem, our government has finally moved aggressively to prosecute
tempt to eliminate any actual dishonesty or impropriety. In a chap-
those who have found refuge here. At the Committee's insistence,
ter 11 business reorganization case, the U.S. Trustees, or a credi-
OSI was set up in the Criminal Division and given the funding and
tors' committee functioning under the supervision of the U.S.
staffing to do its job. Its subsequent achievements have been nota-
Trusee, ensure that a case is not collapsing, that taxes and insur-
ble; just one month ago, Hans Lipschis became the first alleged war
ance are being paid, that the public health is not being threatened,
criminal in over 30 years deported from the United States. A
and that the bankruptcy case itself is not running up bills which
second was criminal suspect, Valerian Trifa is under a non-appeal-
cannot be paid.
6
7
Notwithstanding that the pilot program for U.S. Trustees has
ting, excluding, deporting, adjudicating status of, and naturalizing
been underfunded and understaffed since it began, the program
aliens. The Border Patrol of INS patrols the U.S. borders between
has been performing well in meeting its major objectives. H.R. 2912
land ports of entry; its inspection force checks aliens and citizens
provides that the pilot program be funded at $10 million for fiscal
coming into the country through international airports, seaports,
year 1984 to ensure that the U.S. Trustees program can continue to
and the land ports of entry; its adjudication force determines and
fully operate in the eighteen pilot judicial districts.
adjusts the status of aliens; its naturalization examiners review
COMMUNITY RELATIONS SERVICE
and investigate applications for naturalization; and its detention
and deportation personnel detain and deport illegal aliens.
Staff in the headquarter and regional offices.-The Committee
H.R. 2912 authorizes a funding level of $606,807,000 for the Im-
believes the Community Relations Service should not reduce its
migration and Naturalization Service for fiscal year 1984. It fur-
staff below the approximately 100 persons currently on board. The
ther establishes a permanent position level of 12,214. Committee
Committee has authorized funds for the purpose of maintaining the
action increases funding by $94,201,000 and positions by 1,713 over
staff at 100 persons, nation-wide; this is exclusive of the 30 posi-
the budget request submitted by the Administration.
tions transferred from the Department of Health and Human Serv-
The bill provides for the following modifications to the fiscal year
ices to administer the program for Cuban and Haitian entrant pro-
1984 budget request as submitted by the Administration for the Im-
gram discussed below.
migration and Naturalization Service: ($26 million of the $94 mil-
Cuban and Haitian entrants.-Administering a program which
lion increase indicated above was subsequently transferred to the
provides for the placement of and services to Cuban and Haitian
Community Relations Service for Cuban/Haitians)
Entrants is a new function for the Community Relations Service
(CRS) but one which the Committee believes CRS is particularly
able to handle because of its expertise in assessing community sen-
sitivity. The Committee is also mindful that this new function
could compromise the primary mission of the Service which is to
mediate and conciliate community conflicts arising from discrimi-
nation based on race, color or national origin.
CRS is directed to provide the Committee with a report on the
administration of this program. The report should be submitted by
September 30, 1984 and should address a number of issues includ-
ing:
1. an assessment of the transfer of staff and resources from
the Office of Refugee Resettlement in the Department of
Health and Human Services to the Community Relations Serv-
ice,
2. an assessment of the effectiveness of this program. The as-
sessment should include a discussion of the progress under the
court orders of Judge Shoob, and Judge Spellman. It should
also address the results of the secondary resettlement program.
Finally, the monitoring activities in all aspects of the program
should be analyzed, and
3. an assessment of the impact of this new function on the
traditional civil rights mandate of the Community Relations
Service should be discussed.
An interim report addressing the points set forth above should
be available for the Committee's review during consideration of the
fiscal year 1985 Authorization Request of the Service.
IMMIGRATION AND NATURALIZATION SERVICE
The responsibility for administering the Immigration and Na-
tionality Act of 1952, as amended (8 U.S.C. 1011 et seq.), rests with
the Immigration and Naturalization Service of the Department of
Justice and the Bureau of Consular Affairs of the Department of
State. The Immigration and Naturalization Service (INS) adminis-
ters and enforces the provisions of that act which relate to admit-
IMMIGRATION AND NATURALIZATION SERVICE FISCAL YEAR 1984 DECISION UNIT COSTS
[Dollars in thousands]
1984 congressional submission
House authorization committee
House authorization committee allowance
Requested add-on
Decision unit
Permanent
Permanent
WY
BA
Permanent
WY
positions
WY
BA
positions
BA
positions
Inspections
1,357
$1,798
$69,962
255
$191
$7,310
1,612
$1,989
$77,272
Border patrol
2,866
2,810
113,554
1,052
789
46,658
3,918
3,599
160,212
Investigations
1,029
793
42,294
141
8,556
1,029
934
50,850
Antismuggling
299
278
13,352
85
64
2,526
384
342
15,878
Detention and deportation
1,040
1,077
71,893
118
89
8,898
1,158
1,166
80,791
Subtotal
6,591
6,756
311,055
1,510
1,274
73,948
8,101
8,030
385,003
Adjudications and naturalization
1,143
1,151
40,616
140
105
4,672
1,283
1,256
45,288
Refugees and overseas
108
115
7,529
108
115
7,529
Subtotal
1,251
1,266
48,145
140
105
4,672
1,391
1,371
52,817
8
Training
61
60
6,378
10
8
396
71
68
6,774
Data and communications systems
183
176
47,600
2
2
90
256
178
47,690
Information and records management
1,245
1,288
41,305
1,245
1,288
41,305
Intelligence
26
25
1,614
3
2
151
29
27
1,765
Research and development
2
2
513
1
1
47
3
3
560
Construction and engineering
15
17
4,278
13,485
15
17
17,763
Field management and support
272
281
11,343
272
281
11,343
Legal proceeding
167
153
6,360
13
9
535
180
162
6,895
Subtotal
1,971
2,002
119,391
29
22
14,704
2.000
2,024
134,095
Executive direction and control
196
212
9,291
196
212
9,291
Administrative services
492
473
24,724
34
25
877
526
498
25,601
Subtotal
688
685
34,015
34
25
877
722
710
34,892
Total
10,501
10,709
512,606
1,713
1,426
94,201
12,214
12,135
606,807
immigration".
tions.
tween ports of entry, many others will be using fraudulent means
tries will be seeking to enter the United States surrepitiously be-
mittee to believe that more and more nationals from these coun-
large scale unemployment and underemployment, lead the Com-
tries, coupled with serious internal economic conditions causing
of us. The rapidly rising working age populations of these coun-
by illegal immigrants from Mexico and other countries to the south
It is publicly known that the United States has been inundated
strengthened and improved.
activities of the Immigration and Naturalization Service must be
considers it absolutely necessary that the enforcement and service
Whatever the legislative outcome of H.R. 1510, the Committee
part of the package of recommendations to curb the flow of illegal
cluded that "increased enforcement
should be an integral
considering the enforcement activity relating to immigration, con-
The Select Commission on Immigration and Refugee Policy, in
tion Reform and Control Act of 1983, H.R. 1510.
forcement leading to the implementation of the pending Immigra-
real increases, as well as to provide a sound basis for enhanced en-
seeks to make up for ground lost last year, where there were no
The additional resources called for by the Committee in this bill
ing for the Service was totally disregarded.
send last year with regard to getting increased personnel and fund-
budget submission that the signal the Committee attempted to
increased effort in ADP systems, it can only deduce from the
same as fiscal year 1983. While the Committee is happy to see an
ment and service to the public activities remained essentially the
lion for a National Record Center. The level of funding for enforce-
for including a sum of $20 million for ADP programs and $10 mil-
quest for fiscal year 1984 was mostly a "status quo" budget, except
This year the Committee was surprised to see that the budget re-
positions and in the funding of permanent positions in investiga-
The Committee especially noted the substantial cuts in inspector
ment in fiscal year 1983 was lower than the fiscal year 1982 level.
Committee action, the number of positions allocated to enforce-
tors, border patrol, adjudicators and investigators. In spite of the
tions and $29 million to the budget, mainly for additional inspec-
Last year the Committee recommended an increase of 642 posi-
preciation of the Service's mission.
today can be directly attributed to this inattention and lack of ap-
OMB. The chaotic state of the immigration situation in the U.S.
derfunded, undermanned, and neglected by the Department and by
Service. For years, the Committee has felt that INS has been un-
ment in the attitude of the Department of Justice towards the
mittee expressed some satisfaction in having noted an improve-
Last year in its report on the authorization legislation the Com-
Vienna, Rome, Southeast Asia, and Southern California.
ations during official trips to Frankfurt, Hong Kong, Florida,
after Subcommittee Members observed various aspects of INS oper-
after an oversight/authorization hearing on March 8, 1983 and
Subcommittee on Immigration, Refugees, and International Law
The personnel and funding levels adopted were agreed to by the
6
11
10
families, to the institution, and to the courts. Such assistance
to gain admission, while others will overstay the conditions of their
serves to reduce the filing of frivolous actions.
entry visa or enter into fraudulent marriages in an attempt to
remain in the United States.
The Committee bill adds $5 million to the Department's request
for the National Institute of Corrections, bringing its fiscal year
The principal method of preventing these occurrences is to pro-
1984 funding to $16,665,000. The Committee received testimony this
vide the Immigration and Naturalization Service with sufficient
year about the unmet needs for technical assistance and training
manpower, funding, and support to allow it to meet its statutory
which NIC is requested to fill to help state and local jails and pris-
obligations.
ons. In light of jail and prison overcrowding, the need to improve
The Committee intends to continue its actions on behalf of the
conditions there, and to develop appropriate classificiation proce-
Service until the Department of Justice and the Office of Manage-
dures, additional funds have been added. The Committee has been
ment and Budget demonstrate in a positive manner a commitment
impressed with the important activities of NIC and its efficiency.
to provide INS with all the means necessary to discharge its re-
The Committee is aware of the recent increase in the federal
sponsibilities.
prison population, but agrees that, as the General Accounting
DRUG ENFORCEMENT ADMINISTRATION
Office has noted, that the Bureau of Prisons should make greater
efforts to place more prisoners for reasonable periods of time in
The Drug Enforcement Administration is the lead agency in the
community contract facilities, which are less costly than prison
nation's fight against drug trafficking. The Administration's re-
beds, and assist in the reintegration of the offender into the com-
quest of approximately $275.6 million for fiscal year 1984 does not
munity.
restore the cuts that resulted from the 1982 reprogramming, or
In the past, the Bureau has diverted funds for such use, includ-
provide sufficient resources to the foreign cooperative investiga-
ing transition back into the community during pre-parole and
tions program. The Committee added $8.85 million in H.R. 2912 for
parole periods, and has cutback on community placements and the
these purposes to provide an additional 168 workyears for foreign
period of such placement. This practice is detrimental to the pris-
cooperative investigations (15 WY), state and local training (23
oners and to the supply of community-based resources. Therefore
WY), intelligence (69 WY), and diversion control (61 WY). The Com-
the Committee has added $12 million to add 1,000 beds in contract
mittee believes that $284.47 million is appropriate for the DEA in
community facilities to bring the average daily population to 3,300.
fiscal year 1984.
The Bureau is encouraged to make increased use of such facilities
at the time of commitment, when appropriate, and for the transi-
FEDERAL PRISON SYSTEM
tion back to the community.
The Committee has approved three modifications from the De-
The Committee recommends that the Bureau of Prisons increase
partment of Justice's request: (1) removal of the $100,000 ceiling on
its programming for relevant educational and vocational training
the Bureau of Prisons legal assistance program; (2) an additional $5
and for parenting programs, to expedite the reintegration of the of-
million for the National Institute of Corrections; and (3) an addi-
fender back to his or her community. It also recommends that ade-
tional $12 million to add to the Bureau's request which will in-
quate procedures be developed to insure quality medical assistance
crease by 1,000 the number of beds available in community correc-
to inmates, including through the Public Health Service, where ap-
tions contract facilities. The reasons for each of these modifications
propriate.
are listed below.
The Bureau is encouraged to continually examine the security
The $100,000 ceiling on inmate legal assistance has been re-
and custody needs of its inmates and to designate and transfer of-
moved, since the Committee finds that, consistent with Supreme
fenders to less secure facilities when appropriate. The Bureau is
Court rulings, reasonable access to legal assistance and materials is
urged to open at least one minimum security camp to women,
necessary for inmates and helpful to the institutions, as well.
based on documentation in 1980 that almost 50 percent of the
There are now approximately 30,000 prisoners in federal prisons,
women were classified at level 1 security. No camps exist for
many of them at great distances from their families, and some-
women, although the Bureau has at least 15 camps housing ap-
times in remote areas.
proximately 4,000 male inmates.
Presently only 13 of the approximately 40 institutions are receiv-
OTHER PROVISIONS
ing any funding through the Bureau to improve inmate legal serv-
ices at the total level of approximately $100,000. The removal of
Section 7. Certain FBI undercover operation exemptions and report-
the ceiling is meant to encourage the Bureau to expand these serv-
ing requirements
ices to more institutions and, where appropriate to increase the
Since fiscal year 1978, Justice Department authorization acts (in-
annual contribution. The Committee recognizes the value of provid-
cluding continuing resolutions) have included a section that pro-
ing inmate legal services to assist inmates in resolving legal dis-
vides exemptions for FBI undercover activities from various bank-
putes which may exist relating to their confinement or be compli-
ing, leasing, and other financial laws. The justification for these ex-
cated by it. Clarification of inmate legal problems and their resolu-
emptions has been that application of these laws would prevent the
tion are helpful, not only to the inmates involved, but also to their
12
13
FBI from undertaking activities that normally are essential for dis-
Congress thereof. The Subsection now requires that the FBI con-
guising government involvement in a situation.
duct an audit of "each undercover investigative operation in which
In view of the potential problems that can arise from eliminating
covert activities are concluded in fiscal year 1984, and in each un-
the requirements of the various exempted laws, the authorization
dercover investigative operation in which covert activities are con-
acts also have always included the requirement that detailed finan-
cluded before fiscal year 1984 but which is closed in such fiscal
cial audits be performed on certain operations and that reports of
year. Furthermore, the category of operations to be audited has
those audits be provided to the Congress.
been changed, SO that Subsection (e)(4) now covers not only non-FCI
The exemptions and report requirements contained in previous
cases with $50,000 or more in gross receipts, but also, operations
authorization law have been renewed, with some modifications.
with expenditures in excess of $150,000. The first change has the
After several years of experience with these provisions, it became
effect of altering the time frame for preparing audits and submit-
clear to both the FBI and the Committee that further refinements
ting the audit reports from the time an operation is "closed" to the
were needed. It is also clear that a permanent, and considerably
time the covert stage is terminated.
more comprehensive law governing undercover operations is
The justification for this change is to make the financial data
needed. Until such time as that legislation is enacted, however, the
available to Congress in a more timely fashion. "Closed" had been
Committee believes the temporary provisions in the authorization
interpreted by the FBI as meaning that all litigation (criminal and
bill are necessary.
civil, and including all appeals). arising out of the operation had
The modifications were adopted by the Committee based upon an
been concluded. Thus, even though it was the practice of the
accommodation of the Bureau's requests for further exemptions
Bureau to conduct the audit soon after covert activities had been
and refinements and the oversight Subcommittee's request for
concluded, the reports on these audits had not been turned over to
more useful and timely reports.
the Congress until years later. However, the financial information
(1) Subsection (a)(1) adds an exemption to permit the purchase of
contained in these reports has been in no way revealing of evi-
property, buildings, or other facilities for undercover operations.
dence, targets, sources, techniques, or anything else that might
This expansion of the exemptions is necessary because it has been
affect future investigations or prosecutions. The delay in submit-
the practice of the FBI to lease sites from which surveillance of tar-
ting these reports, therefore, was not justified. Financial data was
gets is conducted, but the current real estate phenomenon of con-
coming to the Congress years after the activities they reflected had
verting apartments to condominiums has jeopardized the continued
occurred. In the interim, FBI practices and priorities had changed.
use of some of the long standing sites, particularly in the area of
Effective and accurate oversight was jeopardized. (See Testimony of
foreign counter-intelligence cases.
Director William Webster before Subcommittee on Civil and Con-
(2) Subsection (a) provides that the certification by the Director
stitutional Rights, April 4, 1983).
and the Attorney General that reliance on an exemption is "neces-
Since the time period when audits must be reported has been
sary" for the conduct of a particular undercover operation will con-
changed, in effect, from post-litigation to a set period (see below)
tinue for the duration of the operation, rather than having to be
following the cessation of covert activities, this section contains a
renewed each fiscal year. However, it is not intended that a certifi-
grandfather clause covering operations in which covert activities
cation granted in an undercover operation which subsequently
have been concluded in a previous fiscal year, but which were not
under goes a significant shift in focus or locale, be considered con-
closed until fiscal year 1984.
tinuing indefinitely. The fact that an operation has retained the
The bill also provides that the audit report for an undercover op-
same code name, agents, or informants should not in itself suggest
eration must be submitted to the Congress not later than 1 year
that the certification process need not be repeated. If the basic
after covert activities have been concluded when that operation
nature of the operation has changed, then the justification for the
was initiated or directed in a major field office, i.e. one of the
reliance on the exemption must be made anew to the Director and
twelve largest field offices. The reports on all other included oper-
the Attorney General at the time of the change. The Certification
ations must be submitted within two years of the cessation of
process was intended to operate as an important element in the su-
covert activities. The different schedules are provided in order to
pervision and oversight of undercover operations by the highest
permit the FBI to conduct these audits in the normal course of its
levels of the FBI and the Department of Justice, and the rationale
inspection rotations, since the practice of the Bureau has been to
for eliminating this process is valid only where the recertification
perform audits in the 12 major field offices at least once a year,
would tend to be pro forma.
and every two years at other field offices. By virtue of these
(3) Subsection (d)(1) continues to provide that the FBI conduct de-
changes, the FBI will be relieved of the necessity of sending sepa-
tailed financial audits in certain undercover cases. The category of
rate teams of auditors to the field solely in order to satisfy the re-
operations for which audits must be prepared have been changed
porting requirements. Furthermore, Congress will receive this fi-
from previous authorization acts as has the timing of these audits
nancial data at an earlier stage in the process.
and reports to Congress thereof. Formerly, all "closed" undercover
As noted above, subsection (e)(4) makes modifications in the trig-
operations (excluding those involving foreign counterintelligence
ger that determine which operations must be audited. Under
[FCI]) with gross receipts (from business entities and other sources)
present law, only operations which involved the creation of busi-
in excess of $50,000, were to be audited and a report submitted to
ness entities must be audited, and then, only when gross receipts
15
14
exceed $50,000. The new provision extends the audit requirement
ing the investigation, the activities of the undercover agents, infor-
to undercover that did not involve a business front, but which in-
mants, and middlemen, evidence adduced, and findings) and de-
volve expenditures of at least $150,000, excluding salaries. Salaries
scribe the results of the operation, civil claims which has arisen
are excluded because current FBI record-keeping systems do not
out of the operation (including claims filed administratively with
track salary expenditures for individual cases or techniques. The
the Department of Justice) and "any unusual or substantial legal,
provision is also modified SO that the calculation of the $50,000 in
managerial, and other issues."
gross receipts now excludes money earned in interest, since inter-
By the latter phrase (which, as noted above, also provide a crite-
est, unlike other receipts may not be used to offset expenses in-
ria by which to select "significant" cases), it is intended that the
curred in the undercover operation.
FBI will select for description those cases involving developments
that are relevant to the Congress's ability to assess the impact,
(4) Finally, in Subsection (d)(2), an additional reporting provision
is added that goes beyond financial information, to require on an
problems, and value of the use of this technique, and to determine
annual basis,¹ that Congress be provided a report that will give
what, if any, legal and practical adjustments are necessary.
In operations which have resulted in criminal prosecutions, these
both statistical and descriptive information regarding the utiliza-
issues often will be raised in the judicial process, and this occur-
tion of the undercover technique by the FBI.
rence provides one test for selecting the operation as "significant."
Unlike the financial audit reports required under Subsection
An operation that has been particularly successful also should be
(d)(2), the undercover operations from which the statistical and de-
included, as should operations that achieved less than their expect-
scriptive data is drawn are all non-FCI undercover operations.²
ed results. Examples from the past would be the investigation of
Thus, Subsection (d)(2) (A) and (B) state that the report specify the
case-fixing in the Cleveland Municipal Court and the operations in
number, by programs, of all undercover investigative operations
Galveston, Texas, and Bridgeport, Conn., wherein FBI agents or in-
pending or commenced during the stated time periods. By "pro-
formants were arrested or detained by the local police who were
grams" is meant the programatic divisions used by the FBI in de-
being investigated.
scribing such operations: white collar crime, organized crime, per-
The Committee anticipates that the selection and analysis of sig-
sonal crimes, general government crimes, and general property
nificant cases by the FBI under this provision will not only provide
crimes. Categorization by "group" (i.e., Group I or Group II, a des-
the Congress with extremely useful information, but also will en-
ignation relating to expected duration and expense) is also intend-
courage the FBI to engage in a constructive process of self-exami-
ed.
nation. Honest and open appraisal will permit the FBI to make
The same aggregate statistical information is required for cases
those policy and practical changes necessary to render the use of
closed in the one year period preceding the report. In addition,
this technique more productive.
with respect to closed operations only,³ additional information
must be reported. With respect to each non-FCI undercover oper-
Section 8. Program evaluations
ation closed in the year preceding the report, the report must also
The bill requires program evaluations to be undertaken by the
separately describe the "results" obtained, to wit, complaints, infor-
Attorney General for all elements of the Department. It is the
mations indictments, convictions (with statutory references), fines,
intent of the Committee that the formal process of period review
recoveries, restitutions, potential economic loss prevented, etc.
and evaluation of programs be continued. Without objective pro-
Finally, with respect to significant closed cases, descriptive infor-
gram audits, the Department and its subordinate organizations
mation must be provided. "Significant" is defined in Subsection
cannot knowledgeably establish the goals of significant programs
(e)(3) as meaning operations involving either sensitive circum-
and evaluate their success. Further, the ability to modify existing
stances specified in the Attorney General's Guidelines on FBI Un-
programs, discard unfruitful programs and to know better if Feder-
dercover Operations undercover guidelines (e.g. involving political
al dollars are being spent wisely is dependent upon informed as-
corruption, the activities of a religious, political or news organiza-
tion, a significant risk of violence, injury or financial loss, etc.) or
sessment of those programs.
"any unusal or substantial legal managerial, or other issues."
Section 9. Reprograming
In the detailed description required for each of these closed sig-
nificant cases, the report must describe the operation (the nature of
The bill continues the reporting requirements adopted by the
the criminal activity and targets investigated, the basis for initiat-
Committee in 1979. The Department of Justice is required to report
to the House and the Senate Judiciary Committees when funds are
1 By "annual," the Committee intends that the report be submitted not later than the end of
being reprogramed by the major components of the Department.
the fiscal year. In contrast, the audit reports required under subsection (d)(1) are to be submitted
The language applies to reprograming of funds in excess of certain
as soon as they are prepared, and no later than the period stated in that subsection.
specified amounts as well as to reorganizations or creations of new
2 An amendment clarifying this point was adopted by the Committee by voice vote.
3 For purposes of this report to Congress "closed" is defined in Subsection (e)(1) of the bill.
programs which may not have been previously authorized. The pro-
That provision provides that an operation is deemed closed when all criminal proceedings (other
vision is necessary to facilitate the Committee's oversight responsi-
than appeals) are concluded or covert activities are concluded, whichever occurs later. The latter
contingency is included for those rare instances where criminal proceedings (i.e., trial court pro-
bilities and to assure that public funds are expended in a manner
ceedings or the decision not to seek or proceed with prosecution) have concluded, but covert ac-
consistent with congressional intent.
tivities have not.
16
17
Section 11. Departmental decisions not to enforce Federal statutes
and the reasonableness of their fees and compensation, examining
The Committee has included in the reported version of the bill
the debtor or presiding at meetings where the creditors examine
the substance of an amendment which has been adopted on the
the debtor, objecting in appropriate cases to the discharge of the
floor each year. The amendment specifically requires the Attorney
debtor, reviewing the adequacy and completeness of financial state-
General to report to the Congress whenever he/she establishes a
ments submitted by the debtor, reviewing the final reports on es-
policy to refrain from the enforcement of any provision of law be-
tates that trustees have administered, forming representative
cause the position of the Department is that the provision is uncon-
creditors' committees, and supervising creditors committees to
stitutional. The section also requires the Attorney General to
ensure that they perform their statutory duties.
report to Congress whenever the Department decides that it will
The role of the United States Trustee is to eliminate favoritism,
contest or refrain from defending any congressionally enacted pro-
opportunities for fraud, and such improprieties as the operation of
vision of law because the Department deems that provision to be
a company with no insurance during the pendency of a Chapter 11
unconstitutional. The required reports must be transmitted within
business reorganization proceeding, engendering administrative ex-
thirty days and shall specify the provision of law involved, include
penses (such as, rent, utilities, and taxes) which cannot be paid, or
a detailed statement of the reasons the Department has taken such
failing to pay withholding taxes during the Chapter 11 proceeding.
a position, and indicate the nature of the proceeding involved.
Annual reports submitted to the Congress by the Attorney Gen-
The provision has been modified in the fiscal 1984 authorization.
eral indicate that the program to date is achieving the objectives
for which it was established.
It requires that, whenever the Attorney General brings an action
challenging or contesting the validity of any statute or provision of
Present law contemplates that the Congress will review this pilot
law, the Attorney General not proceed in the name of the United
program prior to April 1, 1984 to determine whether to expand,
States, but rather in the name of the agency or department on
modify, or terminate the program. A comprehensive, independent
whose behalf he/she appears. The purpose of the revised language
study and evaluation of this program, required by Public Law 95-
is to prohibit the Department of Justice from filing suit, as was re-
598, must be transmitted by the Justice Department to Congress
before January 3, 1984. The General Accounting Office and other
cently done in the United States of America V. U.S. House of Repre-
organizations are also reviewing this program and will be submit-
sentatives, et. al, in the name of the sovereign United States
ting reports. Because there is no possibility of the Congress being
against a part of one of the branches which make up the sovereign
able to adequately review and evaluate this program and consider
United States.
whether to expand, modify, or adopt a substitute procedure for the
Section 12. Extension of expiration date of U.S. Trustees pilot pro-
performance of these crucial administrative functions prior to the
gram
expiration date of this pilot project, H.R. 2912 would extend the ex-
piration date of the experimental program until September 30,
One of the central goals of the 1978 comprehensive bankruptcy
1986. This will allow Congress the time necessary to carefully
legislation was to restore public confidence in the fairness of the
review and evaluate the extensive investigations and studies which
bankruptcy court system and remove some real, and many per-
have been undertaken and are currently being prepared by inde-
ceived, abuses in the administration of bankruptcy cases. The 1978
pendent contractors pursuant to statute, the GAO, and various or-
law emphasized the role of the bankruptcy judges as impartial ar-
ganizations affected by this program.
biters and expanded their judicial powers, while relieving bank-
ruptcy judges from their previously active role in managing and
Section 13. Domestic security guidelines
administering cases. After long and careful review, the Congress
The Committee's purpose in adopting Section 13 is to delay im-
created, as a 4½ year pilot program (which will expire on April 1,
plementation of the new Attorney General Guidelines on General
1984), the United States Trustees program to perform the adminis-
Crimes, Racketeering Enterprise and Domestic Security/Terrorism
trative functions that were transferred from the bankruptcy
Investigations until January 1, 1984.
judges.
On March 7, 1983, Attorney General William French Smith an-
Active supervision of bankruptcy cases is necessary because of
nounced new guidelines governing the FBI's domestic security in-
the public administration of bankruptcy, "the significant potential
vestigations. The Smith Guidelines replace Attorney General
for fraud, self-dealing and diversion of funds" (House Report No.
Guidelines on Domestic Security Investigations in effect since April
95-595 (1977), p. 88), and the many people affected by bankruptcy
6, 1976. Both documents were designed to cover the FBI's investiga-
proceedings. The United States Trustees perform the essential ad-
tion of politically motivated violent crime by indigenous persons or
ministrative and supervisory functions in bankruptcy proceedings
groups, that is, those not acting on behalf of a foreign power.
and generally act as the watchdogs of the bankruptcy system and
The heart of the original guidelines, authored by former Attor-
its participants. Among the duties and responsibilities of the U.S.
ney General Edward Levi, was the notion of a criminal standard-
Trustees are overseeing the qualifications and appointments of pri-
that an investigation could be launched only "on the basis of specif-
vate trustees in bankruptcy cases and supervising their perform-
ic and articulable facts given reason to believe that an individual
ance, serving as trustees in certain cases, investigating misconduct
or a group is or may be engaged in activities which involve the use
or impropriety, monitoring the hiring of professionals and experts
of force or violence and
the violation of federal law.
Fol-
18
19
lowing this standard, the FBI would no longer be able to investi-
The Committee has already taken testimony from the Depart-
gate individuals or groups on the basis of lawful-but unpopular or
ment and additional hearings will be scheduled in an attempt to
radical-political activity. The impetus for the Levi guidelines grew
seek the necessary clarification and to give the FBI an opportunity
out of the revelations of massive domestic intelligence abuses by
to explain and justify those changes which are substantive. The
the FBI. This Committee, as well as other Congressional commit-
Committee agrees that if changes in the guidelines are needed be-
tees, was instrumental in documenting those abuses and the inef-
cause of specific problems the FBI has encountered, these changes
fectiveness of domestic intelligence investigations from a law en-
should be made. However, to date, neither the FBI nor the Depart-
forcement perspective.¹
ment has produced any evidence justifying such changes.
The Levi guidelines were drafted in an effort to give new direc-
Until that evidence is provided and until the consultation and
tion to the FBI in this area, and to prevent such abuses in the
clarification process can be completed, the Committee believes the
future by focusing the FBI's investigative activities on actual or
status quo of the Levi guidelines should be maintained. Section 13
suspected criminal activity.
is designed to accomplish that purpose by delaying implementation
The guidelines were the result of a long process of consultation
of the Smith guidelines for a limited period of time. The language
and review-a process in which this committee was integrally in-
of H.R. 2912 as introduced delayed implementation until Septem-
volved. In the ensuing years, the FBI has maintained in various
ber 30, 1984-the end of fiscal year 1984. During the mark-up, how-
public statements, including before this Committee, that the Levi
ever, an amendment was offered and adopted by voice vote which
guidelines have served them well.
delays implementation until January 1, 1984.
The Committee notes that the Smith guidelines, which went into
It is the Committee's expectation that resolution of these issues
effect on March 21, 1983, make a number of changes from the old
will be achieved within the time frame provided for in Section 14,
Levi guidelines. the most visible change is one of format. Two sepa-
as amended, and commits itself to working closely with the Depart-
rate sets of guidelines have been incorporated into a single docu-
ment to achieve that goal. The Committee is compelled to note,
ment-the domestic security guidelines and the criminal investiga-
however, that adoption of § 14, as amended, is meant to send a
tive guidelines. The purpose of this reorganization, according to the
message to the Department regarding the depth of its concern
Department of Justice, is to "integrate domestic security investiga-
about the Smith guidelines and the importance of the issues raised
tions into the mainstream of FBI responsibility by reconciling these
by them.
investigations with other criminal intelligence work and using the
terminology and concepts applied to investigations of other orga-
Section 14. Resale price maintenance prohibition
nized criminal enterprises."
In Section 14, the Committee directs that no funds appropriated
In theory, the Committee believes this approach has several posi-
by H.R. 2912 shall be used to "overturn or alter the per se prohibi-
tive attributes. It does appear to integrate domestic security cases
tion of resale price maintenance, in effect under the Federal anti-
into the structure and vocabulary of the FBI's criminal investiga-
trust laws." The Committee takes this action to ensure that the na-
tions with their inherent focus on violations of federal criminal
tional policy against vertical price-fixing will continue to be
law. It brings consistency of approach and language to what has
upheld, and not weakened, by officials of the Antitrust Division
been described as a confusing and often contradictory set of regula-
whose constitutional duty it is to enforce the antiturst laws.
tions.
Despite an unbroken chain of Supreme Court decisions going
The result, however, of this attempt to "streamline" the guide-
back 70 years and Congress express bipartisan message in passing
lines has been to eliminate or significantly alter several important
the Consumer Goods Pricing Act of 1975, the current policy of the
features of the Levi Guidelines-features which in the past the
Antitrust Division is to ignore, or distinguish, the per se prohibi-
Committee believed were necessary to protect the First Amend-
tion on resale price maintenance ("RPM"). Statements by Depart-
ment activities while giving the FBI sufficient flexibility to investi-
ment officials that they would not enforce the per se ban on retail
gate actual or potential criminal activity.
price fixing, or do so selectively, coupled with the total failure of
The Committee notes that it has been engaged in a discussion
the Department to challenge such conduct have sent a disquieting
with the Department and the FBI on these new guidelines even
message of permissiveness to potential violators. More recently, the
prior to their release. The purpose of that discussion has been to
Department has urged the Supreme Court 1 in a private action to
obtain clarification of some of the new provisions. The Committee
which the United States is not a party, to overturn a precedent
further notes that specific language changes have been suggested
that has served as the polestar for congressional and executive
to the FBI which the Committee believes provide that clarification
action over that same period.
and are consistent with what the Department and the FBI have
As recently as March 10, 1983, before the Subcommittee on Mo-
said is their actual intent.
nopolies and Commercial Law,2 Assistant Attorney General Baxter
1 "FBI Domestic Intelligence Operations-Their Purpose and Scope: Issues That Need To Be
1 Monsanto Co. V. Spray-Rite Service Corp., petition for cert. filed, 51 U.S.L.W. 3461 (Dec. 7,
Resolved," report to the House Committee on the Judiciary by the Comptroller General of the
1982) (No. 82-914); cet. granted 51 U.S.L.W. 3633 (Feb. 28, 1983).
United States, Feb. 24, 1976.
2 See Oversight and Authorization Hearings before Subcommittee on Monopolies and Commer-
cial Law, March 10, 1983, Transcript of Proceedings, at pp. 17-19, 38-40, 49-55.
20
21
reiterated his view that RPM was not strictly prohibited by either
ably affected goods in interstate commerce, in violation of the fed-
Congress or the Supreme Court.³ The statement is troubling be-
eral antitrust laws, Congress responded by passing in 1937 the
cause it ignores the consistent treatment accorded the issue by the
Miller-Tydings Act,9 thereby exempting state fair trade laws from
Supreme court since 1911.
the reach of the Sherman Act. In 1952, Congress passed the
In Dr. Miles Medical Co. V. John D. Parks & Sons, Co., 220 U.S.
McGuire Act, 10 which permitted suppliers even greater authority
373 (1911), the Supreme Court struck down a resale prices mainte-
to fix resale prices by extending the privity of fair-trade contracts
nance scheme as illegal per se 4 by reasoning that the Sherman
to "non-signer" distributors.
Act has accorded all participants in the distribution of goods the
By 1975,1 repeal of the fair trade laws was called for by, among
same freedom to make business decisions and that simply because
others, President Ford, the Department of Justice and the Federal
a manufacturer makes the product and initiates the distribution
Trade Commission 12 Studies conducted by the Justice Department
scheme, "it does not follow [that] he may impose on purchasers
under President Nixon indicated that the consumer would be saved
every sort of restriction.' 202 U.S. at 404. In every situation in
which the Supreme Court has subsequently been faced with the
$1.2 billion by the elimination of the fair trade laws and that such
issue of vertical price restraints, it has reaffirmed the holding in
practices increased prices for the affected goods by 18 to 27 per-
cent. 13 President Reagan, writing at the time for the Copley News
Dr. Miles.⁵
It is also significant that the Supreme Court held to this view
Service, also decried these practices. In a column reprinted in the
even during the same period that it openly expressed uncertainty
Congressional Record, Mr. Reagan condemned resale price mainte-
as to the appropriate treatment of non-prive vertical restraints.⁶ It,
nance as stifling competition, adding to inflation and bereft of con-
sumer benefits. 14
therefore, cannot be asserted-at least by resort to legal prece-
dent-that the authorities on this point remain unsettled although
Congress responded decisively: After both the House and Senate
that has been precisely the argument posited by the Department in
Judiciary Committees unanimously reported the legislation, the
its amicus filings.⁷
Senate approved the bill by unanimous consent; 15 and the House
Congress, likewise, in 1975 affirmatively expressed its view that
voted 380 to 11 in favor of the bill. 16 In signing H.R. 6971 into law
retail price-fixing is illegal under the antitrust laws by passing the
on December 12, 1975, President Ford succinctly stated the legisla-
Consumer Goods Pricing Act.8 This action culminated a deter-
tion's intended effect:
mined effort by Congress to reach a uniform policy on the RPM
[the Act] will make it illegal for manufacturers to fix the
question that, with the benefit of past experience, would benefit
prices of consumer products sold by retailers. This new leg-
consumers nationwide. The history of Congressional involvement is
islation will repeal laws
which amend the Federal
therefore instructive.
Antitrust Laws SO States could authorize otherwise illegal
Following the enactment of the Sherman Act in 1890, Congress
agreements between manufacturers and retailers setting
remained content with the Act's prohibition on resale price-fixing
the price at which the product could be sold to consum-
until the Depression. However, during this same period, individual
ers.¹⁷
states proceeded to enact "fair trade" laws, which permitted a
In this context of congressional and Supreme Court consensus,
manufacturer to enter into an agreement stipulating the minimum
the Committee notes that in the past two years, no actions involv-
price at which a product could be sold. Because such laws invari-
ing resale price maintenance have been brought to court. During
the same interval, however, the Department has expended substan-
For its part, the FTC has continued to support the rule that vertical price-fixing is per se
illegal, most recently in its pending action in Russell Stover Candies, Inc. V. FTC. (no. 9140, July
tial resources to intervene on behalf of defendant-manufacturers
7, 1982) appeal docketed, No. 82-2036 (8th Cir.). (FTC Chairman Miller, dissenting).
4 Before extending the rule to vertical price fixing, the Supreme Court first crafted the so-
called "per se" standard of illegality in the context of horizontal antitrust cases. See, e.g., United
9 50 Stat. 693, amending 15 U.S.C. § 1 (1976).
States U. Joint-Traffic Ass n, 171 U.S. (1898); United States U. Addyston Pipe & Steel Co., 85 F.271
10 60 Stat. 632, amending 15 U.S.C. $$ 45, 45 note (1976).
(6th Cir. 1898), aff'd, 175 U.S. 211 (1899).
11 In the interim, many states had repealed or curbed their fair trade statutes; four states had
See United States V. Colgate Co., 250 U.S. 300 (1919); United States V. Schrader's & Son, 252
their own statutes declared unconstitutional; and 25 states have declared "non-signer" clauses
U.S. 85 (1920); FTC. V. Beech-Nut Packing Co., 257 U.S. 441 (1922); United States V. Line Materi-
to be unconstitutional. See P. Areeda, Antitrust Analysis, 517 (1974).
al Co., 333 U.S. 287 (1948); Kiefer-Stewart Co. V. Jos. E. Seagram & Sons, Inc., 340 U.S. 211
12 Contemporaneous with Congress' reconsideration of the problems posed by the fair trade
(1951); United States V. Parke Davis & Co., 362 U.S. 29 (1960); Simpson V. Union Oil Co., 377
laws, other nations also took action to correct similar economic effects stemming from vertical
U.S. 13 (1964); California Liquor Dealers V. Midcal Alumnium, Inc., 445 U.S. 97 (1980); Rice V.
price-fixing. In 1973, the West German parliament passed a law changing what had been a lim-
Norman Williams Co., 102 S.Ct. 3294, 458 U.S. (1982).
ited, rule-of-reason restriction on vertical price fixing to an absolute ban. See 1973 BGB1. 917
6 In a 14-year period (1963-1977) the Supreme Court changed its ruling on vertical territorial
(1973 Amendment to Act Against Restraints of Competition). In 1976, British Parliament passed
restraints no less than three times, first subjecting them to a "rule of reason" analysis (White
the Resale Prices Act which prohibits the enforcement by suppliers, acting individually or col-
Motor Co. V. United States, 372 U.S. 253 (1963)), then declaring them illegal per se (United
lectively, of a minimum resale price. See A Review of Monopolies and Mergers Policy (London
States V. Arnold, Schwinn & Co., 388 U.S. 365 (1967)), and finally returning to the rule of reason
1978) at p. 126. Among other nations, Austria, Canada, Denmark, Finland, France, Ireland,
standard (Continental T.V. Inc., V. GTE Sylvania, Inc., 433 U.S. 36 (1977)). Throughout this time
Japan, the Netherlands, Norway, Spain and Switzerland all prohibit or severely limit resale
of analytical revision, the Court never considered judging vertical price-fixing under any test
price maintenance. See Comparative Summary of Legislations on Restrictive Practices (OECD
other than the illegal per se standard, and in GTE Sylvania, supra, the Court expressly noted
Publications 1978).
that fact. See 433 U.S. at 51 n. 18.
13 See S. Rep. No. 94-466, 94th Cong., 1st Sess., pp. 1-3 (1975).
7 See, most recently, Brief of the Department of Justice, Monsanto Co. V. Spray-Rite Service
14 121 Cong. Rec. 1268 (Jan. 23, 1975).
Corp., No. 82-914, at pp. 5, 15-18.
15 121 Cong. Rec. S20874 (Dec. 2, 1975).
8 89 Stat. 801 (1975), amending 15 U.S.C. §§ 1,45(a) (1976).
16 121 Cong. Rec. H7104 (July 21, 1975).
17 Public Papers of President Gerald R. Ford, vol. 11, no. 50, at p. 1368 (emphasis supplied).
22
23
charged with pricing conduct violations at both the trial and appel-
Section 15. Transfers from Department's legal divisions
late levels. 18
The Division's amicus intervention in Monsanto Co. V. Spray-Rite
By letter dated April 19, 1983, the Department advised the Com-
Service Corp. No. 82-914 (1983), is particularly disturbing. Mon-
mittee of a plan to transfer 125 positions from its various legal divi-
santo is a private lawsuit involving a manufacturer's termination
sions to U.S. attorneys offices around the country. Of these 125 po-
of a distributor of herbicides. Although neither of the parties to the
sitions, 55 would come from the Antitrust Division. Approximately
action challenged the continued validity of the per se rule as ap-
$6.1 million would be reallocated from the General Legal Activities
plied to vertical price restraints, the Department of Justice side-
and Antitrust Division appropriations to the U.S. Attorneys and
stepped the narrower questions raised by the parties, 19 and urged
Marshals appropriation. The Department explained the proposal as
the Supreme Court to review the case as a means of revoking the
a response to the burgeoning caseloads of U.S. Attorneys.
70-year old holding in Dr. Miles. 20 At the very least, this expansive
In reply to follow-up questions from the Committee, the Depart-
use of certiorari to accomplish a sweeping revision of the law relat-
ment stated that it intended to transfer a number of vacant posi-
ing the RPM indicates an insensitivity to the respective roles of the
tions as well as 55 occupied positions from the Antitrust Division.
Congress and the Judiciary in the formulation and application of
The Department would select the 55 employees first by asking for
antitrust policy. More seriously, the Department's conduct in this
volunteers, and if that were insufficient, by closing the Cleveland
private matter may prove to be a wholly unjustified allocation of
Field Office of the Antitrust Division. Next, it would adapt Reduc-
resources in a bold attempt to circumvent the Congress.
tion-in-Force procedures to select the remainder, if necessary. The
Only last year, the Supreme Court in Arizona V. Maricopa Medi-
Department stated it has made no estimate of the cost of training a
cal Society, 73 L.Ed. 2d 48 (1982), counselled litigants challenging
new attorney to the point of proficiency in carrying out the work of
the per se rule in price-fixing cases to direct their arguments for
the Antitrust Division.
change to the Congress. 21 73 L.Ed. 2d. at 65. The Committee con-
The major purpose of Section 15 is to postpone the proposed real-
siders this to be sound advice, and SO indicated to Assistant Attor-
location to allow further study. Although the Committee is sensi-
ney General Baxter at the time of his appearance before the Sub-
tive to the staggering workload of the U.S. Attorneys offices, the
committee on Monopolies and Commercial Law on March 10, 1983.
proposed transfer of individual employees would be a major, virtu-
Thereafter, the Department has persisted in its public statements
ally irreversible step that would significantly deplete the law en-
and amicus intervention projects, all aimed at overturning congres-
forcement resources of the Antitrust Division.
sional policy in the area of resale price maintenance. The inclusion
The Committee is well aware of the specialized skills that most
of Section 14 in H.R. 2912 is the Committee's missive that it will
Antitrust Division employees possess and believes that the accumu-
not tolerate change in the carefully crafted, and congressionally-ap-
proved, antitrust policy concering retail price-fixing without the
lated expertise of 55 employees should not be casually cast away.
The Antitrust Division's enforcement mission is vital in the battle
consent of the people's elected representatives.
to control inflation and keep our industries competitive with strong
18 See, e.g., Battle V. Lubrizol Corp., 673 F.2d 984 (8th Cir. 1982); Paschall V. Kansas City Star
foreign companies. The need for a strong, vigilant antitrust en-
Co., No. 81-1963 (8th Cir. 1982); O.S.C. Corp. V. Apple Computer, No. CV-81-6132 (C.D. Cal.
forcement presence is heightened by the difficulties in uncovering
1983).
19 Before the Seventh Circuit and, now, the Supreme Court, the appellant-manufacturer has
many of the most common, and niost harmful, cartel practices.
urged for reversal of a damage verdict on the familiar grounds of insufficiency of evidence and
The Committee was particularly concerned with the apparantly
improper jury instruction.
unstudied manner in which the Department considered the closing
20 In its arguments to the Court, the Department makes the point that "while the 1975 legis-
lation terminated the States' authority to immunize certain conduct from all antitrust scrutiny,
of the Cleveland Field Office of the Antitrust Division. The Depart-
it does not prescribe the standard for such scrutiny" DOJ Brief, at p. 17 n.26. In his subsequent
ment stated that it would close this office if enough volunteer
appearance before the Subcommittee on Monopolies and Commercial Law, on March 10, 1983,
Assistant Attorney Baxter indicated what he considered to be the appropriate test in the ab-
transferees were not available. The Committee considers the field
sence of an explicit statutory command: "Well, I call it either the rule of reason interpretation
offices vital in uncovering and breaking local and regional cartels
under Section 1 of the Sherman Act that Congress enacted in 1890 or, alternatively, following
the Congressional language that appears throughout the Clayton Act, where the test is: Is the
that violate federal law, but may not draw the attention of Wash-
effect likely to significantly lessen competition?" Transcript of proceedings, at p. 55. Besides dis-
ington-based staff. Section 15 demonstrates the Committee's opposi-
regarding the 70 years of substantive content provided by the Supreme Court in the area of
vertical price-fixing, this approach would also cast in doubt the standard to be applied to hori-
tion to any proposal to close the Cleveland office without a thor-
zontal price fixing. More significant, it ignores the well documented history of the 1975 legisla-
ough review. The Committee expects that, in the future, the De-
tion that placed Congressional opinion about RPM in line with that of the Court. See, e.g., H.R.
94-341, 94th Cong., 1st Sess. 2 (1975) in which it is explained:
partment will advise it well in advance of any decision to close, or
"An agreement between a manufacturer and a retailer that a retailer will not resell the man-
significantly reduce the resources of, any field office of the Anti-
ufacturer's produce below a specified price is an obvious form of price fixing. As such, it is per
se illegal under Section 1 of the Sherman Act.
trust Division.
21 Cf. Jefferson County Pharmaceutical Ass'n V. Abbott Laboratories (No. 81-827) (Feb. 23,
While Section 15 will prevent any transfer of positions from legal
1983). In that decision, involving an application of the Robinson-Patman Act, the Court stated:
"Although Congress is aware of these criticisms [of policy and effect], the Act has remained in
divisions, including the field stations of the Divisions, to the U.S.
effect for almost half a century. And it is certainly 'not for [this Court] to indulge in the busi-
Attorneys offices, it will not prevent the Department from filling
ness of policy-making in the field of antitrust legislation. Our function ends with the
en-
deavor to ascertain from the words used, construed in the light of relevant material, what was
an opening in a U.S. Attorney's office that exists in the absence of
in fact the intent of Congress.' Slip Opinion at p. 20, quoting United States Y. Cooper Corp.,
any reallocation of resources by transferring a volunteer employee
312 U.S. 600, 606 (1941).
from a legal division of the Department.
24
25
INFLATIONARY IMPACT
3. Bill status: As ordered reported by the House Committee on
Rule XI, clause 2(l)(4).-The Committee believes the legislation
the Judiciary, May 11, 1983.
will have no significant inflationary impact on prices and costs in
4. Bill purpose: This bill authorizes the appropriation of $3,295
the operation of the economy, even if every dollar specifically au-
million to the Department of Justice for fiscal year 1984. Of this
thorized by H.R. 2912 is in fact appropriated.
amount, $1,056 million is for the Federal Bureau of Investigation
(FBI), $607 million is for the United States prison system. The bill
OVERSIGHT
also authorizes such sums as may be necessary for increases in pay,
retirement and other employee benefits.
Rule XI, clause 2(1)(3)(D).-No finding or recommendations of the
In addition to these provisions, the bill limits the Attorney Gen-
Committee on Government Operations were received.
eral's authority to transfer funds to other areas and requires the
Rule XI, clause 2(1)(3).-The Committee views H.R. 2912 specifi-
Department to make a number of reports to the Congress. The bill
cally, and the authorization process generally, as a critically impor-
also allows the Director of the FBI to collect fees to cover the cost
tant lever for the exercise of its oversight responsibility. While the
of processing fingerprint identification records for any organization
Committee approached its inquiry in H.R. 2912 as primarily a legis-
other than a criminal justice agency.
lative inquiry aimed at assisting the markup of a single authoriza-
The $3,295 million authorized by the bill is $130 million higher
tion bill, the Committee believes the year-round, ongoing process of
than the President's 1984 budget request for the Justice Depart-
oversight engaged in by the subcommittees is greatly enhanced by
ment. A large part of this difference is attributable to an authoriza-
the fact of the authorization process.
tion for the INS that is $68 million higher than the President's re-
ESTIMATE OF COST
quest.
5. Estimated cost to the Federal Government:
Pursuant to clause 7 of rule XIII of the Rules of the House of
Representatives, the Committee states that it concurs with the esti-
[By fiscal years, in million of dollar]
mate submitted by the Congressional Budget Office as set forth
1984
1985
1986
1987
1988
below.
Estimated authorization level:
BUDGETARY INFORMATION
Function 750
3,294
Function 920
112
Clause 2(1)(3)(B) of rule XI of the Rules of the House of Repre-
Function 150
1
sentatives is inapplicable because the instant legislation does not
Total
provide new budgetary authority. Pursuant to clause 2(1)(3)(C) of
3,407
rule XI, the following estimate was prepared by the Congressional
Estimated outlays:
Budget Office and submitted to the Committee.
Function 750
2,937
317
36
4
Function 920
107
5
CONGRESSIONAL BUDGET OFFICE,
Function 150
1
U.S. CONGRESS,
Total
3,045
322
36
4
Washington, D.C., May 13, 1983.
Hon. PETER W. RODINO, Jr.,
Chairman, Committee on the Judiciary, U.S. House of Representa-
BASIS OF ESTIMATE
tives, Rayburn House Office Building, Washington, D.C.
DEAR MR. CHAIRMAN: Pursuant to Section 403 of the Congres-
The estimate assumes that the full amounts authorized will be
sional Budget Act of 1974, the Congressional Budget Office has pre-
appropriated prior to the beginning of fiscal year 1984. It also in-
pared the attached cost estimate for H.R. 2912, the Department of
cludes $112 million to reflect CBO's baseline estimate of a 5.5 per-
Justice Appropriation Authorization Act, Fiscal Year 1984.
cent federal pay increas for fiscal year 1984. Estimated outlays are
Should the Committee SO desire, we would be pleased to provide
based on historical spending patterns for the major Department of
further details on this estimate.
Justice programs.
Sincerely,
6. Estimated cost to State and local government: None.
JAMES BLUM
7. Estimate comparison: None.
(for Alice M. Rivlin, Director).
8. Presvious CBO estimate: On May 13, 1983, CBO prepared a
cost estimate for S. 1192, a bill authorizing appropriations to the
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
Department of Justice for fiscal year 1984. That bill authorized
1984 appropriations totaling $3,314 million.
1. Bill number: H.R. 2912.
9. Estimate prepared by: Charles Essick.
2. Bill title: Department of Justice Appropriation Authorization
Estimate approved by: C. G. Nuckols (for James L. Blum, Assist-
Act, Fiscal Year 1984
ant Director for Budget Analysis).
20
CHANGES IN EXISTING LAW MADE BY THE BILL, As REPORTED
In compliance with clause 3 of Rule XIII of the Rules of the
House of Representatives, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be omit-
ted is enclosed in black brackets, new matter is printed in italics,
existing law in which no change is proposed is shown in roman):
ADDITIONAL VIEWS OF REPRESENTATIVES EDWARD F.
FEIGHAN, JOHN F. SEIBERLING, GEORGE W. CROCKETT,
Section 408 of the Act of November 6, 1978
JR., THOMAS N. KINDNESS, AND MICHAEL DEWINE
AN AcT TO ESTABLISH A UNIFORM LAW ON THE SUBJECT OF BANKRUPTCIES.
We commend the Committee's decision to include language in
Section 15 of this bill to prevent the precipitous closing by the De-
partment of Justice of the Cleveland Field Office of the Antitrust
Division. In all the materials forwarded to the Committee, there is
UNITED STATES TRUSTEE PILOT
no explanation of why the Department plans to sacrifice the Cleve-
SEC. 408. (a)
land office, among all its divisions and offices.
The Cleveland Antitrust office currently has responsibility for
antitrust enforcement in Ohio, Kentucky, West Virginia and east-
(c) Chapter 15 of title 11 of the United States Code and chapter
ern Michigan. The office therefore has responsibility for such
39 of title 28 of the United States Code are repealed, and all refer-
major metropolitan areas as Cleveland, Detroit, Cincinnati, Louis-
ences to the United States trustee contained in title 28 of the
ville, Toledo and Columbus. The office covers one of the most eco-
United States Code are deleted, as of [April 1, 1984] September 30,
nomically diverse and industrialized regions of the country, with
1986. The service of any United States trustee, of any assistant
significant and deep-rooted linkages.
United States trustee, and of any employee employed or appointed
The presence of a local field office is essential to the efficient and
under the authority of such chapter 39 is terminated on such date.
effective enforcement of the antitrust laws. Geographic proximity
and visibility are important factors in generating leads with re-
spect to criminal price fixing and other predatory activities. Geo-
graphic proximity is also of the utmost importance in the investiga-
tion of leads. Prompt and effective investigation of leads will neces-
sarily suffer if the investigating attorney must travel up to 500
miles to determine the validity of a complaint. In particular, the
expense involved in investigating complaints may result in the de-
cision not to follow up on otherwise meritorious allegations.
The Cleveland Field Office has been historically effective in both
the civil and criminal enforcement of antitrust laws. From 1972 to
1979, of the 186 criminal cases filed by the Antitrust Division, 148
(or 80 percent) were filed by the field offices and 38 (or 20 percent)
were filed by the Washington sections. Aside from generating leads
and allowing for effective investigation, having a local presence is
essential to subsequent enforcement efforts since attorneys in the
local field office are able to become familiar with the courts, judges
and attorneys in the area.
From 1977 to 1982, the Cleveland office obtained fines totaling
$6.7 million stemming from criminal convictions for violations of
the antitrust laws. The imposition of these fines, which greatly ex-
ceeded the Cleveland office's operating expenses, has benefitted re-
gional consumers both in the form of direct monetary recovery and
through deterrence of future unlawful conduct.
For example, the success of the Cleveland office in the highly
celebrated "Supermarket Case," (United States V. First National
Supermarkets, Inc. et al.), has been of direct benefit to Cleveland-
area consumers, resulting in the imposition of $5 million in gross
fines ($3 million suspended). A related private civil action which
(27)
28
dove-tailed the criminal action resulted in the distribution of $20
million in rebate coupons to area consumers.
The Committee rightly places a high value on the Antitrust Divi-
sion's field offices, which afford a cost-efficient and highly effective
tool for moving against regional or local antitrust violators. No ac-
ceptable justification has been advanced for the possible closing of
ADDITIONAL VIEWS OF MR. FISH
this particular office, which has a long and distinguished record in
enforcing the antitrust laws in the Cleveland metropolitan area, in
During the full Judiciary Committee's deliberations on the De-
the State of Ohio, and throughout the midwest.
partment of Justice authorization bill, (H.R. 2912), I offered an
amendment to facilitate the protection of federal law enforcement
EDWARD F. FEIGHAN
officials and their families when they are faced with a threat to
Member of Congress.
their lifes or property. Under current rules and regulations, in life-
GEORGE W. CROCKETT, JR.
threatening situations, agents of the FBI, INS, and DEA are forced
Member of Congress.
to move to localities outside their current duty stations to protect
RICHARD M. DEWINE,
themselves and their families. My amendment would have per-
Member of Congress.
mitted the payment of per diem allowances to an emloyee serving
JOHN F. SEIBERLING,
in a law enforcement capacity and relocation/travel expenses for
Member of Congress.
members of his immediate family, to cover the cost of a move
THOMAS N. KINDNESS,
within the employee's current duty station area when faced with
Member of Congress.
such threats. Astonishingly, my amendment was defeated in the
full Committee by a vote of 17 to 12.
The payment of per diem and related travel expenses is ordinari-
ly not permitted when a federal employee relocates within the
same geographic area where he or she is assigned. Under normal
circumstances, this is a reasonable standard. Moving a family out-
side the law enforcement officer's duty station is a costly procedure
in terms of money, in terms of law enforcement efficiency, and in
terms of family morale. Obviously, such moves on short notice have
a seriously disruptive effect on the lives of an employee's spouse
and children.
As an example, given the current pattern of such incidents, the
Federal Bureau of Investigation estimates that approximately 20 of
these relocations for their special agents are to be anticipated in
the next fiscal year. Based upon this estimate, with the cost of each
relocation approximately $6,000, the cost just for FBI relocations in
Fiscal Year 1984 would be $120,000. If my amendment is adopted,
SO as to allow temporary quarters to be maintained within the duty
station area, considerable savings could be recognized by the Feder-
al Government.
It is my intention to re-offer this amendment when the Depart-
ment of Justice Authorization bill is considered on the House floor.
I am hopeful that, next time, the amendment will be adopted.
HAMILTON FISH, JR.
(29)
31
individuals considered to be threats to their protectees. This data
includes the name, sex, date of birth, height, weight, hair and eye
color. The Secret Service estimates this will include only about 125
persons at any one time who are not confined to penal, mental, or
other institutions.
SUPPLEMENTAL VIEWS OF MESSRS. SENSENBRENNER,
It should be noted that within two hours' implementation, an in-
FISH, MOORHEAD, KINDNESS, McCOLLUM, GEKAS AND
dividual considered dangerous to a Secret Service protectee and
DEWINE ON H.R. 2912
whose whereabouts were unknown was stopped as a result of a
As originally introduced, H.R. 2912 contained two provisions
traffic violation. That individual, whose residence was on the West
which were vigorously opposed by the Republican Members.
Coast, was located in a Southern State in possession of a stolen ve-
The first provision would, for fiscal year 1984, have suspended
hicle. An amendment offered by Mr. Sensenbrenner which deleted
the FBI's revised guidelines on domestic security/terrorism which
this provision from the bill passed on a voice vote.
updated and replaced the old guidelines promulgated by former At-
We should not be second guessing the Secret Service. Safeguards
torney General Edward Levi in 1976. The new Smith guidelines are
have been taken to ensure the information is only submitted to law
needed to ensure protection of the public from greater sophistica-
enforcement personnel for law enforcement purposes. If amend-
tion and the changing nature of domestic groups that are prone to
ments are reintroduced to change these regulations, they should be
violence. In Committee, an amendment offered by Mr. Sensenbren-
strongly opposed. We should not have to wait until another assassi-
ner to strike this provision from the bill. However, a compromise
nation attempt on a Secret Service protectee occurs to serve as an
was worked out which would keep the current guidelines in effect
impetus for implementing these important guildelines.
until September 30, 1983. At that time, the new Smith guidelines
JAMES F. SENSENBRENNER, JR.
would be suspended until January 1, 1984. However, we are very
GEORGE W. GEKAS
concerned the Committee report does not reflect the agreement on
HAMILTON FISH
the record. As a practical matter, the only time frame that this bill
MICHAEL DEWINE
can effect is fiscal year 1984, which begins on October 1, 1983. this
CARLOS MOORHEAD
will give the full Committee and the Justice Department time to
THOMAS N. KINDNESS
work out an agreement. If no agreement is reached by January 1,
1984, the new Smith guidelines will go back into effect. Efforts to
BILL McCoLLUM
tinker with this provision on the House floor will receive our vig-
O
orous opposition.
For the record, the following point should be made. It has been
alleged that the Smith guidelines currently in effect since March
21 would allow the FBI to investigate mere "advocacy" of detri-
mental statements made against our government. This is totally
without foundation. The new Smith guidelines allow an investiga-
tion "when fact or circumstances reasonably indicate that two or
more persons are engaged in an enterprise for the purpose of fur-
thering political or social goals wholly or in part through activities
that involve force or violence and a violation of the criminal laws
of the U.S.
In determining whether an investigation should
be conducted, the FBI shall consider all of the circumstances in-
cluding: (1) the magnitude of the threatened harm; (2) the likeli-
hood it will occur; (3) the immediacy of the threat; and (4) the
danger to privacy and free expression posed by an investigation."
Thus, it is crystal clear that "advocacy" alone of violence or terror-
ism will not trigger an investigation.
The second provision would have, for fiscal year 1984, prevented
the Secret Service from using the FBI's national computerized tele-
communications system for the surveillance of individuals who
have made threats against the life of the President of the United
States and other Secret Service protectees. These guildelines, which
went into effect on April 27, enable the Secret Service to place into
the National Crime Information Center (NCIC) computer data of
(30)
I
98TH CONGRESS
1ST SESSION
H.R.2912
To authorize appropriations to carry out the activities of the Department of
Justice for fiscal year 1984, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 4, 1983
Mr. RODINO introduced the following bill; which was referred to the Committee
on the Judiciary
A
BILL
To authorize appropriations to carry out the activities of the
Department of Justice for fiscal year 1984, and for other
purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Department of Justice
4 Appropriation Authorization Act, Fiscal Year 1984".
5
SEC. 2. There are authorized to be appropriated for
6 fiscal year 1984, to carry out the activities of the Depart-
7 ment of Justice (including any bureau, office, board, division,
8 commission, or subdivision thereof) the following sums:
2
1
(1) For general administration, including-
2
(A) the hire of passenger motor vehicles, and
3
(B) miscellaneous and emergency expenses
4
authorized or approved by the Attorney General,
5
the Deputy Attorney General, the Associate At-
6
torney General, or the Assistant Attorney Gener-
7
al for Administration:
8
$56,364,000.
9
(2) For the United States Parole Commission for
10
its activities, including the hire of passenger motor ve-
11
hicles: $7,836,000.
12
(3) For general legal activities, including-
13
(A) the hire of passenger motor vehicles,
14
(B) miscellaneous and emergency expenses
15
authorized or approved by the Attorney General,
16
the Deputy Attorney General, the Associate At-
17
torney General, or the Assistant Attorney Gener-
18
al for Administration,
19
(C) not to exceed $20,000 for expenses of
20
collecting evidence, to be expended under the di-
21
rection of the Attorney General and accounted for
22
solely on the certificate of the Attorney General,
23
(D) advance of public moneys under section
24
3324 of title 31, United States Code,
HR 2912 IH
3
1
(E) pay for necessary accommodations in the
2
District of Columbia for conferences and training
3
activities, and
4
(F) not to exceed $50,000 which may be
5
transferred from the "Alien Property Funds,
6
World War II", for the general administrative ex-
7
penses of alien property activities, including rent
8
of private or Government-owned space in the Dis-
9
trict of Columbia:
10
$160,440,000 of which $2,753,000 shall be available
11
for the investigation and prosecution of denaturalization
12
and deportation cases involving alleged Nazi war
13
criminals.
14
(4) For the Antitrust Division for its activities:
15
$45,791,000.
16
(5) For the Foreign Claims Settlement Commis-
17
sion for its activities, including-
18
(A) services as authorized by section 3109 of
19
title 5, United States Code,
20
(B) expenses of packing, shipping, and stor-
21
ing personal effects of personnel assigned abroad,
22
(C) rental or lease, for such periods as may
23
be necessary, of office space and living quarters
24
for personnel assigned abroad,
HR 2912 IH
4
1
(D) maintenance, improvement, and repair of
2
properties rented or leased abroad, and furnishing
3
fuel, water, and utilities for such properties,
4
(E) advances of funds abroad,
5
(F) advances or reimbursements to other
6
Government agencies for use of their facilities and
7
services in carrying out the functions of the Com-
8
mission,
9
(G) the hire of motor vehicles for field use
10
only, and
11
(H) the employment of aliens:
12
$954,000.
13
(6) For United States attorneys and marshals, in-
14
cluding-
15
(A) purchase of firearms and ammunition,
16
(B) lease and acquisition of law enforcement
17
and passenger motor vehicles, without regard to
18
the general purchase price limitation for the cur-
19
rent fiscal year,
20
(C) supervision of United States prisoners in
21
non-Federal institutions,
22
(D) bringing to the United States from for-
23
eign countries persons charged with crime, and
24
(E) acquisition, lease, maintenance, and oper-
25
ation of aircraft:
HR 2912 IH
5
1
$362,707,000.
2
(7) For United States trustees: $10,000,000.
3
(8) For support of United States prisoners in non-
4
Federal institutions, including-
5
(A) necessary clothing and medical aid, pay-
6
ment of rewards, and reimbursements to Saint
7
Elizabeths Hospital for the care and treatment of
8
United States prisoners, at per diem rates as au-
9
thorized by section 2 of the Act entitled "An Act
10
to authorize certain expenditures from the appro-
11
priations of Saint Elizabeths Hospital, and for
12
other purposes", approved August 4, 1947 (24
13
U.S.C. 168a),
14
(B) entering into contracts or cooperative
15
agreements for only the reasonable and actual
16
cost to assist the government of any State, terri-
17
tory, or political subdivision thereof, for the neces-
18
sary physical renovation, and the acquisition of
19
equipment, supplies, or materials, required to im-
20
prove conditions of confinement and services, of
21
any facility which confines Federal detainees, in
22
accordance with regulations which are to be
23
issued by the Attorney General and which are
24
comparable to the regulations issued under section
25
4006 of title 18, United States Code:
HR 2912 IH
6
1
$44,768,000.
2
(9) For fees and expenses of witnesses, including
3
expenses, mileage, compensation, and per diem of wit-
4
nesses in lieu of subsistence, as authorized by law, in-
5
cluding advances of public moneys: $38,266,000. No
6
sums authorized to be appropriated by this Act shall be
7
used to pay any witness more than one attendance fee
8
for any one calendar day.
9
(10) For the Community Relations Service for its
10
activities, including-
11
(A) the hire of passenger motor vehicles, and
12
(B) assistance provided under section 501(c)
13
of the Refugee Education Assistance Act of 1980
14
(Public Law 96-422; 94 Stat. 1809) to individ-
15
uals who are Cuban and Haitian entrants within
16
the meaning of paragraphs (1) and (2)(A) of such
17
section:
18
$33,238,000 of which $26,655,000 shall remain avail-
19
able until expended to make payments in advance for
20
grants, contracts and reimbursable agreements and
21
other expenses necessary to provide assistance under
22
subparagraph (B).
23
(11) For the Federal Bureau of Investigation for
24
its activities, including-
HR 2912 IH
7
1
(A) expenses necessary for the detection and
2
prosecution of crimes against the United States,
3
(B) protection of the person of the President
4
of the United States and the person of the Attor-
5
ney General,
6
(C) acquisition, collection, classification, and
7
preservation of identification and other records
8
and their exchange with, and for the official use
9
of, duly authorized officials of the Federal Gov-
10
ernment, of States, of cities, and of other institu-
11
tions, such exchange to be subject to cancellation
12
if dissemination is made outside the receiving de-
13
partments or related agencies,
14
(D) such other investigations regarding. offi-
Y
15
cial matters under the control of the Department
16
of Justice and the Department of State as may be
17
directed by the Attorney General,
18
(E) purchase for police-type use, without
19
regard to the general purchase price limitation for
20
the current fiscal year, and hire of passenger
21
motor vehicles,
22
(F) acquisition, lease, maintenance, and oper-
23
ation of aircraft,
24
(G) purchase of firearms and ammunition,
25
(H) payment of rewards,
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8
1
(I) not to exceed $70,000 to meet unforeseen
2
emergencies of a confidential character, to be ex-
3
pended under the direction of the Attorney Gener-
4
al and to be accounted for solely on the certificate
5
of the Attorney General, and
6
(J) classification of arson as a part I crime in
7
its uniform crime reports:
8
$1,055,690,000. None of the sums authorized to be
9
appropriated by this Act for the Federal Bureau of In-
10
vestigation shall be used to pay the compensation of
11
any employee in the competitive service.
12
(12) For the Immigration and Naturalization
13
Service, for expenses necessary for the administration
14
and enforcement of the laws relating to immigration,
15
naturalization, and alien registration, including-
16
(A) advance of cash to aliens for meals and
17
lodging while en route,
18
(B) payment of allowances to aliens, while
19
held in custody under the immigration laws, for
20
work performed,
21
(C) payment of expenses and allowances in-
22
curred in tracking lost persons as required by
23
public exigencies in aid of State or local law en-
24
forcement agencies,
25
(D) payment of rewards,
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1
(E) not to exceed $50,000 to meet unfore-
2
seen emergencies of a confidential character, to be
3
expended under the direction of the Attorney
4
General and accounted for solely on the certificate
5
of the Attorney General,
6
(F) purchase for police-type use, without
7
regard to the general purchase price limitation for
8
the current fiscal year, and hire of passenger
9
motor vehicles,
10
(G) acquisition, lease, maintenance, and oper-
11
ation of aircraft,
12
(H) payment for firearms and ammunition,
13
and for attendance at firearms matches,
14
(I) operation, maintenance, remodeling, and
15
repair of buildings and the purchase of equipment
16
incident thereto,
17
(J) refunds of maintenance bills, immigration
18
fines and other items properly returnable, except
19
deposits of aliens who become public charges and
20
deposits to secure payment of fines and passage
21
money,
22
(K) payment of interpreters and translators
23
who are not citizens of the United States and dis-
24
tribution of citizenship textbooks to aliens without
25
cost to such aliens,
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1
(L) acquisition of land as sites for enforce-
2
ment fences, and construction and maintenance in-
3
cident to such fences,
4
(M) research related to immigration enforce-
5
ment,
6
(N) payment of expenses related to the pur-
7
chase of privately-owned animals for official use
8
and expenses related to the maintenance of ani-
9
mals SO used (whether donated, leased, hired, or
10
purchased), and
11
(0) assistance provided under section 501(c)
12
of the Refugee Education Assistance Act of 1980
13
(Public Law 96-422; 94 Stat. 1809) to individ-
14
uals who are Cuban and Haitian entrants within
15
the meaning of paragraphs (1) and (2)(A) of such
16
section:
17
$606,807,000 of which not to exceed $100,000 may
18
be used for the emergency replacement of aircraft upon
19
the certificate of the Attorney General, not to exceed
20
$160,212,000 may be used for the Border Patrol, and
21
not to exceed $77,272,000 may be used for inspections
22
at ports of entry.
23
(13) For the Drug Enforcement Administration
24
for its activities, including-
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1
(A) hire and acquisition of law enforcement
2
and passenger motor vehicles, without regard to
3
the general purchase price limitation for the cur-
4
rent fiscal year,
5
(B) payment in advance for special tests and
6
studies by contract,
7
(C) payment in advance for expenses arising
8
out of contractual and reimbursable agreements
9
with State and local law enforcement and regula-
10
tory agencies while engaged in cooperative en-
11
forcement and regulatory activities in accordance
12
with section 503a(2) of the Controlled Substances
13
Act (21 U.S.C. 873(a)(2)),
14
(D) payment of expenses not to exceed
15
$70,000 to meet unforeseen emergencies of a con-
16
fidential character to be expended under the direc-
17
tion of the Attorney General and to be accounted
18
for solely on the certificate of the Attorney Gen-
19
eral,
20
(E) payment of rewards,
21
(F) payment for publication of technical and
22
informational material in professional and trade
23
journals and purchase of chemicals, apparatus,
24
and scientific equipment,
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1
(G) payment for necessary accommodations
2
in the District of Columbia for conferences and
3
training activities,
4
(H) acquisition, lease, maintenance, and op-
5
eration of aircraft,
6
(I) research related to enforcement and drug
7
control,
8
(J) contracting with individuals for personal
9
services abroad, and such individuals shall not be
10
regarded as employees of the United States Gov-
11
ernment for the purpose of any law administered
12
by the Office of Personnel Management,
13
(K) payment for firearms and ammunition
14
and attendance at firearms matches,
15
(L) payment for tort claims against the
16
United States when such claims arise in foreign
17
countries in connection with Drug Enforcement
18
Administration operations abroad:
19
$284,473,000. Of sums authorized to be appropriated
20
for fiscal year 1984 and made available for the pur-
21
chase of evidence and payment for information (PE/
22
PI), an amount not to exceed $1,700,000 shall remain
23
available for expenditure until October 1, 1985.
24
(14) For the Federal Prison System for its activi-
25
ties, including-
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1
(A) for the administration, operation, and
2
maintenance of Federal penal and correctional in-
3
stitutions, including supervision and support of
4
United States prisoners in non-Federal institu-
5
tions,
6
(B) purchase and hire of law enforcement
7
and passenger motor vehicles, without regard to
8
the general purchase price limitation for the cur-
9
rent fiscal year,
10
(C) compilation of statistics relating to pris-
11
oners in Federal penal and correctional institu-
12
tions,
13
(D) assistance to State and local govern-
14
ments to improve their correctional systems,
15
(E) purchase of firearms and ammunition,
16
and medals and other awards,
17
(F) payment of rewards,
18
(G) purchase and exchange of farm products
19
and livestock,
20
(H) construction of buildings at prison camps
21
and acquisition of land as authorized by section
22
4010 of title 18, United States Code,
23
(I) transfer to the Health Services Adminis-
24
tration of such amounts as may be necessary, in
25
the discretion of the Attorney General, for the
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14
1
direct expenditure by such Administration for
2
medical relief for inmates of Federal penal and
3
correctional institutions,
4
(J) for Federal Prison Industries, Incorporat-
5
ed, to make such expenditures, within the limits
6 -
of funds and borrowing authority, and in accord-
7
ance with law, and to make such contracts and
8
commitments without regard to fiscal year limita-
9
tions as provided in section 9104 of title 31 of the
10
United States Code, as may be necessary to carry
11
out the program set forth in the budget for the
12
current fiscal year for such corporation, including
13
purchase and hire of passenger motor vehicles,
14
(K) for planning, acquisition of sites and con-
15
struction of new facilities, and constructing, re-
16
modeling, and equipping necessary buildings and
17
facilities at existing penal and correctional institu-
18
tions, including all necessary expenses incident
19
thereto, by contract or force account, to remain
20
available until expended, and the labor of United
21
States prisoners may be used for work performed
22
with the sum authorized to be appropriated by
23
this subparagraph,
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1
(L) for carrying out the provisions of chapter
2
319 of title 18, United States Code, relating to
3
the National Institute of Corrections, and
4
(M) assistance provided under section 501(c)
5
of the Refugee Education Assistance Act of 1980
6
(Public Law 96-422; 94 Stat. 1809) to individ-
7
uals who are Cuban and Haitian entrants within
8
the meaning of paragraphs (1) and (2)(A) of such
9
section:
10
$498,070,000.
11
(15) For organized crime drug enforcement activi-
12
ties relating to the detection, investigation, prosecution,
13
and incarceration of individuals involved in organized
14
criminal drug trafficking, not otherwise provided for:
15
$89,949,000.
16
SEC. 3. Sums authorized to be appropriated by this Act
17 may be used for-
18
(1) the travel expenses of members of the family
19
accompanying, preceding, or following an officer or
20
employee if, while he is en route to or from a post of
21
assignment, he is ordered temporarily for orientation
22
and training or is given other temporary duty, and
23
(2) benefits authorized under paragraphs (5),
24
(6)(A), (8), and (9) of section 901 and under section
HR 2912 IH
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1
904 of the Foreign Service Act of 1980 (22 U.S.C.
2
4081(5) et seq.),
3 under regulations issued by the Secretary of State.
4
SEC. 4. (a) Sums authorized to be appropriated by this
5 Act which are available for expenses of attendance at meet-
6 ings shall be expended for such purposes in accordance with
7 regulations issued by the Attorney General.
8
(b) Sums authorized to be appropriated by this Act may
9 be used for the purchase of insurance for motor vehicles and
10 aircraft operated in official Government business in foreign
11 countries.
12
(c) Sums authorized to be appropriated by this Act for
13 salaries and expenses shall be available for services as au-
14 thorized by section 3109 of title 5, United States Code.
15
(d) Sums authorized to be appropriated by this Act to
16 the Department of Justice may be used, in an amount not to
17 exceed $35,000, for official reception and representation ex-
18 penses in accordance with distributions, procedures, and reg-
19 ulations issued by the Attorney General.
20
SEC. 5. There are authorized to be appropriated for
21 fiscal year 1984, such sums as may be necessary for in-
22 creases in salary, pay, retirement, and other employee bene-
23 fits authorized by law, and for other nondiscretionary costs.
24
SEC. 6. Notwithstanding the second paragraph relating
25 to salaries and expenses of the Federal Bureau of Investiga-
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17
1 tion in the Department of Justice Appropriation Act, 1973
2 (Public Law 92-544; 86 Stat. 1115), sums authorized to be
3 appropriated by this Act for such salaries and expenses may
4 be used in fiscal year 1984 for the purposes described in such
5 paragraph.
6
SEC. 7. (a) With respect to any undercover investigative
7 operation of the Federal Bureau of Investigation which is
8 necessary for the detection and prosecution of crimes against
9 the United States or for the collection of foreign intelligence
10 or counterintelligence-
11
(1) sums authorized to be appropriated for the
12
Federal Bureau of Investigation by this Act may be
13
used for purchasing property, buildings, and other facil-
14
ities, and for leasing space, within the United States,
15
the District of Columbia, and the territories and pos-
16
sessions of the United States, without regard to section
17
1341 of title 31 of the United States Code, section
18
3732(a) of the Revised Statutes (41 U.S.C. 11(a)), sec-
19
tion 305 of the Act of June 30, 1949 (63 Stat. 396;
20
41 U.S.C. 255), the third undesignated paragraph
21
under the heading "Miscellaneous" of the Act of March
22
3, 1877 (19 Stat. 370; 40 U.S.C. 34), section 3324 of
23
title 31 of the United States Code, section 3741 of the
24
Revised Statutes (41 U.S.C. 22), and subsections (a)
25
and (c) of section 304 of the Federal Property and Ad-
HR 2912 IH
18
1
ministrative Services Act of 1949 (63 Stat. 395; 41
2
U.S.C. 254(a) and (c)),
3
(2) sums authorized to be appropriated for the
4
Federal Bureau of Investigation by this Act may be
5
used to establish or to acquire proprietary corporations
6
or business entities as part of an undercover investiga-
7
tive operation, and to operate such corporations or
8
business entities on a commercial basis, without regard
9
to section 9102 of title 31 of the United States Code,
10
(3) sums authorized to be appropriated for the
11
Federal Bureau of Investigation by this Act, and the
12
proceeds from such undercover operation, may be de-
13
posited in banks or other financial institutions, without
14
regard to section 648 of title 18 of the United States
15
Code and section 3302 of title 31 of the United States
16
Code, and
17
(4) the proceeds from such undercover operation
18
may be used to offset necessary and reasonable ex-
19
penses incurred in such operation, without regard to
20
section 3302 of title 31 of the United States Code,
21 only upon the written certification of the Director of the Fed-
22 eral Bureau of Investigation (or, if designated by the Direc-
23 tor, an Executive Assistant Director) and the Attorney Gen-
24 eral (or, if designated by the Attorney General, the Deputy
25 Attorney General), that any action authorized by paragraph
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1 (1), (2), (3), or (4) of this subsection is necessary for the con-
2 duct of such undercover operation. Such certification shall
3 continue in effect for the duration of such undercover oper-
4 ation, without regard to fiscal years.
5
(b) As soon as the proceeds from an undercover investi-
6 gative operation with respect to which an action is authorized
7 and carried out under paragraphs (3) and (4) of subsection (a)
8 are no longer necessary for the conduct of such operation,
9 such proceeds or the balance of such proceeds remaining at
10 the time shall be deposited in the Treasury of the United
11 States as miscellaneous receipts.
12
(c) If a corporation or business entity established or ac-
13 quired as part of an undercover operation under paragraph
14 (2) of subsection (a) with a net value of over $50,000 is to be
15 liquidated, sold, or otherwise disposed of, the Federal Bureau
16 of Investigation, as much in advance as the Director or his
17 designee determines is practicable, shall report the circum-
18 stances to the Attorney General and the Comptroller Gener-
19 al. The proceeds of the liquidation, sale, or other disposition,
20 after obligations are met, shall be deposited in the Treasury
21 of the United States as miscellaneous receipts.
22
(d)(1) The Federal Bureau of Investigation shall conduct
23 a detailed financial audit of each undercover investigative op-
24 eration in which covert activities are concluded in fiscal year
25 1984, and each undercover investigative operation in which
HR 2912 III
20
1 covert activities are concluded before fiscal year 1984 but
2 which is closed in such fiscal year, and-
3
(A) submit the results of such audit in writing to
4
the Attorney General, and
5
(B) submit a report to the Congress concerning
6.
such audit. In the case of an undercover investigative
7
operation initiated or directed by the head of a major
8
field office of the Federal Bureau of Investigation, such
9
report shall be submitted not later than one year after
10
such covert activities are concluded. In the case of any
11
other undercover investigative operation, such report
12
shall be submitted not later than two years after such
13
covert activities are concluded.
14
(2) The Federal Bureau of Investigation shall also
15 submit a report annually to the Congress specifying-
16
(A) the number, by programs, of undercover in-
17
vestigative operations pending as of the end of the one-
18
year period for which such report is submitted,
19
(B) the number, by programs, of undercover in-
20
vestigative operations commenced in the one-year
21
period preceding the period for which such report is
22
submitted, and
23
(C) the number, by programs, of undercover in-
24
vestigative operations closed in the one-year period
25
preceding the period for which such report is submitted
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1
and, with respect to each such closed undercover oper-
2
ation, the results obtained. With respect to each such
3
closed undercover operation which is significant, such
4
report shall contain a detailed description of the oper-
5
ation and related matters, including information per-
6
taining to-
7
(i) the results,
8
(ii) any civil claims, and
9
(iii) any unusual or substantial legal, man-
10
agerial, and other issues,
11 that arose at any time during the course of such undercover
12 operation.
13
(e) For purposes of subsection (d)-
14
(1) the term "closed" refers to the earliest point
15
in time at which-
16
(A) all criminal proceedings (other than ap-
17
peals) are concluded, or
18
(B) covert activities are concluded,
19 whichever occurs later,
20
(2) the term "employees" means employees, as
21
defined in section 2105 of title 5 of the United States
22
Code, of the Federal Bureau of Investigation,
23
(3) the term "significant" means involving-
HR 2912 IH
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1
(A) any of the sensitive circumstances speci-
2
fied in the undercover guidelines established by
3
the Attorney General, or
4
(B) any unusual number or type of results,
5
civil claims, or unusual or substantial legal, man-
6
agerial, or other issues, and
7
(4) the terms "undercover investigative operation"
8
and "undercover operation" mean any undercover in-
9
vestigative operation of the Federal Bureau of Investi-
10
gation (other than a foreign counterintelligence under-
11
cover investigative operation)—
12
(A) in which-
13
(i) the gross receipts (excluding interest
14
earned) exceed $50,000, or
15
(ii) expenditures (other than expendi-
16
tures for salaries of employees) exceed
17
$150,000, and
18
(B) which is exempt from section 3302 or
19
9102 of title 31 of the United States Code.
20
SEC. 8. (a) The Attorney General shall perform-
21
(1) periodic evaluations of the overall efficiency
22
and effectiveness of the Department of Justice pro-
23
grams and any supporting activities funded by appro-
24
priations authorized by this Act, and
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1
(2) annual specific program evaluations of selected
2
subordinate organizations' programs,
3 as determined by the priorities set either by the Congress or
4 the Attorney General.
5
(b) Subordinate Department of Justice organizations and
6 their officials shall provide all the necessary assistance and
7 cooperation in the conduct of evaluations described in subsec-
8 tion (a), including full access to all information, documenta-
9 tion, and cognizant personnel, as required for such evalua-
10 tions.
11
(c) Completed evaluations performed under subsection
12 (a) shall be made available to the Committee on the Judiciary
13 of the Senate, the Committee on the Judiciary of the House
14 of Representatives, and to other appropriate committees.
15
SEC. 9. During the fiscal year for which appropriations
16 are authorized by this Act, each organization of the Depart-
17 ment of Justice, through the appropriate office within the
18 Department of Justice, shall notify in writing the Committee
19 on the Judiciary of the Senate, the Committee on the Judici-
20 ary of the House of Representatives, other appropriate com-
21 mittees, and the ranking minority members thereof, not less
22 than fifteen days before-
23
(1) reprograming of funds in excess of $250,000
24
or 10 per centum, whichever is less, between the pro-
25
grams within the offices, divisions, and boards as de-
HR 2912 IH
24
1
fined in the Department of Justice's program structure
2
submitted to the Cómmittees on the Judiciary of the
3
Senate and House of Representatives,
4
(2) reprograming of funds in excess of $500,000
5
or 10 per centum, whichever is less, between programs
6
within the Bureaus as defined in the Department of
7
Justice's program structure submitted to the Commit-
8
tees on the Judiciary of the Senate and the House of
9
Representatives,
10
(3) any reprograming action which involves less
11
than the amounts specified in paragraphs (1) and (2) if
12
such action would have the effect of making significant
13
program changes and committing substantive program
14
funding requirements in future years,
15
(4) increasing personnel or funds by any means for
16
any project or program for which funds or other re-
17
sources have been restricted,
18
(5) creation of new programs or significant aug-
19
mentation of existing programs,
20
(6) reorganization of offices or programs, and
21
(7) significant relocation of offices or employees.
22
SEC. 10. Notwithstanding section 501(e)(2)(B) of the
23 Refugee Education Assistance Act of 1980 (Public Law 96-
24 422; 94 Stat. 1810), funds may be expended for assistance
HR 2912 IH
25
1 with respect to Cuban and Haitian entrants as authorized
2 under section 501(c) of such Act.
3
SEC. 11. (a) The Attorney General shall transmit a
4 report to each House of the Congress in any case in which
5 the Attorney General-
6
(1) establishes a policy to refrain from the enforce-
7
ment, in fiscal year 1984, of any provision of law en-
8
acted by the Congress, the enforcement of which is the
9
responsibility of the Department of Justice, because of
10
the position of the Department of Justice that such
11
provision of law is not constitutional, or
12
(2) determines that the Department of Justice will
13
contest, or will refrain from defending, in fiscal year
14
1984, any provision of law enacted by the Congress in
15
any proceeding before any court of the United States,
16
or in any administrative or other proceeding, because
17
of the position of the Department of Justice that such
18
provision of law is not constitutional.
19
(b) Any report required under subsection (a) shall be
20 transmitted not later than thirty days after the Attorney
21 General establishes the policy specified in subsection (a)(1) or
22 makes the determination specified in subsection (a)(2). Each
23 such report shall-
24
(1) specify the provision of law involved,
HR 2912 IH
26
1
(2) include a detailed statement of the reasons for
2
thè position of the Department of Justice that such
3
provision of law is not constitutional, and
4
(3) in the case of a determination specified in sub-
5
section (a)(2), indicate the nature of the judicial, admin-
6
istrative, or other proceeding involved.
7
(c) During fiscal year 1984 and notwithstanding any
8 other provision of law, in any case in which the Attorney
9 General determines that the Department of Justice will re-
10 frain from defending or will contest the constitutionality of
11 any statute or provision of law, or in which the Attorney
12 General determines that the Department of Justice will
13 bring, or authorizes the bringing of, an action challenging or
14 contesting the validity of any statute or provision of law, the
15 Attorney General shall not proceed in the name of the United
16 States, but only in the name of the agency or department on
17 whose behalf the Attorney General appears, or the President
18 if the Attorney General appears on the President's behalf.
19
SEC. 12. Section 408(c) of the Act of November 6, 1978
20 (Public Law 95-598; 92 Stat. 2687(c)) is amended by strik-
21 ing out "April 1, 1984" and inserting in lieu thereof "Sep-
22 tember 30, 1986".
23
SEC. 13. During fiscal year 1984, the Attorney General
24 may exercise the authority under paragraphs (1), (2), and (3)
HR 2912 IH
27
1 of section 534(a) of title 28, United States Code, only to
2 acquire, collect, classify, and preserve-
3
(1) criminal identification, crime, and other similar
4
criminal records, and
5
(2) records relating to the identification of individ-
6
uals who are deceased or reported as missing.
7
SEC. 14. All investigations conducted in fiscal year
8 1984 by the Federal Bureau of Investigation of activities re-
9 lating to domestic security shall be conducted in accordance
10 with-
11
(1) The Attorney General's Guidelines on Domes-
12
tic Security Investigations,
13
(2) The Attorney General's Guidelines on Use of
14
Informants in Domestic Security, Organized Crime,
15
and Other Criminal Investigations, and
16
(3) The Attorney General's Guidelines on FBI
17
Undercover Operations,
18 as in effect on October 1, 1982.
19
SEC. 15. None of the sums authorized to be appropri-
20 ated by this Act may be used for any activity the purpose of
21 which is to overturn or alter the per se prohibition of resale
22 price maintenance, in effect under the Federal antitrust laws.
23
SEC. 16. None of the sums authorized to be appropri-
24 ated by this Act may be used to transfer any position from
25 any legal division of the Department of Justice to any office
HR 2912 IH
28
1 of any United States Attorney or to pay the salary of any
2 employee occupying any such position SO transferred after
3 April 1, 1983.
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