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Tony Snow Subject Files
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George H.W. Bush Presidential Records
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Speechwriting, White House Office of
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Snow, Tony, Files
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Subject File, 1988-1993
OA/ID Number:
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13893-015
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[Department Agency Reports G-L, 10/91-12/91]
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2
1
HUMAN
SERVICES.US
DEPARTMENT OF HEALTH & HUMAN SERVICES
HEALTH
Office of the Secretary
oi
DEVARTMENT
Washington, D.C. 20201
SEP 1 3 1991
MEMORANDUM FOR EDE HOLIDAY
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
FROM:
ROBIN CARLE The
EXECUTIVE SECRETARY
TO THE DEPARTMENT
SUBJECT:
1991 Fall Issues Assessment Report
The following report summarizes key issues and activities which
are expected to occur within the Department of Health and Human
Services between September 15 to December 31, 1991.
I.
HIGHEST PRIORITIES -- SUMMARY LISTING
*
Minority Health Plan
*
Implement provisions of the Clinical Laboratory Improvement
Amendments of 1988
Food Labeling
HIV AIDS Health Care Worker Campaign
Publish regulations on proposed criteria regarding SSA
impairments caused by HIV infection.
Child Immunization Summit Visits
Publish Final Rule to Establish New Medicare Method for
Paying Physicians
Child Care and Development Block Grant
Surgeon General's Update on AIDS Epidemic
Healthy Start Initiative Announcement of Demonstration Sites
Child Welfare Reform
Head Start Expansion and Quality Improvements
2
II. SURVEY OF KEY ISSUES
SECRETARIAL ACTIVITIES
The following are confirmed Secretarial activities known to date.
As his schedule permits, Secretary Sullivan hosts a private
breakfast every other Thursday with a key leader of the Congress
to discuss legislative issues of mutual concern. Additional
calendar updates may be provided as changes occur.
09/16/91 Third National Asian Pacific Conference on Substance
Abuse and AIDS Prevention and Treatment, Arlington, VA
The theme of the Conference is "Dispelling the Myth,
Promoting a National Agenda on Substance Abuse Issues
within the Asian Communities." The Secretary is the
keynote speaker.
09/17/91 National Conference on Child Abuse and Neglect Speech -
Colorado
The Secretary will discuss our commitment to
children's programs, including our many efforts to
address violence, child abuse and neglect,
immunization, Healthy Start and the need for a
culture of character.
09/20/91 Dallas Immunization Summit Visit - Dallas, Texas
This is the first of six summit visits to
encourage immunization efforts and attempt to
understand local problems. Drs. Mason,
Roper, and Novello will participate in these
visits along with other high public
officials.
09/23-27/90
Immunization Week
09/23/91 Sorian Health Care Forum Speech - Washington, DC
The Secretary is expected to discuss the
Administration's plans for health care
reform. The principles for reform will be
mentioned, as well as a brief discussion of
the five lectures.
3
09/23/91 Wharton School Alumni Club Speech - Washington, DC
Again, this "captains of industry" audience
will expect a discussion about health care
reform. Because business leaders have a vital
role in implementing health care reform,
culture of character and more, this is an
important audience for the Secretary to call
to action. He will share his views as
presented in the five lectures and discuss
the specific role that these business leaders
can play.
09/24/91 National Breast Cancer Awareness Month Speech -
Washington, DC
The Secretary and Mrs. Sullivan will
emphasize the need to increase awareness of
the dangers of breast cancer and the need for
periodic examinations.
09/27/91 Healthy Mothers/Healthy Babies Speech - Washington, DC
Dr. Sullivan will announce the communities
selected for the Healthy Start Initiative at
the Healthy Mothers/Healthy Babies Coalition
meeting. The communities will be challenged
to reduce their infant mortality rate by 50%
over the next few years.
09/27/91 National Conference of Editorial Writers Speech - Salt
Lake city, Utah
This audience would like a discussion of our
ideas on health care reform. Because these
writers have often called on our department
to do more, we will take this opportunity to
share the very detailed groundwork we have
laid for meaningful reform, and share our
view of further actions to increase access to
care.
09/29/91 Ford Hall Forum Speech - Boston, Massachusetts
This is a lecture before the Massachusetts
Medical Society. The Secretary will talk
about health care reform and the role of
biomedical research in health care reform.
10/02/91 Economic Club of Detroit - Detroit, Michigan
The Secretary will discuss health care reform before
this group of business leaders. This speech will be
carried on national public radio.
4
10/03/91 AEI Health Policy Conference Speech - Washington, DC
This conference will present information on
critical issues for health care reform.
10/07-11/91
Child Health Week
10/06/91 American Dental Association House of Delegates Speech -
Seattle, Washington
The ADA would like the Secretary to talk
about health care reform. Additionally, he
may discuss AIDS and the HIV guidelines.
10/07/91 International Conference on Human Genetics Speech -
Washington, DC
The Secretary will talk about HHS biomedical
initiatives, the Bush Administration's strong
record on biomedical research funding and the
international implications of biomedical
research.
10/07/91 National Conference on Lead Poisoning Speech/Press
Conference - Washington, DC
The Secretary will talk about the dangers of
lead poisoning and our efforts to address
this problem.
10/08/91 International Association of Chiefs of Police Speech -
Minneapolis, Minnesota
The Secretary will talk about violence as a
health problem, including a discussion of the
black homicide rate, violence in the media
and the steps we can take to create a culture
of character.
10/09/91 Foundation for Biomedical Research Speech - Washington,
DC
The Secretary will talk about the importance
of biomedical research, our biomedical
initiatives and the Bush Administration's
record on funding for biomedical research.
10/10/91 House Ways and Means Committee, Washington, D.C.
The Secretary will testify before the Ways and Means
Committee on health care reform.
10/10/91 National Teleconference - Mothers Against Drugs (MAD),
HHS Studio
The Secretary will adress this national teleconference
sponsored by MAD and Governor Roemer. Topics will
include health promotion strategies and preventing
tobacco and substance abuse among children and youth.
5
10/28/91 Phoenix Immunization Summit Visit - Phoenix, Arizona
The second in the series of six immunization
summits, the Secretary will talk about the
importance of immunization and our efforts to
address low immunization rates in rural and
under-served areas.
10/31/91 Speech to the National Press Club - Washington, DC
The Secretary is expected to make a major policy
address on health care reform.
11/07/91 Tobacco Free Society Speech - University of Oklahoma,
Oklahoma city, Oklahoma
The Secretary will restate our health
promotion/disease prevention agenda,
especially as it relates to a smoke-free
society by the year 2000.
11/13/91 Rapid City Immunization Summit Visit - Rapid city,
South Dakota
The third in the series of six immunization
summits, the Secretary will talk about the
importance of immunization and our efforts to
address low immunization rates in rural and
under-served areas.
11/15/91 Karolinska Institute Speech - Stockholm, Sweden
This is an annual clinical science lecture.
The Secretary will speak on the international
implications of biomedical research.
11/18-22/91
National Family Awareness Week
11/23/91 Vatican Conference on Drug and Alcohol Abuse Speech -
Rome, Italy
The Secretary will talk about American
efforts to reduce the demand for drugs,
including our efforts on research, treatment
and prevention. Also, he will discuss the
international aspects of these issues.
11/25-29/91
National Adoption Week
11/25/91 Howard University/Child Health in the Inner City
Speech - Bethesda, Maryland
The Secretary will talk about violence and
health disparities, and governmental efforts
to address these issues. Also, he will
mention the need to establish a culture of
character.
6
12/13/91 Philadelphia Immunization Summit Visit = - Philadelphia,
Pennsylvania
The fourth in the series of six immunization
summits, the Secretary will talk about the
importance of immunization and our efforts to
address low immunization rates in rural and
under-served areas.
12/14-17/91
International AIDS Conference - Africa
INITIATIVES AND POLICIES UNDER DEVELOPMENT
OR CONSIDERATION BY THE DEPARTMENT
Change in the Social Security Administration's (SSA's) Toll-Free
Number. As a result of a statutory requirement that places SSA
under the government-wide FTS 2000 program, effective September
30, 1991, SSA's national toll-free number will change from
1-800-234-5772 to 1-800-SSA-1213. SSA has begun an extensive
public information campaign to alert the public, national
organizations, the media, and the Congress to this change.
An "intercept" message will direct callers to the new
toll-free number.
Secretary Sullivan's Access Plan for Minority Health.
Dr. Sullivan will announce later in September a new Minority
Health Plan. Key elements of the plan include: assisting local
communities to establish school-linked health programs;
conducting hypertension research and disseminating better
information to minorities about high blood pressure control;
improving placement and retention of National Health Service
Corps providers; and expanding the Community/Migrant Health
Center program to target underserved areas.
News Conference on Smoking. The National Cancer Institute will
announce on October 2 the initiation of a major project called
the American Stop Smoking Intervention Study, a joint effort with
the American Cancer Society. Dr. Sullivan has been invited to be
the prime spokesperson.
Clinical Practice Guideline. In late October, Dr. Sullivan and
Dr. Mason will announce the availability of the first clinical
practice guideline on the management of acute post-operative
pain, developed with support from the Medical Effectiveness
Treatment Program (MEDTEP).
7
Healthy Children Ready to Learn Initiative. The Surgeon General
has formed a Task Force with representatives from the Departments
of Agriculture, Education, and Health and Human Services, and the
White House to address the President's First Education Goal. The
Task Force will be working this fall to organize a Conference on
the critical role of parents in the education of children,
scheduled to be held February, 1992 in Washington, D.C.
Attending the conference will be parents, as well as
professionals. The Task Force is working closely with Governor
Ashcroft's office to ensure participation by the states. Each
State has been asked to convene a planning meeting prior to the
conference to prepare parents for their participation. These
State-level meetings will begin this fall.
Lead Poisoning in Children. The Centers for Disease Control will
release a revised statement on lead poisoning, Preventing Lead
Poisoning in Young Children. This statement will provide
guidance for pediatric health care providers and lead screening
programs. The revised statement will define a new blood lead
level of concern and advocate universal screening and primary
prevention of lead poisoning. The current CDC recommended level
of micrograms of lead per deciliter of whole blood (ug/dL)
wherein "preventive actions for such exposure should receive the
highest priority" is 25 ug/dL. What the CDC Advisory Committee
on Lead Poisoning will recommend is that if levels of 10 ug/dL
are found in a geographic area, that the community should take
action in the form of education and prevention measures to reduce
the sources of lead. At 15 or more ug/dL, individual case
management should be established, and, at 20 or more ug/dL,
ongoing medical therapy should be undertaken.
HIV/AIDS and Health Care Workers. Dr. Sullivan and
Dr. Mason will initiate a Centers for Disease Control campaign
this fall to inform the public and health care professionals
about guidelines to prevent transmission of the AIDS virus or
hepatitis B during health care. The campaign will: use
television and print messages to urge the public to call the AIDS
hotline for information including a brochure with answers to
questions about AIDS and health care workers; use focus groups to
gather information about the fear of getting AIDS from health
care workers; and, sustain the effort through other
communications channels such as the "America Responds to AIDS"
campaign.
White House Service Integration Working Group. HHS staff are
providing analytic support to help the Working Group develop its
integration agenda and identify targets of opportunity for
service integration. We are coordinating the preparation of a
report to the President to be submitted in the fall. In
addition, we are working to expand the database cataloging major
federal programs for children, youth and families by early fall.
8
Consideration of the "Oregon Medicaid Demonstration Project"
Waiver Application. This is a proposal to substantially reform
the Oregon Medicaid Program by rationing services, as part of an
overall health care reform initiative. If the Federal government
grants the waiver that Oregon is requesting, it would result in
the adoption of a standard Medicaid benefits package in the
State, which would then become the standard for a small business
insurance pool and, eventually, other programs in the State.
Through Oregon's overall health care reform initiative, the State
would guarantee health care to all its residents; however, health
care services would be prioritized, and those health care
services with lower priorities would not be reimbursed.
STORIES OF NATIONAL INTEREST
Lead-based Paint and Occupational Health. In September, the
Centers for Disease Control will disseminate an "Alert"
indicating an immediate health hazard to workers removing lead-
based paint from bridges and other steel structures and will
provide public health recommendations for protection of workers.
Televised Movie on Child Support. CBS is planning to air a
movie, "Runaway Father," on September 22, 1991, 9:00 EST. The
movie is based on the story of Pat Bennett whose husband
disappeared in 1968, leaving her with three children and no
income. CBS may mention the Handbook on Child Support
Enforcement and the Child Support Enforcement Program in a "for
further information" segment following the movie.
Indoor Air Quality Guide. In November, the Centers for Disease
Control and the Environmental Protection Agency will release a
jointly developed Building Managers' Indoor Air Quality Guide to
assist building managers in preventing and solving indoor air
quality problems.
World AIDS Day. The World Health Organization has again
designated December 1 as World AIDS Day. The global theme this
year is "Sharing the Challenge." In recognition of this event,
the Department has designated December 1 as National AIDS
Awareness Day. Various national HHS activities are planned to
highlight collaboration that currently exists among groups and to
encourage the creation of new partnerships among all sectors.
Secretary Sullivan will be sending letters to the State
Governors, Cabinet-level Secretaries, and Heads of Federal
Agencies, the major television networks, and the Commissioner of
the National Football League asking them to join in commemorating
National AIDS Awareness Day.
9
LEGISLATIVE ACTIVITIES
SSA Independent Agency. On September 17th, the House Ways and
Means Committee has scheduled a hearing on H.R. 2838, the "Social
Security Trust Fund Integrity and Benefits Improvement Act of
1991. " The bill would provide for the establishment of SSA as an
independent agency; for a phased-in increase in the retirement
earnings test for people aged 65 to 69; an increase in widow's
benefits for widows under age 65 when their spouse dies; removal
of administrative costs from the cap on domestic discretionary
spending; a GAO study of ways to improve the accuracy and
efficiency of the disability determination process; and an
increase in the FICA exemption for election workers.
Child Care and Development Block Grant. Representative Thomas J.
Downey, acting Chairman of the Subcommittee on Human Resources,
House Committee on Ways and Means, has requested a hearing on the
interim final regulations for the Child Care and Development
Block Grant program as well as the regulations implementing the
At-Risk Child Care provisions of the Omnibus Budget
Reconciliation Act of 1990 (OBRA), on September 17th. Jo Anne
Barnhart is expected to testify.
Child Welfare Reform. The House Ways and Means Subcommittee on
Human Resources is expected to mark-up H.R. 2571, the Family
Preservation Act of 1991, by the end of September. This bill
converts the title IV-B child welfare services program to a
capped entitlement at an estimated cost of $10 billion over 5
years. In the Senate, the Finance committee has no action
scheduled on the companion bill, S.4, the Child Welfare and
Preventive Services Act. This bill combines the two current
foster care entitlements, one for administration costs and one
for actual care, to create one new, broad capped entitlement. It
would provide for such things as expansion of services available
to vulnerable families, authorize demonstration projects to
improve coordination of child welfare services with other related
services, and change existing foster care and adoption assistance
programs. The estimated cost of the bill is $3.5 billion over 5
years.
Child Abuse Prevention and Treatment Act. The Senate Labor and
Human Resources Committee has marked-up S. 838, a bill to
reauthorize the Child Abuse Prevention and Treatment Act and
related programs through FY 1994. Senate floor action is
expected in September or early October. The House has already
passed H.R. 2720, which would reauthorize these programs for one
year (FY 92) in order to allow the U.S. Advisory Board on Child
Abuse and Neglect time to recommend additional changes to these
programs.
10
Health care Reform. Senator Bentsen reportedly plans to
introduce a small group market reform bill. The bill will focus
on changing the tax code to encourage small businesses to
purchase health insurance for their employees. It will also
include Federal reforms of the small group market health
insurance by placing limits on premium rates, require automatic
renewability and limit exclusions for preexisting medical
conditions. It is believed that Senator Bentsen may try to move
the bill out of his committee later this year.
Senator Kennedy is redrafting the Democratic health care reform
bill, S. 1227, in an effort to bypass Senator Bentsen. That
measure includes mandates which are not favored by Senator
Bentsen.
AFDC-Emergency Assistance/Welfare Hotels. The Administration
will propose revisions in the Aid to Families with Dependent
Children (AFDC) program to discourage the use of welfare hotels
to provide housing to low-income families by prohibiting the use
of federal AFDC and Emergency Assistance (EA) matching funds for
welfare hotels. Short emergency stays in commercial facilities
will be permitted.
Social Security "Notch" Issue. A number of bills have been
introduced to deal with the "notch" issue. As a result of the
flawed computation method enacted in 1972, the so-called "notch"
occurs because workers born between 1910 and 1916 receive
unintended windfall benefits that are higher than benefits of
comparable workers born before or after that period. Two of the
most prominent bills are those introduced by Senator Sanford and
Representative Roybal, S.567 and H.R. 917. The bill would
provide higher Social Security benefits for certain workers born
in 1917-1926 and have attracted a large number of cosponsors. We
anticipate a high degree of congressional and public interest in
these bills, especially because the National Committee to
Preserve Social Security and Medicare is very active in promoting
"notch" legislation.
ADAMHA Reorganization. Prior to the recess, the Senate passed
the ADAMHA reorganization bill which included provisions to
reorganize ADAMHA which we support. The Waxman committee has not
yet taken up ADAMHA legislation. Since the Senate and
Administration both want ADAMHA reorganization, Congressman
Waxman is expected to position his committee to get something for
agreeing to the proposal.
11
REGULATIONS
Medicaid Donated Funds and Taxes. HHS announced (September 12) a
regulation which will prohibit the payment of federal Medicaid
funds to match donations by or on behalf of health-care providers
or the Medicaid portion of certain provider taxes that are
returned in the form of higher Medicaid payments. The rule
states that funds donated from providers will be subtracted from
nominal state Medicaid expenditures before the federal matching
share is calculated.
Physician Performance Standard Rates of Increase for Fy 1992.
This notice announces the FY 1992 Medicare physician performance
standards rates of increase for expenditures and volume of
physician services under Part B. The notice includes rates of
increase for all physician services and for the categories of
surgical and nonsurgical services. This is expected to be issued
in October.
Fee Schedule for Physicians' Services. The final rule
establishes a Medicare fee schedule that includes national
uniform relative values for all physician's services. It
replaces the current reasonable charge payment mechanism with a
resource-based relative value scale fee schedule beginning
January 1992. This is expected to be issued in October.
Food Labeling. DHHS is required under the Nutrition Labeling
and Education Act of 1990 to publish in the Federal Register by
November 8, 1991-the anniversary of the enactment of that
legislation-20 more nutrition labeling regulations in addition
to those already published during the summer. These rulemakings
will cover such subjects as fat and cholesterol descriptors,
health messages, and petition procedures for State pre-emption of
Federal rules in this area.
Medicare, Medicaid and CLIA Programs; Regulations Implementing
the Clinical Laboratory Improvement Amendments of 1988 (CLIA)
The purpose of this rule is to implement provisions of the
Clinical Laboratory Improvement Amendments of 1988 requiring
certification by HHS of all laboratories in the United States and
it territories that perform tests on material derived from the
human body. This is expected to be issued in January. However,
congressional interest group attention may occur prior to
publication.
12
Medical Evaluation Criteria for Immune System Disorders. This
fall, the Social Security Administration expects to publish
proposed criteria in the Listing of Impairments regarding
impairments caused by human immunodeficiency virus (HIV)
infection. These rules will be used to evaluate claims for
disability benefits under the Social Security Act. At this same
time, SSA expects to publish proposed revisions to the
regulations to incorporate procedures it uses to make findings of
presumptive disability for people who allege infection with HIV.
Medical Devices. The Safe Medical Device Act of 1990 requires
that DHHS issue five regulations during the September 15, 1991 to
December 31, 1991 time period, and four other regulations in
January 1992. These rulemakings involve several major new
responsibilities for FDA in the device market.
Scientific Misconduct Investigations. Under court order, HHS
published in the Federal Register on June 13 for public comment a
statement of the policies and procedures used in investigating
possible instances of misconduct in science. A final version of
this statement, taking into account the public comments received,
will probably be published before December 31. There are high
levels of interest in this matter within the scientific research
community.
Maternal and Child Health Model Application Form. The
Department, in conjunction with the Department of Agriculture,
will publish in the Federal Register this fall a model
application form that states can choose to adopt for the purposes
of streamlining the application processes for women who are at
risk for inadequate access to health care during a pregnancy.
Child Care and Development Block Grant. The interim final rules
for the Child Care and Development Block Grant, published on June
5, 1991, implement section 5082 of the Omnibus Budget
Reconciliation Act of 1990. Approximately 1,400 comments
regarding the interim final rules have been received and will be
reviewed and responded to in the final regulation. It is
anticipated that the draft regulation will be forwarded to OMB
early in 1992. In the meantime, applications for FY 1991 and
plans for program implementation were received in July from 55
states and territories and 156 Indian Tribes. Initial approvals
will be given for a number of applications and plans this
September. The remainder of the applications and plans will be
processed during the first quarter of FY 1992.
Adoption and Foster Care Analysis and Reporting System (AFCARS).
The final rule for the proposed adoption and foster care data
collection system will be submitted to OMB in late 1991 or early
1992.
13
Foster Care Section 427 Regulations. The Department is
developing a Notice of Proposed Rulemaking (NPRM) which proposes
changes in the federal foster care program administered pursuant
to titles IV-B and IV-E of the Social Security Act.
Head Start Staff Requirements and Program Options. The final
rule is under review by the Department and is expected to be
submitted to OMB later this year. This regulation will play an
important role in maintaining and improving the quality and
effectiveness of Head Start nationwide. It clarifies existing
regulations and policies regarding Head Start staffing patterns
and options. In addition, it institutes new requirements
regarding: 1) staffing; 2) hours and days of program operations;
3) allowable class size and home visitor caseloads; and 4) the
development of a combination center/home-based program option.
At-Risk Child Care Program. The proposed rule for the At-Risk
Child Care Program, published on June 25, 1991, implements
section 5081 of the Omnibus Budget Reconciliation Act of 1990
(OBRA), which creates a child care program for low-income working
families that are not receiving Aid to Families with Dependent
Children (AFDC). This proposed rule also amends current
regulations to allow parents maximum choice in the selection of
child care providers authorized by the JOBS program and
transitional child care. The comment period for the NPRM ended
on August 26, 1991 and produced approximately 750 comments from
the press, advocacy groups and the general public on the rule
with respect to applicable standards. It is anticipated that the
final regulation will be published in February 1992.
REPORTS OR STUDIES
Inspector General's Reports on Youth and Alcohol. The Inspector
General will issue this fall two reports of a four-part study
requested by the Surgeon General on youth and alcohol. The first
report, released during a press conference on September 11, 1991,
deals with enforcement of underage drinking laws by the States.
The second one focuses on the standards and practices of the
alcohol industry concerning advertising and adherence to
guidelines.
Findings in "Exposure to Alcoholism in the Family" Advanced Data.
An upcoming publication is expected in late September from the
National Center for Health Statistics (NCHS), "Exposure to
Alcoholism in the Family: United States, 1988". This publication
presents data obtained in the 1988 National Health Interview
Survey on Alcohol. The survey was undertaken by NCHS and the
National Institute of Alcohol Abuse and Alcoholism. The survey
found that about 43% of U.S. adults (76 million people) have been
exposed to alcoholism in the family. It estimates that $150
billion will be expended form lost employment and reduced
productivity by 1995.
14
National Commission on AIDS Report. In compliance with its
Congressional mandate, the National Commission on AIDS will
submit a comprehensive two-year report to the President and the
Congress before the end of September. The report contains
approximately 30 recommendations based on information obtained
from hearings and site visits over the past two years.
The 1990 Census Report on Child Support and Alimony. This
report, sponsored by the Administration for Children and
Families, is expected to be released in September. This biennial
report will present detailed information on the number who
receive child support.
Feasibility of Mandatory Immediate Income Withholding for All
Child Support Cases. This is a mandated study on the
feasibility, cost implications, and other effects of requiring
immediate wage withholding for all child support awards. It will
be submitted to Congress in October.
Teen Attitudes and Practices Survey. In October, the Centers for
Disease Control will publish some of the findings of the Teen
Attitudes and Practices Survey. The survey will provide
information on national use of tobacco by teenagers. The survey
represents the first such survey conducted by the Public Health
Service since 1979.
AIDS: The Societal Impact. In late October, the National Academy
of Sciences will release its report, AIDS: The Societal Impact.
The report will describe the profound effects HIV/AIDS has had
on: health care establishments; public health infrastructure;
biomedical research; and specific high risk populations, such as
gay men, IV drug users, and women.
Surgeon General's Update on HIV Infection and AIDS. The Surgeon
General will publish her update report to educate the public on
the changing face of the AIDS epidemic. The anticipated release
is for World AIDS Day on December 1, 1991.
National Household Survey. The National Household Survey is a
probability-based sample of 9,259 people representative of the
U.S. household population age 12 and over. Originally, this was
a series of surveys conducted every two to three years. In order
to monitor changes in drug use closely, data collection has been
conducted every year since 1990 and a survey may be released in
December.
15
INTERNATIONAL MEETINGS
Pharmaceutical Development. The Food and Drug Administration
will co-sponsor the First International Conference on
Harmonization, to be held November 5-7, 1991 in Brussels,
Belgium. The purpose of the meeting is to achieve greater
standardization of the technical requirements for pharmaceutical
development. Other sponsors include the European Community and
Japan. This conference has implications for international trade
and pharmaceutical development, in particular, the removal of
certain trade barriers, and more importantly, the speeding of
products to the marketplace.
DEPARTMENT
OF
HOUSING
ANDURBAN DEVELOPMENT
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20410-0001
September 13, 1991
MEMORANDUM FOR: Ede Holiday
Assistant to the President
and Secretary of the Cabinet
FROM:
Mary S. Brunette mary Brancite
Assistant Secretary for Public Affairs
SUBJECT:
1991 Fall Issues Assessment
> HIGHEST PRIORITIES
1.
Obtain substantial funding for HOPE programs.
2.
Develop legislation to implement the recommendations of the
President's Commission on Regulatory Barriers to Affordable
Housing.
3.
HUD Reform -- resolve material weaknesses and outstanding
Inspector General audits.
4.
Develop strategies for 1993 budget submission to advance the
President's homeownership priorities, including the use of
Section 8 vouchers for low-income families.
> HOPE UPDATE
Both the House and the Senate have passed versions of the
1992 HUD Appropriations Bill, including funding for the
President's HOPE (Homeownership and Opportunity for People
Everywhere) initiatives.
The Senate version calls for $440 million in HOPE funding
broken down as follows: $175 million for HOPE I, the public
housing homeownership segment of HOPE; $130 million for HOPE 2,
the multi-family assisted housing component of HOPE; $125 million
for HOPE 3, the single-family, government-owned or foreclosed
component of HOPE; and $10.4 million for HOPE for Elderly
Independence.
The House version allocates $351 million for HOPE: $151
million for HOPE 1; $100 million for HOPE 2; and $100 million for
HOPE 3.
The Bill now moves into the House-Senate conference which we
expect to take place in late September or early October. On
September 5, Secretary Kemp sent a letter to all conferees
recommending that the conference accept the Senate's HOPE funding
level, while renewing the Administration's request for full
funding of $855 million.
While the Administration supports the funding levels in the
Senate bill, HUD officials believe the House bill better
allocates resources within the HUD budget. The Administration
believes that the Senate has placed HUD's 1992 budget on a
collision course with very important housing needs in the future,
especially since the mandatory costs of the low-income housing
preservation program will increase substantially in both FY 1993
and 1994. Through a combination of carryovers, recaptures, and
underfunding of Section 8 amendment needs, the Senate has
provided unsustainable increases for many HUD programs, including
CDBG, public housing modernization and development, and HOME.
HUD officials are continuing to work with members of the House
and Senate and their staffs to resolve these issues.
> MAJOR SECRETARIAL ACTIVITIES
September 19, 1991 -- Secretary Kemp will address the annual
breakfast meeting of the National Black Masters of Business
Administration Association. The speech will focus on the Bush
Administration's efforts to expand entrepreneurial opportunities
for minorities through programs and policies such as Enterprise
Zones and cutting the capital gains tax. This is part of an
ongoing series of speeches to highlight the Administration's
initiatives to create economic growth and jobs in America's inner
cities. (New York, NY)
September 20, 1991 -- Secretary Kemp will address the U.S.
Hispanic Chamber of Commerce National Convention. President Bush
and Interior Secretary Lujan are also scheduled to address the
Convention. The speech will highlight President Bush's
initiatives to expand economic growth and entrepreneurial
opportunities among the Hispanic community, including Enterprise
Zones, cutting the capital gains tax, and establishing a Free
Trade Zone with Mexico. Secretary Kemp will also discuss the
impressive gains in business formation and business growth among
Hispanic entrepreneurs during the Bush and Reagan
Administrations. (Chicago, IL)
September 24, 1991 -- Secretary Kemp will address the Inspectors
General National Conference. The speech will focus on the
management and financial reforms undertaken at HUD during the
Bush Administration and discuss the role of the Inspector
General's office in assisting these reforms. (Denver, CO)
September 26, 1991 -- Secretary Kemp will address the annual
meeting of the World Affairs Council, a public policy forum of
over 9,000 members from the business, political, and cultural
community of Los Angeles. The speech will focus on the Bush
Administration's efforts to use free enterprise and private
property ownership as tools in a new war on poverty.
(Los Angeles, CA)
September 27, 1991 -- Secretary Kemp will address the
Commonwealth Club of California, a public policy forum with over
20,000 members across the Nation. The speech will be similar in
subject matter to the World Affairs Council address.
(San Francisco, CA)
October 4, 1991 -- Secretary Kemp will host a luncheon for the
President's Commission on White House Fellows. (Washington, DC)
October 4, 1991 -- Secretary Kemp will address the Public Housing
Authority Directors Meeting. The speech will focus on the Bush
Administration's efforts to expand resident management and
ownership in America's public housing communities through
initiatives such as HOPE. (Washington, DC)
October 8, 1991 -- Secretary Kemp will host a Brown Bag luncheon
for HUD Schedule "C" appointees. Stuart Butler, domestic policy
fellow at the Heritage Foundation, will be the guest speaker.
This is part of an ongoing series of Brown Bag luncheons designed
to expose HUD appointees to the latest urban affairs scholarship.
Past guests include Dr. Michael Sherraden, author of Assets and
the Poor, and Alex Kotlowitz, author of There Are No Children
Here.
October 9, 1991 -- Secretary Kemp will attend a fundraising event
for Pennsylvania Senate candidate Dick Thornburgh and a
fundraising reception for the Pennsylvania GOP. The details are
still be resolved. (Pittsburgh, PA)
October 19, 1991 -- Secretary Kemp will address the Western
States Leadership Conference. The speech will focus on the Bush
Administration's anti-poverty initiatives, including HOPE and
Enterprise Zones. (Maui)
October 30, 1991 -- Secretary Kemp will address U.S. League of
Savings Institution annual conference. The speech will focus on
the Bush Administration's efforts to expand affordable housing
opportunities for low- and middle-income Americans. Secretary
Kemp will also discuss the findings and recommendations of the
President's Advisory Commission on Regulatory Barriers to
Affordable Housing. (Washington, DC)
November 4, 1991 -- Secretary Kemp will attend the opening of the
Ronald Reagan Presidential Library. (Los Angeles, CA)
November 15, 1991 -- Secretary Kemp will address the
Massachusetts Republican Party's Campaign for Leadership Dinner.
The speech will focus on the Bush Administration's anti-poverty
initiatives and how they are winning support for the GOP among
minority audiences. (North Falmouth, MA)
NOTE: Schedules for November and December are tentative and will
be revised in the coming months.
> LEGISLATIVE ACTIVITIES
NOTE: Committee staffers were unable to provide definite dates
for the following hearings. The time frames given are as
specific as possible. HUD officials are expected to be invited
to testify.
Late September/Early October -- The House-Senate Conference will
complete the HUD Appropriations Bill for FY 1991. (see HOPE
Update for a complete discussion of this issue)
Late September -- The House Government Operations Committee will
hold a hearing on the finding of the 2nd Annual Federal Housing
Administration (FHA) report.
Late September -- The Senate Banking Committee is scheduled to
mark-up legislation on Government Sponsored Enterprises (GSE's).
The legislation deals with GSE capital standards and affordable
housing provisions.
Late September -- The House Science, Space, and Technology
Committee will hold a hearing on the Fire Safety Act of 1991, a
piece of legislation which would require retro-fitting of
sprinkler systems in federally-assisted housing communities.
Early October -- The Senate Government Affairs Committee will
hold a hearing on government procurement of environmentally sound
products. Several agencies have been invited to testify on
RCRA -- the Resource Conservation and Recovery Act.
Late October -- The House Government Operations Committee will
hold a hearing on the targeting of Community Development Block
Grant (CDBG) funds to low-income communities and individuals.
HUD has consistently supported greater targeting of CDBG benefits
to low-income Americans.
Late October -- The House Government Operations Committee is
scheduled to hold a hearing on HUD's recently released Housing
Discrimination Study. The Study, which was conducted prior to
the Bush Administration's implementation of the Fair Housing
Amendment's Act of 1988, found that black and hispanic renters
and homebuyers faced varying degrees of discrimination
approximately 50% time.
> UPCOMING MEETINGS
September 17, 1991 -- Federal Housing Finance Board meeting. As
Secretary of Housing and Urban Development, Secretary Kemp is a
statutory member of the Board.
October 7, 1991 -- Closed meeting of the Resolution Trust
Corporation (RTC). As Secretary of Housing and Urban
Development, Secretary Kemp is a statutory member of the RTC
Oversight Board, along with the Secretary of the Treasury and the
Chairman of the Federal Reserve.
November 19, 1991 -- Federal Housing Finance Board meeting.
November 20, 1991 -- Open meeting of the Resolution Trust
Corporation (RTC).
December 17, 1991 -- Federal Housing Finance Board meeting.
December 18, 1991 -- Closed meeting of the Resolution Trust
Corporation (RTC).
> FORTHCOMING REPORTS AND STUDIES
1.
"Barriers" Report -- HUD continues to disseminate copies of
the report by the President's Advisory Commission on
Regulatory Barriers to Affordable Housing, entitled "Not In
My Back Yard," to the media, interest groups, and Congress.
The report has received widespread publicity around the
country and strong support from housing development and
building groups.
HUD is currently working on a legislative package which
incorporates the Commission's recommendations, including
making federal housing assistance contingent on effective
barrier removal strategies; encouraging the development of
model codes; and establishing a regulatory reform
clearinghouse. The Department will issue a report to
Congress sometime in November on the steps HUD is taking to
follow-up on the Commission's recommendations.
Developing legislation and continuing public publicization
of the report and the effects of regulations on housing
affordability will continue to be a top priority of the
Department in the coming months.
2.
Rent Control Report -- Near the end of October, the
Department will release its comprehensive report on the
effects of rent control. Surveys were conducted in every
jurisdiction in America with rent control regulations to
develop a framework for analyzing the deleterious effects of
rent control on housing affordability.
3.
1990 Urban Policy Report -- The 1990 Urban Policy Report is
currently being cleared by OMB. The Report highlights the
Administration's priorities in housing and urban
development, including expanding homeownership and
affordable housing opportunities; creating jobs and economic
development through Enterprise Zones; empowering the poor
through resident management; enforcing fair housing for all;
helping make public housing drug free; and helping to end
the tragedy of homelessness.
> INTERAGENCY ACTIVITIES
* On September 25, 1991, the Interagency Council on the
Homeless will hold a full meeting. Secretary Kemp and HHS
Secretary Sullivan are scheduled to attend.
* In mid-November, the Interagency Council on the Homeless
will hold a regional workshop in Philadelphia, PA. This is one
if an ongoing series of regional workshops to provide information
and technical assistance to local homeless service providers.
* The Interagency Council on the Homeless and the Government
Services Administration (GSA) are continuing their cooperation in
Operation Desert Share, a program to distribute surplus food to
homeless Americans.
OF THE INTERIOR
TAKE
United States Department of the Interior
PRIDE IN
AMERICA
OFFICE OF THE SECRETARY
March
3,
1849
WASHINGTON, D.C. 20240
September 13, 1991
MEMORANDUM FOR EDE HOLIDAY
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
FROM:
R. Thomas Weimer, Chief of Staff
SUBJECT:
1991 Summer Issues Assessment
The following report summarizes key issues and activities at the Department of the
Interior for September 15, to December 31, 1991.
I.
HIGHEST PRIORITIES -- SUMMARY LISTING
1.
Advance legislation to open the Arctic National Wildlife Refuge to
environmentally responsible oil and gas operations.
2.
Submit Bureau of Land Management Wilderness recommendations to the
President by October 21.
3.
Field Test the Revised Federal Manual for Identifying and Delineating
Jurisdictional Wetlands and implement the President's decision on wetlands.
4.
Work with the Department of Energy and the Congress to permit
implementation of the Waste Isolation Pilot Project in New Mexico.
5.
Resolve the issue of impact assistance to coastal States for oil and gas
development on Federal leases.
6.
Publish in the Federal Register the final critical habitat rule for the northern
spotted owl by December 13, and a draft recovery plan by the end of
December, and act on the Bureau of Land Management's request to the
Endangered Species Committee for an exemption for 44 timber sales in
Oregon.
7.
Work with the Congress to identify amendments to the Endangered Species
Act needed in the 1992 reauthorization.
1
8.
Pursue the civil and criminal cases against Exxon Corporation for natural
resource damages arising out of the Exxon Valdez oil spill, and continue
natural resource damage assessments.
9.
Pursue implementation of the "Enjoy Outdoors America" recreation initiative.
10.
Work with the Congress to resolve California water issues including impacts
of drought, Reclamation Reform Act Amendments, and fish and wildlife
protection in the Central Valley.
11.
Work with the Congress on proposed legislative amendments to the 1872
Mining Law.
12.
Implement the Secretary's initiative on concessions within the National Park
System, and complete analysis of concessions operations in the Fish and
Wildlife Service, Bureau of Land Management, Bureau of Reclamation, and
Bureau of Indian Affairs.
13.
Publish regulations to implement the 1988 Amendments to the Indian Self
Determination Act.
14.
Continue implementation of the American Battlefield Protection Program.
15.
Issue and promulgate a new proposed rule on Valid Existing Rights for coal
mining.
16.
Assist the State of West Virginia to resolve issues concerning the regulation
of surface coal mining and reclamation operations.
17.
Continue to work with Congress on legislation to protect, interpret, and
manage the Columbus Landing Site at Salt River Bay, St. Croix, U.S. Virgin
Islands.
2
II.
SURVEY OF KEY ISSUES
SECRETARIAL ACTIVITIES
September 16. The Secretary will participate in the National Hispanic Presidential
Tribute in Washington D.C.
September 17. The Secretary will attend the Hispanic Caucus Dinner in
Washington, D.C.
September 18. The Secretary will join the President in an event at the Grand
Canyon in Arizona highlighting the environment.
September 20. The Secretary will speak at the U.S. Hispanic Chamber of
Commerce annual meeting in Illinois.
September 23. The Secretary will participate in the opening of the Tinicum
National Environmental Center in Philadelphia.
October 5. The Secretary will host the first Annual Congressional Fishing
Tournament in Washington, D.C.
October 6. The Secretary will participate in a Bureau of Land Management Back
Country Byways dedication in Cripple Creek, Colorado.
October 8-9. The Secretary will speak at the National Park Service 75th
Anniversary Symposium in Vail, Colorado.
October 12. The Secretary will participate in the Columbus Quincentennial Kick-
off event at Union Station in Washington, D.C.
October 16. The Secretary will address the Alaska Federation of Natives Annual
Conference in Anchorage, Alaska. The conference theme will commemorate the
20th anniversary of the passage of the Alaska Native Claims Settlement Act.
November 4. The Secretary will address the National Minerals Policy Forum,
convened by the Department of the Interior to assist in developing an overall
minerals policy for the Administration, in Washington, D.C.
December 7. The Secretary will attend the commemoration at the USS Arizona
Memorial marking the 50th anniversary of the attack on Pearl Harbor in Hawaii.
3
INITIATIVES AND POLICIES UNDER DEVELOPMENT
American Battlefield Protection Program. The Department's American
Battlefield Protection Program encourages partnership activities among the
Federal, State, local, and private sector groups to protect Civil War and other
battlefields in the United States. The Program is actively encouraging the
documentation, planning, and protection of 25 high priority Civil War battlefields.
A private foundation patterned after the Ellis Island Foundation has been chartered
and is seeking private donations to be used by States, local governments and non-
profit organizations to protect important battlefield sites in the United States.
Comprehensive Royalty Compliance Strategy. The Assistant Secretary for
Land and Minerals Management and the Director of the Minerals Management
Service will oversee the implementation of the June 21 recommendations of a Task
Force to improve the Royalty Management Program's compliance program.
Federal Helium Price Increase. Effective October 1, the price charged Federal
helium customers for government refined helium will be increased to $55.00 per
thousand cubic feet. This $6.55 per thousand cubic feet increase, only the second
increase since 1962, completes a two-staged price restructuring initiative
undertaken by the Bureau of Mines to more closely track the replacement cost of
crude helium.
Outer Continental Shelf. Comments on the Natural Gas and Oil Resource
Management Comprehensive Program for 1992-1997 and Draft Environmental
Impact Statement are due on October 29. The Final Environmental Impact
Statement will be issued in 1992. Eight public hearings will be held in coastal
States: Anchorage, Alaska, September 10; Wilmington, North Carolina, September
10; New Orleans, Louisiana, September 11; Houston, Texas, September 12;
Ocean Springs, Mississippi, September 17; Mobile, Alabama, September 18; Santa
Maria, California, September 18; and Gulf Breeze, Florida, September 19.
Endangered Species Act Reauthorization. Although the Act is not scheduled
for reauthorization until 1992, the economic implications of the listing and proposed
listing of various species as threatened or endangered will continue to stimulate
public concern and pressure for legislative action. The Department has established
a working group to consider possible improvements in the Act.
Alaska Native Villages - Nature and Extent of Governmental Powers. The
efforts of Alaska Native villages to reorganize pursuant to the Indian
Reorganization Act have raised issues as to the nature and extent of the
governmental powers, if any, which the villages may have over non-members and
lands which neither the village nor any of its members own. Constitutions adopted
4
by the villages pursuant to the Indian Reorganization Act must be approved by the
Secretary of the Interior. Approval of a pending constitution for the village of Circle
could precipitate a lawsuit to resolve this issue.
Hybrid Species Protection Policy. The Fish and Wildlife Service is developing
a policy on the protection of hybrids of species listed under the Endangered
Species Act. Prior to December 14, 1990, Solicitor's opinions held that hybrids
(e.g., crosses between a listed species and an unlisted species) should not receive
the protection of the Act. All existing Solicitor's opinions and memoranda on this
matter were withdrawn on December 14, 1990. A policy being developed would
hold that hybrids between full biological species, and between biological
subspecies or populations may be protected if they represent the only available
genetic material of the listed form.
Large Mammal Management in National Parks. A National Park Service
initiative will improve management of large mammals in the National Park System.
A prototype management guide (Integrated Eastern White-tailed Deer Management
Guide) will be completed by September 30.
National Reclamation Standards. The Bureau of Land Management has
developed an integrated comprehensive nationwide reclamation policy for solid
leasable, locatable, and salable minerals. The manual and handbook will ensure
consideration of multiple uses, and achieve national uniformity and consistency in
mitigation requirements, while public lands are used for mining.
Office of Management and Budget Circular A-16. On October 19, 1990, the
Office of Management and Budget issued a revised Circular A-16, which expanded
the breadth of spatial data coordination and established the interagency Federal
Geographic Data Committee. The Department of the Interior has government-wide
leadership responsibility for the Committee and for coordinating base mapping,
digital cartographic, cadastral, geologic and wetlands data. In October the
Committee will issue a report on the accomplishments during the first year under
the revised circular and the plan for future years.
Coordination of Water Data Activities. Office of Management and Budget
Circular A-67, which assigns the responsibility for coordination of water data
acquisition and dissemination to the Department of the Interior, may be rescinded
along with a number of other circulars. Discussions are underway at the Office of
Management and Budget to assure that the necessary coordination continues.
Coastal Wetlands Grants. Proposed rules establishing requirements for
participation in the newly authorized Coastal Wetlands Grant program may be
5
published in the Federal Register within the next 60 days. Each coastal State
Governor was informed and invited to submit grant proposals.
CITES Conference Negotiating Positions. By October 4, the Fish and Wildlife
Service must submit its formal proposals for new Convention on International Trade
in Endangered Species of Wild Fauna and Flora resolutions and policy issues.
These will include resolutions dealing with regulation of the pet trade in wild birds,
mandatory marking of crocodilian hides, sale of confiscated specimens, and role
of scientific authorities in implementing the Convention.
Task Force on Royalty Compliance. The final report of the Task Force on
Royalty Compliance, published in July, recommended proceeding with a
comprehensive, integrated compliance strategy which will assure that the highest
level of company compliance can be achieved through incentives for companies
to pay and report correctly and promptly. An action plan implementing the
recommendations of the Task Force is currently under development by the
Minerals Management Service and is scheduled for completion by October 1991.
The House Interior Committee staff has received a copy of the Compliance Task
Force report and has requested a copy of the action plan prior to October 25.
Safety and Environmental Management Program. A Minerals Management
Service Task Force Report on Outer Continental Shelf Inspection and Enforcement
recommended that all outer continental shelf operators be required to develop and
implement a safety and environmental management program. Public comments
on the concept will be evaluated during the period, and a decision to proceed with
rulemaking should be made by January 1992.
Cooperative Development of Reservoirs. The Minerals Management Service
is developing policies and procedures to implement Section 6004 of the Oil
Pollution Act, which requires that the Secretary prevent the harmful effects of
unrestrained competitive development of oil and gas reservoirs underlying the
Federal/State boundary.
Heritage Education. The National Park Service has established a "Teaching with
Historic Places" program. This long-range program, conducted jointly by the
National Park Service and the National Trust for Historic Preservation, consists of
three projects to date: using the National Register of Historic Places to teach
American history and social studies in elementary and secondary schools; a
prototype teacher workshop; and an extensive educational kit of lesson plans.
Water Resources Research Act of 1984. Water Resource Research Institutes
established under this Act must be evaluated at least once every five years.
Criteria and procedures for a FY 1992 evaluation will be completed this fall.
6
Indian Water Rights Settlements. The Bureau of Indian Affairs is working to
develop a strategy to fund Indian water rights settlements. Fifteen active
adjudications and 15 active negotiations could be affected.
Fire and Management Assistance. The Bureau of Land Management has
initiated technical fire and management assistance to Honduras. A team will travel
to Honduras, October 13-20, to assess its significant fire management problems
and prepare for training which will take place in January 1992.
Environmental Ethics Program. A memorandum of understanding is being
signed by the Forest Service, Bureau of Land Management, and the National Park
Service with the National Outdoor Leadership School on an environmental ethics
program to implement the "Leave No Trace" Program for use of public land areas
with minimal impact on the environment. The trainees will then become trainers
in their agencies.
Water Conservation Plan. A draft water conservation plan, completed in May,
outlines significant water conservation activities for the Bureau of Reclamation as
required by the Presidential Management By Objectives. The plan will be
discussed within the Department and with the Office of Management and Budget.
7
SIGNIFICANT PROBLEM AREAS
Bureau of Land Management Exemption Request. On September 11, the
Bureau of Land Management submitted an application to the Endangered Species
Committee to exempt 44 of its FY 1991 timber sales from the requirements of
Section 7 of the Endangered Species Act. The Secretary has 20 days to decide
whether the application is in order and should be accepted for consideration by the
Committee.
Drought. Due to continued severe drought conditions in California, Oregon,
Nevada, and Idaho, the Bureau of Reclamation is pursuing drought management
options, including wildlife refuge water transfers, as well as legislative and
administrative actions to promote Federal-State cooperation in drought
preparedness and management.
Endangered Species Listings. The possible endangered species listings of the
Delta Smelt in California and several species of salmon in both California and
along the Columbia River in the Pacific Northwest are raising serious concerns
over the disruption of future water and power deliveries to agricultural, municipal
and industrial users in these areas.
Revised Federal Manual for Identifying and Delineating Jurisdictional
Wetlands. The revised Manual was published in the Federal Register on August
14, initiating a 60-day public comment period. During this review period, the Fish
and Wildlife Service is participating in interagency field testing of the revised
Manual.
Air Quality at Shenandoah National Park. In the last few years, about twenty
coal-fired power plants applied for permits within a 200 kilometer radius of
Shenandoah National Park. The Department asked that Virginia not permit
increased emissions from the new power plants without requiring decreased
emissions from existing facilities so as to offset the impact at Shenandoah. In
April, Virginia issued permits to two power plants. The Department has
subsequently negotiated agreements, including offsets, to settle its objections to
the two permits. The Environmental Protection Agency, however, is still
considering appeals of the Multitrade and ODEC/Virginia Power permits. Virginia
intends to propose additional permits within the next few months, so the
Department will have to determine its position. This fall, the Environmental
Protection Agency and Virginia may convene a "roundtable" of all interested parties
to address these and related issues.
Klamath River-origin Salmon Harvest Allocation. The salmon harvest
agreement between commercial, sport, and tribal fishing interests that directed the
8
allocation of Pacific salmon originating from the Klamath River has expired. Most
user groups have been dissatisfied with the expiring agreement either because of
its impact on Native American rights or because of its significant impact on the
harvest of intermingled salmon stocks in the ocean. In preparation for establishing
a new agreement, the Department of the Interior will be working with the involved
tribes to quantify tribal fishing rights.
Zebra Mussels Spread. Zebra mussels, having already undergone a population
explosion in the Great Lakes, have now been found in the Illinois River
approximately 200 miles downstream from Chicago, and may already be in the
Mississippi River. The Fish and Wildlife Service is working on mechanisms to
control zebra mussel populations and to reduce their significant impacts on fishery
resources, power-generating facilities, and municipal water systems.
Impact Assistance. The issue of impact assistance (revenue sharing) to coastal
States for oil and gas development on Federal lands was elevated when Louisiana
recently sought an injunction to block Outer Continental Shelf sale 125 because
of the lack of impact assistance. It is uncertain whether future sales will face the
same threat. There are presently four bills in Congress dealing with the issue.
Waste Isolation Pilot Project. The Assistant Secretary for Land and Minerals
Management administratively withdrew Bureau of Land Management land near
Carlsbad, New Mexico to permit storage of transuranic radioactive waste by the
Department of Energy at the Waste Isolation Pilot Project. The Department of
Energy must still complete certain actions before the administrative process is
complete. In reaction to public controversy over the project, the House Committee
on Interior and Insular Affairs passed a resolution declaring the land should not be
used for waste storage. Bills proposed in both the House and Senate are pending.
West Virginia Surface Mining. West Virginia is on notice from the Office of
Surface Mining Reclamation and Enforcement that additional State funding and
staffing are needed for the West Virginia regulatory program. Although the Federal
government matches State costs dollar for dollar, West Virginia has been unable
to identify sufficient State resources to assure adequate program performance. If
the funding problem is not resolved, the Office of Surface Mining Reclamation and
Enforcement could be forced to take over all or part of the West Virginia State
surface mining program. A special session of the State legislature is scheduled
for September 30, 1991. Office of Surface Mining Reclamation and Enforcement
is assisting the State to assure the continued operation of its program.
Bison Management at Yellowstone National Park. The National Park Service,
U.S. Forest Service and the State of Montana are working together to develop a
long-range bison management plan to prevent bison that migrate out of the park
9
each winter from damaging private property, eating livestock forage, and causing
a risk of transmission of the disease brucellosis from wild bison to domestic cattle.
§ 122 Process. The Department of the Interior, as a Trustee for natural resources
under Superfund and Executive Order 12580, is being asked to participate in
122(j) settlement negotiations at an ever-increasing number of National Priorities
List hazardous waste sites and Oil Spill sites. This process can involve intense
and lengthy negotiations to settle Departmental claims at a single site. The
Department is receiving such requests from the Department of Justice at an
average rate of 5 more each month.
Alabama Boundary Dispute. Mobil and BP Exploration Inc., Federal lessees,
propose to begin production from offshore oil and gas leases in Federal waters off
Alabama in September and October, respectively. Shell, a State lessee, is
scheduled to commence production in October or November. Due to recent
recalculation of the State/Federal boundary, the ownership and allocation of
production between the State and Federal Governments from these common
reservoirs is in dispute. The recalculation resulted in a net gain of Federal
acreage. A process to reach agreement will be proposed to Alabama in early
September to allow production to commence.
10
LEGISLATIVE ACTIVITIES
Arctic National Wildlife Refuge. The Senate Energy and Natural Resources
Committee has reported S. 1220, the National Energy Security Act of 1991,
including provisions authorizing exploration for oil and gas on the Arctic National
Wildlife Refuge. It is not clear whether Senate floor action will occur this year.
The House Merchant Marine and Fisheries Committee is expected to begin markup
of Chairman Jones' bill, H.R. 1320, toward the end of September.
Rocky Mountain Arsenal. Representative Wayne Allard's (R-CO) bill, H.R. 2883,
would transfer the Rocky Mountain Arsenal near Denver, Colorado, from the Army
to the Fish and Wildlife Service for addition to the National Wildlife Refuge System.
While there are significant wildlife resources in this near-urban setting, the
Department remains concerned over the possibility of accepting liability for cleanup
of this contaminated site.
Wilderness Legislation. House action on S. 1029, Colorado Wilderness, for the
Forest Service is anticipated before December 31. The legislation would include
designation of two Bureau of Land Management wilderness areas (Powderhorn
and Tabeguache) comprising approximately 77,000 acres of public lands
administered by the Bureau of Land Management. New Mexico Wilderness
legislation affecting Bureau of Land Management lands is expected to be
introduced before December 31. The Department will complete transmittal of all
Statewide Bureau of Land Management Wilderness recommendations to the
President by October 21 (Colorado, Idaho, Nevada, New Mexico, Oregon,
Montana, Utah and Wyoming).
California Fish/Wildlife Protection Act. A hearing is expected in October before
the House Interior and Insulars Committee, Subcommittee on Water, Power, and
Offshore Energy Resources. The bill includes language to reallocate water for fish
and wildlife purposes in the Central Valley Project in California. Debate over the
bill will focus on Federal program requirements vs. State primacy of water rights.
Biodiversity. The House Committee on Science, Space and Technology has
reported Rep. Scheuer's bill, H.R. 585, and the House Committee on Merchant
Marine and Fisheries is moving H.R. 2082, Rep. Studds' National Biological
Diversity Conservation Act. The Senate Committee on Environment and Public
Works has also held a hearing on Sen. Moynihan's bill, S. 58, but prospects for
action in the Senate are uncertain.
Tribal Judicial Systems. S. 1530, to provide for and assist the development of
tribal judicial systems, was subject of a hearing on June 5. The same Committee
has scheduled a hearing on the Indian Tribal Courts Act of 1991.
11
Western States Water Policy Review. The Senate Committee on Energy and
Natural Resources, Subcommittee on Water and Power will hold a hearing on
September 19 on S. 1228, the Western States Water Policy Review Act, to provide
for a comprehensive review by the Secretary of the Interior of western water
resources problems and programs.
Reclamation Reform. Reclamation Reform Act Amendments to improve the
administration of the program and to correct and prevent abuses stemming from
farms receiving subsidized water over the 960-acre limitation are under
consideration. The House passed Congressman George Miller's bill in June.
Senator Bill Bradley held a hearing on September 12.
Reclamation Projects Authorization and Adjustment Act. H.R. 429, passed
in the House in June, includes Reclamation Reform Act amendments, legislation
to restrict water and surplus crop subsidies, the Central Utah Project Completion
Act, Grand Canyon Protection Act, and 25 other water related titles. This bill and
other Senate versions will most likely be considered by the Senate prior to
completion of the Congressional session this fall.
Law enforcement. In Duro V. Reina the Supreme Court held that Indian tribes
lacked criminal jurisdiction over non-member Indians. To fill a possible gap in law
enforcement, Congress passed legislation temporarily authorizing tribes to continue
to exercise criminal jurisdiction over non-member Indians. The authorization
expires September 30.
Federal Helium Requirements. The Bureau of Mines has prepared draft
legislation for the Secretary to submit to Congress that would allow all Federal
agencies to purchase their helium requirements from the private sector, if they
chose to do so. Under the Helium Act of 1960, Federal customers can purchase
helium only from the Bureau of Mines.
Custer Battlefield National Monument, MT. Hearings have been held on
legislation to rename Custer Battlefield National Monument as "Little Bighorn
Battlefield National Monument" and to authorize an Indian Memorial at the
battlefield. The Administration testified in support of both the Indian Memorial and
the name change and urged enactment of the bill.
St. Croix, Virgin Islands Historical Park and Ecological Preserve. The House
and Senate are considering identical bills that would authorize a new national park
unit at Salt River Bay on St. Croix to protect the Columbus landing site and
adjacent critical ecological resources. The Secretary will testify on September 24th
before the House Committee on Interior and Insular Affairs, Subcommittee on
National Parks and Public Lands.
12
Amendments to Federal Oil and Gas Royalty Management Act of 1982. The
Department is developing legislation to amend Outer Continental Shelf Lands
Amendments section 10 by replacing the 2-year limitation on outer continental shelf
refunds with a 6-year limitation for refunds or credits on any payment and deleting
the Congressional reporting requirement. The amendment requires payors to
receive prior Minerals Management Service approval before taking a credit on a
lease which has been audited, and gives the Department discretionary authority to
grant refunds or credits in certain circumstances.
1872 Mining Law. The Department is continuing to assess the Bumpers and
Rahall bills to amend the 1872 Mining Law. Congressional action on the
comprehensive bills does not appear imminent at this time although the Senate is
expected to act on a temporary patent moratorium in mid-September.
Geologic Mapping. H. R. 2763 and S. 1179, similar bills to establish a National
Geologic Mapping Program, are expected to be reported by the House Interior and
Insular Affairs, and the Senate Energy and Natural Resources Committees,
respectively.
13
REGULATIONS
Critical Habitat Designation for the Northern Spotted Owl. On May 6, the Fish
and Wildlife Service published a proposed rule to designate critical habitat for the
northern spotted owl. A revised proposed rule was published on August 13, with
comments due by October 15. A final rule will be published by December 13.
Delta Smelt Petition Finding. A final decision on whether to list the delta smelt
as endangered was due on June 29. A decision on this San Francisco Bay area
fish species is now expected in September.
Gulf Sturgeon. The Gulf sturgeon is an anadromous fish that inhabits several
river systems from Louisiana to Tampa, Florida, and the Gulf of Mexico. The
species was proposed for listing on May 30, 1990. The final listing is expected to
be published in September. Critical habitat is presently not determinable. If critical
habitat is proposed, it will be extremely controversial.
National Park Service Concession Contracts and Permits. The National Park
Service announced in the August 23 Federal Register, its proposal to amend the
regulations which describe National Park Service procedures for award of
concession contracts and permits in order to make more competitive, within the
scope of existing law, the renewal of concession contracts and permits. The
National Park Service will publish in September revised concession contract
standard language.
Access to Inholdings in Bureau of Land Management Wilderness Areas.
Notice of intent to propose regulations that provide for access to private and State
owned lands located within the boundaries of Bureau of Land Management
designated wilderness areas may be published in the Federal Register by
December 31.
Valid Existing Rights. The Office of Surface Mining Reclamation and
Enforcement proposed formal rulemaking July 18, 1991, aimed at providing
maximum safeguards for parks and other protected areas consistent with the
surface mining law's exclusion for people who have valid existing rights. The issue
is a private owner's right to surface mine coal in parks and similar areas where
surface mining is otherwise prohibited. The comment period closes on September
16, 1991.
Tribal Status. The Bureau of Indian Affairs is about to issue the first revision of
its regulations governing whether a group of Indian descendants exist as an Indian
tribe. The regulations have been in place since the fall of 1978. The Bureau's
process has been criticized for its slowness and has been the subject of several
14
Congressional oversight hearings. Over the years there have been a number of
hearings on proposed acknowledgment or "recognition" legislation. The Bureau
expects either an oversight hearing or a hearing on general acknowledgment
legislation.
Indian Self-Determination Act Amendments of 1988. The Bureau of Indian
Affairs is preparing implementing regulations for the 1988 amendment to the Indian
Self-Determination Act. Within the coming quarter, proposed regulations will be
submitted to the Department of Health and Human Services for its concurrence.
Harvest Information Program. A proposed rule to establish a harvest
information program or other mechanism to improve estimates of harvest rates of
migratory game birds by hunters will be published in late October. Under this rule,
hunters would be required to obtain and maintain in their possession a program
card, which will be distributed through State license vendors.
National Natural Landmarks. The National Natural Landmarks Program rules
relating to landowner notification and consent may be modified. An Advance
Notice of Proposed Rulemaking, was published in the October 29, 1990 Federal
Register. Draft regulations will be published in the Federal Register during the
period, and during the 90-day comment period, the National Park Service will hold
nine public hearings. A moratorium on evaluation, nomination, and designation of
new sites has been extended indefinitely until revised regulations are final.
Royalty Rate Reductions. A rulemaking action to amend requirements governing
reduction of royalty rates for offshore oil, gas and sulfur leases should be published
as a proposed rule by the end of the year. The change will facilitate action on
requests for and approval of reductions of royalty rate in cases where a reduced
rate will be advantageous to the Government by extending the useful life of a field
or giving industry incentive to undertake new recovery activities.
Increased Outer Continental Shelf Lessee Bonding. A final rule is under review
at the Office of Management and Budget that will increase the minimum level of
bond coverage required of lessees and operators of active outer continental shelf
oil and gas and sulphur leases. The final rule is designed to permit increased
bonding requirements to be phased in as lease assignments are acted upon and
as new exploration or development and production plans are proposed by outer
continental shelf operators. The Minerals Management Service is also considering
other actions to increase protection against potential lessee defaults on lease
abandonment costs.
Geothermal Valuation. This final rulemaking, under review at the Office of
Management and Budget, will amend and clarify the existing regulations governing
15
establishes for the first time specific valuation criteria for Federal geothermal
resources. It codifies existing policies and procedures, particularly the netback
procedure, that were developed within the context of the original regulations. This
regulation should be published in October.
Valuation Benchmarks. This proposed regulation will clarify how production of
gas from Federal leases and certain Indian leases will be valued when it is not sold
pursuant to arm's-length contracts. Under this proposed rule, a lessee or the
Minerals Management Service would need to obtain only one arm's-length contract
comparable to the lessee's non-arm's-length contract to demonstrate that gross
proceeds under the non-arm's-length contract are acceptable for royalty purposes.
This codifies administrative policy guidance that has been in effect since late 1988.
Review by the Office of Management and Budget is due to be completed sometime
in September.
Proliferation of Special Events in the Nation's Capitol. A growing number of
special events in the D.C. memorial core (about 1,700 annually) is severely
impacting parklands, budgets, concessioners, law enforcement and visitors.
Proposed regulations limiting these special events, such as festivals on the
National Mall, are being reviewed by the Department.
Proposals to Change the Species Listing under CITES. By October 4, the Fish
and Wildlife Service must submit to the CITES (Convention on International Trade
in Endangered Species of Wild Fauna and Flora) Secretariat any proposed species
changes to the current list. Any proposals submitted after that date cannot be
considered by the Party nations at the eighth meeting of the Conference of the
Parties in Kyoto, Japan next March 2-13, 1992. The possible proposals that have
drawn the most attention include the bluefin tuna, the freshwater pearly-mussel
family, and tropical mahoganies.
Colorado River Regulations. Draft regulations concerning the administration of
Federal project water deliveries in the Lower Colorado River (Arizona, California,
and Nevada) will be published during this period.
Federal Energy Regulatory Commission. The Fish and Wildlife Service has
raised serious reservations over a number of the final rules the Federal Energy
Regulatory Commission has approved for its hydropower licensing process.
Among the rules the Fish and Wildlife Service may appeal are changes in the
formal negotiation process with fish and wildlife agencies and a major change in
the definition of "fishways" which would severely restrict the Secretary's authority,
under the Federal Power Act.
16
Subsistence Management on Public Lands in Alaska. The Department is
preparing permanent regulations to govern Federal management of subsistence
hunting and fishing on public (Federal) lands in Alaska. Proposed regulations,
along with an environmental impact statement, will be released for 60 day public
review and comment during the first week of October. It is expected that the final
proposed regulations along with the environmental impact statement will be
completed by the end of January or early February, 1992. The current temporary
Federal regulations expire on June 30, 1992. The State of Alaska is currently
considering ways to achieve compliance with Title VIII of the Alaska National
Interest Lands Conservation Act and thus reassume management of subsistence
on all land in Alaska. Currently, the State manages fish and wildlife resources
used for subsistence purposes only on State and privately owned lands.
White Earth Reservation Land Settlement Act. Final procedural regulations for
determining those persons entitled to compensation under the White Earth
Reservation Land Settlement Act of 1985, as amended, are presently in the
Departmental approval process. No problems are anticipated with these
regulations, which should be effective before the end of the calendar year, thus
enabling the Administrative Judge to begin hearing and deciding cases.
17
REPORTS or STUDIES
Grand Canyon Visibility Transport Commission. On or before November 15,
1991, the Environmental Protection Agency will convene the Grand Canyon
Visibility Transport Commission mandated by the Clean Air Act Amendments of
1990. The Commission's must assess visibility impairment and prepare a report
concerning possible measures for remedying the impairment.
Wounded Knee, SD. On April 30, the National Park Service testified before the
Senate Select Committee on Indian Affairs on the need to develop proposals to
commemorate the events of 1890 at Wounded Knee Creek, South Dakota. The
Service has begun a study of alternatives, emphasizing cooperative strategies with
tribal and State governments, for protecting, interpreting and managing Wounded
Knee. The first public meetings were held in June and the study is scheduled for
completion in 1992.
Civil War Sites Study. The Civil War Sites Study Act of 1990 requires a study of
Civil War battlefields in the Shenandoah Valley and establishes a Civil War Sites
Advisory Commission to prepare a study of significant Civil War sites and
structures throughout the U.S. The Shenandoah study is due in November; the
broader study is due a year later.
Bureau of Land Management-USSR Agreement on Global Change Research.
A memorandum of understanding is being developed between the Bureau of Land
Management, the Soviet Branch of the World Laboratory and the Goscom
Hydromet Alpine Geophysical Institute to establish a global change research
project. The project will establish paired ecosystem monitoring sites in four
corresponding climatic regions in the Soviet Union and the United States. The
project will be conducted jointly with Colorado State University.
Kesterson Repayment. A report is being prepared for submittal to Congress on
repayment of the Kesterson Reservoir cleanup. The report, requested by
Congress by March 15, 1991, was sent for review by interested parties in July.
Glen Canyon Test Flow Releases. On November 1, 1991 "interim" flows are
scheduled to be implemented at Glen Canyon Dam. Interim flows will remain in
effect until a record of decision regarding dam operations is made following
scheduled 1993 completion of the Glen Canyon Dam Environmental Impact
Statement. The effect of interim test flows on downstream resources are presently
being monitored and evaluated.
Colorado River Salinity Program. In October, the Bureau of Reclamation will
submit a report to Congress on the status of the Colorado River Salinity Program
18
in response to an audit resolution agreement reached with the Inspector General
last September.
Corwin Springs Known Geothermal Resource Area Study, MT. The
Geothermal Steam Act Amendments Act of 1988 requires a report to Congress on
the impact of present and potential geothermal development in the vicinity of
Yellowstone National Park on the thermal features in the park and
recommendations on measures necessary to protect park resources. The
Secretary's report to Congress is currently being reviewed in the Department.
Ellis Island Special Study. The National Park Service was requested in the FY
91 Appropriations Act to study options for improving access to Ellis Island. The
study has been completed and recommends against any bridge. Congressman
Guarini and Senator Lautenberg have introduced legislation to require the National
Park Service to establish a permanent bridge from Liberty State Park (NJ).
Crater Lake. A report on the "Presence or Absence of Significant Thermal
Features Within Crater Lake National Park," prepared by the U.S. Geological
Survey and Bureau of Land Management will be transmitted to Congress.
Jordanelle Dam. The U.S. Geological Survey will transmit its report reviewing the
Jordanelle Dam, which is being constructed by the Bureau of Reclamation. The
report examines whether the dam was built to sufficiently rigorous standards
concerning seismic risks and whether adequate water supply is available.
West Coast Coastal Barriers. The Fish and Wildlife Service is working with West
Coast States (outside Alaska) to recommend to Congress additional to the Coastal
Barrier Resources System that are acceptable to the States. Draft maps for public
comment should be available during this period.
Bureau of Indian Affairs Schools and Public Schools. In September, the
Bureau of Indian Affairs will transmit to the Office of Management and Budget the
results of a study which compares costs, staffing patterns and funding levels
between Bureau and local public schools in selected parts of the country.
Report to Congress - Great Lakes Fish and Wildlife Restoration. The Great
Lakes Fish and Wildlife Restoration Act requires an annual report to the Committee
on Merchant Marine and Fisheries and the Committee on Environment and Public
Works. The first Report will be submitted in late November 1991.
Status and Trends of Wetlands in the Conterminous United States. The
Emergency Wetlands Resource Act of 1986 requires an updated report on
wetlands status and trends every 10 years. The first report was due to Congress,
19
September 1990, but is currently in Departmental clearance process. The report
is expected to be released during this period.
Helium Report. The Bureau of Mines will submit a cost-benefit analysis of the
Bureau's helium operations to fulfill a request by the House Committee on
Appropriations.
Aquatic Nuisance Species. A Federal Task Force, co-chaired by the Fish and
Wildlife Service, will complete a report in November on the Zebra mussel and other
nonindigenous species.
Oil and Gas Atlas. During the early part of FY 1992, the Minerals Management
Service will award a contract to the Texas Bureau of Economic Geology for the
preparation of a Gulf of Mexico Oil and Gas Atlas Series. The project is estimated
to cost $4 million over 4 years with cooperators contributing approximately
$500,000 each and the Minerals Management Service $100,000 per year plus
significant manpower participation.
Gas Valuation Study. A contract will be awarded before the end of the year to
evaluate alternative valuation procedures for natural gas. The Minerals
Management Service collects Federal royalties (as a percentage of gas value) on
all gas produced on Federal and Indian onshore and offshore lands. The study will
assess the extent to which current or alternative approaches to gas valuation meet
policy goals, such as protection of the public's interest, administrative efficiency,
market driven operations, and effects seen in industry decision making.
20
MEETINGS or EVENTS
September 7-25. As part of the Department of the Interior's Hungarian Assistance
Project, a delegation from the Department will travel to Budapest to assist the
Republic of Hungary to develop an effective program to manage its mineral
resources in an emerging market-based economy.
September 12-20. The Third Session of the Intergovernmental Negotiating
Committee for a Framework Convention on Climate Change will be held in Nairobi,
Kenya.
September 16. The Franklin Delano Roosevelt Memorial Commission will host a
ground breaking ceremony for the FDR Memorial in West Potomac Park,
Washington, D.C.
September 16. The World Forestry Congress will be held in Paris.
September 16. The Interstate Mining Compact Commission will hold its Annual
Meeting in Indianapolis, Indiana.
September 16-19. The First International Conference of the National Science
Foundation-sponsored National Center for Geographic Information and Analysis will
be held in Boulder, Colorado.
September 16-20. A United States-China Bilateral Symposium on Droughts and
Arid-Region Hydrology, under annex 3 of our protocol with the People's Republic
of China, will be held in Tucson, Arizona.
September 17. The Migratory Bird Conservation Commission will meet in
Washington, D.C.
September 22-27. The Department of the Interior will host the quarterly meeting
of the State and Tribal Royalty Auditors Committee in Washington, D.C.
September 23-27. The Minister of Tourism and Environment from Zimbabwe will
be in Washington D.C. and travelling around the U.S. for consultations on listing
of the African elephant under the Endangered Species Act and CITES and on
management of national parks.
September 26-27. The National Earthquake Hazards Reduction Program Advisory
Committee will meet in Menlo Park, California.
21
September 27. The National Strategic Materials and Minerals Program Advisory
Committee will be meet in Salt Lake City, Utah.
September 29-October 2. The American Mining Congress will meet in New
Orleans, Louisiana.
October 7-10. An international National Park Service 75th Anniversary
Symposium, "Protecting our National Parks, Challenges and Strategies for the 21st
Century," will be held in Vail, CO.
October 14-18 or October 28-November 1. The new Secretary General of
CITES, Izgrev Topkov, will be visiting Washington to consult on CITES issues.
October 18. The Western States Water Council will hold its quarterly meeting in
Tulsa, Oklahoma.
October 28-29. The National Earthquake Prediction Evaluation Council will meet
in Portland, Oregon.
October 28-November 3. The Annual Meeting of Working Group VII of the U.S.-
U.S.S.R. Agreement on Cooperation in Environmental Protection will be held in
Williamsburg, Virginia.
Mid-October. The Alaska Federation of Natives will hold its annual convention.
November 3-9. The National Water Resources Association Conference will be
held in Monterey, California.
November 3-9. The Middle East Water Summit will be held in Istanbul, Turkey.
If host President Turgut Ozal of Turkey is successful in preventing an invitation to
Israel, the United States likely will not participate.
November 4. The National Minerals Policy Forum, convened by the Department
of the Interior to assist in developing an overall minerals policy for the
Administration, will meet in Washington, D.C.
November 4-7. The Standing Committee of the 65 Nation Convention on
Wetlands of International Importance will meet in St. Petersburg, Florida.
November 5-7. A symposium on the Pacific Exclusive Economic Zone,
cosponsored by the U.S. Geological Survey and the National Atmospheric and
Oceanic Administration, will be held in Portland, Oregon.
22
November 5-7. The First National Conference on Climate Change and Water
Resources Management will be held in Albuquerque, New Mexico.
November 19-23. The Fish and Wildlife Service, in conjunction with the European
Economic Community and the government of France, will sponsor a conference
of African elephant range States, potential donor nations, and key non-government
organizations at the United Nations Environmental Program headquarters in
Nairobi, Kenya.
November 25-26. The annual Canadian Minerals Conference on issues of
minerals availability and environmental impacts of mining practices will be held in
Ottawa, Canada.
November. National American Indian Heritage Month.
December 3-4. The North American Wetlands Conservation Council will met in
Sacramento.
December 4-7. The USS Arizona Memorial in Honolulu, Hawaii is planning four
days of solemn observances and special programs to commemorate the 50th
anniversary of the attack on Pearl Harbor.
23
NEGOTIATIONS
Florida Buy-Back. The Department of the Interior is negotiating with the Governor
of Florida to initiate a joint Federal/State buy-back of Outer Continental Shelf
leases in the Eastern Gulf of Mexico. These negotiations result from the
President's June 1990 decision on the Outer Continental Shelf Oil and Gas
Leasing Program. The Florida delegation has been active in monitoring this
situation and supports the Governor's position to not participate in a joint buy-back.
Thunder Basin National Grasslands. During 1989 and 1990 royalty revenues
from a coal lease were incorrectly distributed by the Federal government. The
State of Wyoming was temporarily underpaid and five of its counties were
overpaid. The State believes it is owed interest for the time it was underpaid.
Negotiations with the Governor are underway.
Anadromous and Estuarine Species Jurisdiction Under the Endangered
Species Act. The Fish and Wildlife Service and National Marine Fisheries Service
are revising the 1974 memorandum of understanding regarding jurisdictional
responsibilities and listing procedures under the Act. The current agreement does
not clarify agency jurisdiction over anadromous and estuarine species where both
agencies have overlapping interests and historical jurisdictions.
Collier Land Exchange. This project involves the exchange of the Phoenix Indian
School Property in Arizona for 108,000 acres in Florida which would be included
in the Big Cypress National Preserve and the Ten Thousand Islands and Florida
Panther Wildlife Refuges, plus the establishment of an education trust fund for
various Indian tribes. In July 1991 the Colliers declined to exercise their rights to
consummate this exchange based on the National Park Service approved appraisal
of the Phoenix Indian School. In accordance with the legislation authorizing the
exchange, the Indian School will be offered for sale to the highest bidder over the
minimum price established by the Act. These bids are due by October 30. The
Colliers will have the right to acquire the property at 5 percent over the highest bid
until December 4.
Contract Mining. The Office of Surface Mining has identified a number of large
coal companies that made extensive use of contract mining operators and
subsequently abandoned their sites without completing reclamation or paying all
reclamation fees and civil penalties. Three companies--Wellmore Coal
Corporation, A.T. Massey Coal Company, and Westmoreland Coal Company--have
signed agreements to provide information on all of their contract mining operations.
During the next 90 days, the Department of the Interior will identify sites on the
companies' contractor lists that have outstanding violations and negotiate
abatement and payment plans with the companies.
24
Crab Orchard National Wildlife Refuge Superfund Site. This National Wildlife
Refuge, located in southern Illinois, contains the Department of the Interior's first
Environmental Protection Agency National Priorities List Superfund site. Before
Congress created this refuge, World War II munitions production occurred on the
property. One potentially responsible party, a private company, has recently
entered into an agreement with the Department of the Interior to help clean up the
PCB contamination. This Fall, a four-party inter-agency agreement among the
Environmental Protection Agency, the Illinois Environmental Protection Agency, the
U.S. Army (for the Department of Defense) and the Department of the Interior,
outlining the entire clean up process will be finalized. This will be the first
four-party agreement of this type ever signed.
Crow Tribe V. United States (Crow 107th) (Cl.Ct.). The U.S. Motion to Dismiss
has been argued in this breach of trust action for $80,000,000 for lost use, rents
and profits arising from a 100-year-old General Land Office survey error that
excluded 36,000 acres from the Crow Reservation in Montana. About 13,000
acres were turned over to the Northern Cheyenne Tribe, most of the rest was
patented, and the U.S. holds most of the minerals underlying about 14,000 acres.
Rather than sue the Northern Cheyenne Tribe and other landowners in the
disputed strip, the Tribe is working with its Congressional delegation to prepare a
legislative settlement of its claim, and negotiating with a team appointed by the
Secretary. The Tribe will present a preliminary proposal on September 17. The
next negotiating session will be in Billings in early October.
Removal of Feral Horses at Ozark National Scenic Riverway, MO. The
Missouri League for Wild Horses was granted a temporary restraining order against
the removal of feral horses at Ozark National Scenic Riverway. The feral horses
(15 were identified in a recent flyover) are competing directly for forage with
several species of wildlife, both game and non-game species. Ozark proposed
action in accordance with National Park Service Management Policies which calls
for removal "whenever an exotic plant or animal species threatens park resources
or public health and when control is prudent and feasible." The court granted a
temporary restraining order, and briefs on the merits will be filed in September in
response to the court's hearing on a request for preliminary injunction. The park
recently received a request for a permit allowing the Wild Horses League to
manage the horses within the park.
District of Columbia Stadium. The District of Columbia and the owner of the
National Football League's Washington Redskins are negotiating an agreement
that will allow construction of a new sports stadium adjacent to Robert F. Kennedy
Stadium in Anacostia Park, Washington, D.C. The National Park Service has had
limited discussions with the District of Columbia about the proposed new stadium,
but has not been involved in the agreement negotiations. National Park Service
25
approval, and possibly legislation, will be necessary for the new stadium to be built
on National Park Service property.
Manassas National Battlefield Park Legislative Taking. Most of the former
owners of property taken by the Manassas National Battlefield Park Amendments
of 1988 have been compensated, at a cost to the United States of approximately
$118,000,000. Several claims, however, still remain unresolved. The major
unresolved claim is that for compensation due to Virginia Power for the relocation
of its power lines included in the taking. The National Park Service and Virginia
Power are discussing compensation.
Offshore Pipelines. The Minerals Management Service and the Department of
Transportation are negotiating a revised Memorandum of Understanding that would
allow the Department of the Interior to assume jurisdiction over the offshore
pipelines in the Gulf of Mexico which are used to transport outer continental shelf
oil and gas production to shore. Policy guidance on responsibilities are being
addressed in the Executive Order pending approval for implementation of the Oil
Pollution Act. Approval of the Executive Order should clear the way toward
resolution of the issues that have delayed progress on the memorandum of
understanding.
Matagorda Island. A draft comprehensive management plan to integrate
management for the entire island by the State of Texas and the Fish and Wildlife
Service have been prepared for signatures by the Secretary of the Interior and the
Governor of Texas. A current joint management agreement applies to the north
portion of the island that is owned partially by the Fish and Wildlife Service and
partially by the State of Texas. The draft agreement would extend the joint
management to include also the south portion of the island which the Fish and
Wildlife Service purchased with Land and Water Conservation Fund monies. It is
now in review by the Department of the Interior. Current language in the FY 1992
House Interior Appropriations Bill would prohibit implementation of such an
agreement.
Flathead Indian Irrigation Project. The Bureau of Indian Affairs is negotiating
with Confederated Salish and Kootenai Tribe of Flathead and the Joint Board of
Control to resolve longstanding disagreements on the Flathead Indian Irrigation
Project.
26
COURT DECISIONS/LITIGATION
United States V. Exxon Corporation, et al., (D. Alaska), and United States V.
Alaska, (D. Alaska). This case involves large amounts of natural resource damage
assessments against the Exxon Corporation arising out of the Exxon Valdez oil
spill. With the disapproval of the civil settlement of the Federal and State
government's civil claims against Exxon Corporation, our efforts shift to the criminal
litigation. We will have to devote continued efforts to funding studies in support of
both civil and criminal cases, responding to Freedom of Information Act discovery
requests and subpoenas for documents, and developing affirmative discovery
requests for use by the Department of Justice in the Federal case.
Mt. Graham Red Squirrel V. Yeutter, No. 89-410 (D. Ariz. & 9th Cir.). This action
will determine whether a quarter-billion dollar astronomical complex can be built
atop a peak in Southern Arizona which is the sole habitat of an endangered
squirrel species. Congress has ratified the original biological opinion under the
Endangered Species Act that construction of three telescopes would not jeopardize
the species' survival. Squirrel populations fell significantly, a change in
circumstance which would normally require reinitiation of consultation. When the
Forest Service declined to reopen consultation on the grounds that the ratifying
legislation precluded it, the Sierra Club sued. The trial court denied a motion to
temporarily restrain construction. A final hearing is set for September 27.
International Litigation. The Supreme Court will now review the Eighth Circuit
ruling that Section 7 of the Endangered Species Act applies to Federal agency
actions conducted within foreign countries. Oral argument will probably be
scheduled for October or November.
Belville Mining Co. V. Lujan ("Belville 1"), No. C-1-89-790 (S.D. Ohio). On July
22, 1991, the court ordered the Department to promulgate a rule defining Valid
Existing Rights, which would determine the conditions under which mining would
be allowed in national parks which, in the absence of "valid existing rights," would
be prohibited. A proposed definition had already been published four days before
the court's decision; the Department will report to the court bimonthly on progress
in finalizing the rule. The Department moved that the court reconsider its decision
concerning the disapproval of State definitions of Valid Existing Rights, since
legislation allows State programs to be more stringent than Federal regulations.
A decision on the motion is expected within 90 days, after which the Department
will have 60 days to appeal.
Whitney Benefits, Inc. V. United States, No. 499-83 (Fed. Cir.). In February
1991, the U.S. Court of Appeals for the Federal Circuit affirmed that the Surface
Mining Control and Reclamation Act's prohibition of surface mining on alluvial
27
valley floors in Wyoming constituted a taking of Whitney's mineral interest and
confirmed the lower court's award of $60.3 million plus interest. On July 31, the
Government filed a petition for certiorari to the U.S. Supreme Court. Whitney filed
a response in opposition. The Supreme Court is likely to rule on the petition within
the next 90 days.
West Virginia Mining and Reclamation Association V. Snyder,No 91-0123-
W(S) (N.D. W.Va.). On July 31, 1991, two West Virginia industry organizations
filed to enjoin the Office of Surface Mining from taking enforcement actions in the
State without first issuing ten-day notices pursuant to the Surface Mining Control
and Reclamation Act. On August 30, the court enjoined the Office of Surface
Mining, ruling that the memorandum of understanding providing for waiver of the
ten-day notice constituted a "rule" that was adopted without the notice and
comment required by the Administrative Procedures Act. The Department has 60
days to decide whether to appeal the preliminary injunction.
Gray Wolf Restoration to Yellowstone. On August 8, 1991, the Defenders of
Wildlife entered a complaint in the U.S. District Court in the District of Columbia
against the Secretary of the Interior and the Directors of the National Park Service
and Fish and Wildlife Service. The complaint alleges that the failure to reintroduce
wolves into Yellowstone is a violation of the agency duties to conserve endangered
species, to develop and implement recovery plans for endangered species, and to
use agency authorities in furtherance of the purposes of the Endangered Species
Act. The complaint must be answered within 60 days.
Northern Cheyenne Tribe V. Hodel, 842 F.2d 224 (9th Cir.) (1988). The Tribe
challenged the adequacy of the Department's 1981 Powder River Coal lease sale
Environmental Impact Statement. The District Court ruled that the socio-economic
impact analysis was inadequate. The Ninth Circuit reversed and remanded for
further proceedings. On July 24, the District Court ordered the government to
refund the bonus bids and rental payments of two lessees. We anticipate a hearing
September 23 on whether the remaining leases should be suspended or voided.
Wind River Indian Water Rights Litigation. The Shoshone and Arapaho Tribes
are suing the State of Wyoming in State court alleging a failure on the part of the
State Engineer to enforce the instream flow dedication of their reserved water right.
On March 11, the court found that the Tribes are entitled to make instream flow
dedications, but placed limitations on those dedications. On May 3, the Wyoming
Supreme Court granted the State of Wyoming's motion for stay of the District Court
decision. Briefing is completed and we await the scheduling of oral argument.
1002 Report Lawsuit. In August 1989, lawsuits were filed against the Department
alleging deficiencies in the Department's "1002 Report" on the Arctic National
28
Wildlife Refuge, and the need for a supplemental environmental impact statement.
The District Court ordered the Department to circulate an update of the Bureau of
Land Management's assessment of the oil and gas potential of the Arctic National
Wildlife Refuge's coastal plain as a supplemental environmental impact statement.
The Department will recommend an appeal of this decision.
Coeur d'Alene Tribe V. Gulf Resources, Inc. In this first tribal suit for natural
resource damages under Superfund, the Coeur d'Alene Tribe seeks funds for the
restoration of fish, birds, and other creatures in the Coeur d'Alene River and Lake
Coeur d'Alene affected by the Bunker Hill Superfund Site in North Idaho. From
1890 to 1988, mines and smelters dumped millions of tons of tailings containing
heavy metals into the river. A key question is whether the Tribe's statute of
limitations has run out. The Department of Justice will intervene to argue that the
Tribe (and the U.S.) have several years before they must file suit.
Living History Lawsuit, Cook V. Lujan (D.D.C.) A volunteer, Lauren Cook,
alleges that the National Park Service discriminates against women in Civil War
"living history" presentations. Plaintiff Cook sought to play a Confederate fife
player at a battlefield surgery scene at Antietam National Battlefield. Plaintiff
challenges the policy of the National Park Service which requires living history
participants accurately to portray the physical characteristics of the role either
directly or thorough costuming and makeup.
29
STORIES OF INTEREST TO THE MEDIA
Economic Analysis of Proposed Critical Habitat for the Northern Spotted Owl.
On May 21, the Fish and Wildlife Service convened a panel from several Federal
agencies to conduct an economic analysis of the proposed critical habitat for the
northern spotted owl. The analysis will continue into the fall.
Endangered Species Listings. Possible endangered species listings for salmon
species in the Columbia River system and Delta Smelt species in California will
generate strong media interest, especially regarding economic impacts.
AB Lateral Hydropower Facility. The possible private development of a
hydropower facility requiring diversions of water from the Gunnison River in
Colorado, immediately above the Black Canyon of the Gunnison River National
Monument, is of interest to Western news media. The Bureau of Reclamation will
issue a Record of Decision in September.
California Water Stories. The media will be interested in California water stories,
including passage of drought legislation, Reclamation Reform Act Amendments,
Central Valley Fish and Wildlife Protection legislation, and the issue of State vs.
Federal administration of the Central Valley Project.
Glen Canyon Interim Flows. The Secretary is expected to announce interim
operating criteria for Glen Canyon powerplant on November 1.
National Park Service 75th Anniversary Media Stories. August 25 marked the
75th Anniversary of the Organic Act that created the National Park Service in 1916.
The National Park Service anticipates continued intense media interest.
Christopher Columbus Quincentennial. The National Park Service will officially
kick-off the Christopher Columbus Quincentennial on Columbus Day, October 12,
at Columbus Plaza in Washington, D.C.
Technical Assistance In Earth Sciences With Mexico. Signing of a
Memorandum of Understanding between the U.S. Geological Survey and Mexico's
National Institute of Statistics, Geography and Information by the end of this year
will provide technical exchange and cooperative activities with Mexico in surveying
mapping, remote sensing, and geographic information systems.
30
OTHER
Coastal Barrier Resources System. Coastal States and local governments have
until December 1, 1991, to recommend minor and technical boundary modifications
to units of the System within their jurisdiction. The Fish and Wildlife Service will
work with the Congress and State and local governments to complete this process
as required by the Coastal Barrier Improvement Act.
Historic Preservation Grants to Indian Tribes and Alaska Natives. The
National Park Service plans to solicit applications in November for grants to
support the preservation of a wide range of important aspects of tribal and Native
Alaskan cultural heritage.
Boundary Adjustment Criteria. Public Law 101-628 (November 28, 1990) directs
the Secretary to develop, within one year, criteria for evaluating proposed changes
to existing park boundaries. The National Park Service is working on this task.
Low Water Levels and Hazardous Waste Investigation at Glen Canyon
National Recreation Area, UT/AZ. Three years of drought have caused a
significant drop in the water level of Lake Powell--70 feet below full pool over the
last 2 years. Millions of dollars have been spent to move marinas, extend utilities
and construct low water access. The receding water level had exposed a number
of discarded batteries and other debris that may be hazardous. ARA Leisure
Services, the concessioner at Glen Canyon National Recreation Area, has been
investigated by the Departmental Inspector General and the Arizona and Utah
Attorneys General, for alleged dumping of hazardous waste in Lake Powell. The
National Park Service has initiated an internal review of park management's
activities and decisions as they relate to concession hazardous waste management
and is planning a complete site investigation to determine if contamination exists
at the alleged sites.
Pacific Salmon Treaty Act of 1985. Pursuant to the Pacific Salmon Treaty Act
of 1985, the President, Secretary of State, and Secretary of the Interior, will be
involved in appointing six Indian representatives to the U.S. Section of the Pacific
Salmon Commission from nominations by 24 northwest treaty fishing tribes. Tribal
nominations are being made.
31
LIMENT DOMINA JUSTITLA OF PERVICE
Office of the Attorney General
Washington, D. C. 20530
September 13, 1991
MEMORANDUM FOR EDE HOLIDAY
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
FROM
ASSISTANT TONY SCHALL TO Tony Schall THE ATTORNEY GENERAL
SUBJECT:
Department of Justice 1991 Fall Issues
Assessment
The following report summarizes key issues and activities at
the Department of Justice for the period September 15, to
December 31, 1991. The memorandum is in five parts, as follows:
Part I:
Highest priorities of the Acting Attorney
General;
Part II: Acting Attorney General's activities;
Part III: Major initiatives of the Acting Attorney
General and the Justice Department;
Part IV: Legislative matters of major interest to
the Acting Attorney General and the Justice
Department; and
Part V:
Important cases and matters, negotiations
and conferences, and studies.
I. HIGHEST PRIORITIES OF THE ACTING ATTORNEY GENERAL
(1) The confirmation of Judge Clarence Thomas of the United
States Court of Appeals for the District of Columbia Circuit to
be Associate Justice of the United States Supreme Court (See Part
IV A below) i
(2) Legislative matters that are important to the
President's policies and programs; most importantly, crime and
civil rights legislation. (See Parts IV B - IV E and IV H
below) ;
(3) The war on violent crime (See Part III A below) ;
(4) The prosecution of white collar criminals, including
those involved in financial (savings and loan) fraud, insurance
fraud, and money laundering (See Part III B below) ; and
(5) The war on drugs, including the prosecution of former
Panamanian dictator Manuel Noriega (See Part III C below).
II. ACTING ATTORNEY GENERAL ACTIVITIES
(1) September 23. [Washington, D.C.] On behalf of the
United States, the Acting Attorney General and Janet Steiger,
Chairman of the Federal Trade Commission, will sign the antitrust
cooperation agreement that has been negotiated with the European
Community Competition Commission. The agreement provides for
notification and consultation on internationally sensitive
antitrust matters, in a manner similar to agreements the United
States now has with Australia and Canada.
(2) September 26. [San Francisco, CA] The Acting Attorney
General will address the Multinational Asian Organized Crime
Conference. High-level law enforcement officials from ten
Pacific Rim countries will attend the conference. The conference
stems from the Department's Organized Crime National Strategy,
which proposed measures to assess and combat the emerging threat
of Asian organized crime in the United States. The conference
will provide an opportunity for foreign officials to discuss the
nature and impact of organized crime in their own countries, with
the majority of time devoted to presentations on a variety of
topics relevant to fighting Asian organized crime in the United
States.
(3) October 2. [Louisville, KY] The Acting Attorney
General will address the Kentuckiana Crime Stoppers International
Annual Conference.
(4) October 7. [Minneapolis, MN] The Acting Attorney will
address the annual meeting of the International Association of
Chiefs of Police.
(5) October 9. [Minersville, PA] The Acting Attorney
General will attend the dedication ceremony for the Schuylkill
Federal Correctional Institution.
(6) October 15. [Washington, DC] The Acting Attorney
General will attend the dedication of the Law Enforcement
Officers Memorial.
2
(7) October 16. [Quantico, VA] The Acting Attorney
General will be the keynote speaker at the Federal Bureau of
Investigation's Violent Crime Symposium.
(8) November [Washington, D.C.] The Acting Attorney
General will convene the Justice Department's Symposium on the
Bill of Rights.
(9) December [The Hague, Netherlands] The Acting Attorney
General expects to be the United States representative to the
TREVI Ministerial Conference. TREVI (Terrorism, Radicalism,
Extremism, Violence International) is an international group
which is comprised of ministerial department heads, chiefs of
police, and directors of security services from twelve European
countries. The group meets on a semiannual basis in the country
holding the European Community presidency. The United States,
along with several other countries, has observer status in this
group.
(10) In addition to the foregoing, during this period, the
Acting Attorney General will participate in events honoring and
recognizing (i) those who were instrumental in the investigation
and prosecution of Walter LeRoy Moody, Jr., for the mail bomb
murders of Judge Robert S. Vance of the United States Court of
Appeals for the 11th Circuit and Savannah, Georgia civil rights
lawyer Robert Robinson; and (ii) the individuals responsible for
the successful resolution of the recent hostage situation at the
federal correctional institution in Talladega, Alabama. The
Acting Attorney General has suggested that the President
participate in these events.
III. MAJOR INITIATIVES OF THE ACTING ATTORNEY
GENERAL AND THE JUSTICE DEPARTMENT
In light of the priorities identified by the President and
the issues that confront the Nation, the Acting Attorney General
is placing particular emphasis on the following initiatives:
A. Combating Violent Crime
The first civil right of every American is to be free
from violent crime, whether it be on the street, in the
workplace, or at home. To a large extent, combating violent
crime and punishing its perpetrators are matters for state and
local law enforcement. The Acting Attorney General and the
Justice Department, however, have important roles to play in this
area. Currently, in addition to its regular day-to-day law
enforcement effort, the Justice Department has two crime
initiatives underway: Project Triggerlock and Violent Crime Task
Forces.
3
Project Triggerlock is a comprehensive effort to use
federal laws pertaining to firearm violence to target the most
dangerous violent criminals in each community and put them away
for hard time in federal prisons. Each United States Attorney's
Office is establishing a task force of prosecutors which will
develop a strategy to identify and apprehend the most violent
offenders in its district. In addition, a Triggerlock Working
Group of the Attorney General's Advisory Committee of United
States Attorneys has been established to work with the Justice
Department's Criminal Division.
Violent Crime Task Forces are pilot projects using the
"Weed and Seed" strategy. "Weed and Seed" is a thematic
initiative designed to involve non-law enforcement entities in
follow up to law enforcement operations targetting specific drug
infested neighborhoods. The theme can be flexibly applied to
divergent types of law enforcement programs. For example, in
phase one of a Weed and Seed effort, federal, state, and local
law enforcement agencies engage in a massive clean sweep effort
to "pull the weeds" -- to remove the infrastructure of gangs, of
violent predators, and of drug dealers from the target area. In
phase two, federal and state agencies "plant the seeds" for
economic development and housing. Pilot Weed and Seed projects
have been initiated in Kansas City, Missouri, and Trenton, New
Jersey.
Finally, an important part of the cooperative effort
with state and local law enforcement is the Asset Forfeiture
Program. The Comprehensive Crime Control Act of 1984 and the
Anti-Drug Abuse Act of 1986 grant the Attorney General and the
Justice Department latitude in the seizure of currency and
property used in connection with criminal operations. Money in
the Fund is shared with state and local law enforcement agencies
based upon their proportional participation in investigations
which lead to forfeitures. In the last six years, the Fund has
collected more than $1.5 billion in seized assets, and in fiscal
year 1990 alone $200 million was shared at the state and local
levels.
B. White Collar Crime
White collar crime also will be an important priority of
the Acting Attorney General. In this area, the Justice
Department will continue to direct a major effort at financial
institution fraud, in response to the savings and loan crisis and
to be ahead of any overlapping problems in the banking industry.
In the area of financial institution fraud enforcement, the
Justice Department has:
a. Established the position of Special Counsel
for Financial Institution Fraud;
4
b. Directed the creation of a Financial Frauds
Coordinating Unit to support the work of the Special Counsel;
C. Formed a senior interagency group to identify
the most significant savings and loan and bank fraud cases and to
focus investigative and prosecutive resources on them;
d. Established the New England Bank Fraud Task Force;
and
e. Increased resources in the U.S. Attorneys' Offices
to support the prosecution of these important matters.
In January, the Attorney General submitted to the
President and the Congress a two-year report on the
accomplishments of the Justice Department in prosecuting fraud in
the Nation's thrift industry. The report stated that, during the
period from October 1, 1988, through December 31, 1990, 403
defendants had been convicted in major savings and loan fraud
cases. Seventy-nine percent of those convicted received prison
terms, including one as long as 30 years. By way of update, as
of August 31, 1991, 820 defendants had been charged in major
savings and loan fraud cases. Of the 676 defendants in that
group whose cases had been brought to final resolution, 628 had
been convicted, a 92 percent success rate.
In fiscal year 1991 alone, 953 defendants have been
charged in major fraud cases involving banks, credit unions, and
savings and loan institutions combined. These prosecutions have
resulted in 773 convictions, a 94 percent success rate.
In February, the Attorney General announced the creation
of a New England Bank Fraud Task Force. The Task Force opened
for business in Boston on May 6. The Task Force is led by the
Fraud Section of the Justice Department's Criminal Division and
includes attorneys from the Tax and Civil Divisions and the U.S.
Attorneys' Offices in Massachusetts, New Hampshire, Maine,
Vermont, Rhode Island, and Connecticut.
The Economic Crime Council, an advisory body for the
Department of Justice, has identified fraud and corruption in the
insurance industry as an area needing intensified federal law
enforcement attention. The Justice Department is part of a
multiagency Insurance Working Group that is collecting and
analyzing insurance fraud data in order to determine the scope of
the problem, identify types of insurance frauds, establish
priorities, seek sources of referral, and conduct training. The
Council will meet on October 8 to review and adopt a plan for
responding to the problem of fraud and corruption in the
insurance industry.
5
During this period, two investigations in the area of
white collar crime will receive particular priority attention:
first, the investigation into the activities of the Bank of
Credit & Commerce International (with a particular focus on money
laundering), which is ongoing in Tampa and Miami, Florida,
Atlanta, Georgia, Washington, D.C., and elsewhere, and which saw
a Racketeer Influenced and Corrupt Organizations indictment
unsealed in Tampa on September 5; and second, the investigation
into possible bid rigging and other forms of fraud in connection
with auctions of U.S. Treasury securities.
Other area of particular focus for the Department's
white collar crime effort will be the HUD scandals, defense
procurement fraud, and public corruption.
C. The War on Drugs
The war on drugs will be a major priority of the Acting
Attorney General. The focus will be upon both domestic and
international law enforcement, with particular emphasis on money
laundering and the extradition of fugitives to the United States.
The emphasis on multi-agency efforts through the Organized Crime
Drug Enforcement Task Forces (OCDETF) targetting major drug
organizations will continue.
D. Organized Crime
The Justice Department's organized crime strategy for
the 1990s was announced in January. The strategy seeks to
eliminate the influence of the 24 traditional families of LaCosa
Nostra (LCN). In addition, available resources are being
targetted at relatively new and emerging crime syndicates,
including Asian organized crime groups.
E. Civil Rights
The enforcement of the Nation's civil rights laws is an
important priority of the Acting Attorney General. Particular
emphasis is being placed on combating hate crime. In 1990, the
Department had a 100 percent success rate in prosecuting hate
crimes. A related area consists of cases involving the use of
excessive force by police. Following the widely publicized
Rodney King incident in Los Angeles, the Justice Department's
Civil Rights Division was directed to undertake a review of all
official complaints of police misconduct filed within the past
six years to discern whether any pattern of misconduct is
apparent. That review is ongoing. In addition, the National
Institute of Justice of the Justice Department's Office of
Justice Programs was asked to determine if there is a correlation
between police brutality and a lack of adequate training and
internal disciplinary procedures. It is expected that a contract
6
for that part of the project will be awarded at the end of
September.
In the civil rights area, the Justice Department's
Community Relations Service (CRS) will continue to be active.
The job of CRS is to provide mediation and conciliation in
situations where tension exists in communities as a result of
"disputes, disagreements, or difficulties relating to
discriminatory practices based on race, color or national origin
" This past summer, CRS worked to mediate and conciliate in
situations involving racial tension in Milwaukee, Wisconsin, and
Brooklyn, New York.
Finally, approximately ten cases are being brought
every month under procedures enacted in 1988 to strengthen the
Department's role in eliminating housing discrimination
throughout the country. Many of these cases involve
discrimination against families with children and persons with
disabilities, who had no federal recourse against housing
discrimination before the Fair Housing Act was amended in 1988.
F. International Affairs
A priority of the Acting Attorney General will be work
in the international area in conjunction with the
Administration's overall program and initiatives. This work is
an important part of the war on drugs and the effort against
terrorism. It also is important in connection with the
introduction of the "Rule of Law" to the Soviet Union and Eastern
Europe.
G. Judicial Vacancies
A priority of the Acting Attorney General will be
working with White House Counsel's Office in the process of
selecting nominees to fill judicial vacancies, including
vacancies resulting from the creation of additional judgeships
last year.
H. Prison Expansion
Expanding federal prison capacity will be an important
part of the Acting Attorney General's law enforcement effort.
I. Deregulation Initiatives
The Justice Department has a seat on the White House
Competitiveness Council and is a member of Administration working
groups that are studying regulatory reform initiatives in various
industries, including banking, broadcasting, and health care.
Work in this area is ongoing:
7
(1) Department of Justice Bank Competition Working
Group: The Department of Justice chairs an interagency bank
competition working group that consists of the Department, the
President's Council of Economic Advisors, the Treasury
Department, and the Board of Governors of the Federal Reserve
System. The purpose of the working group is to assess the
strength of competition to the banking industry from non-banking
entities. Since its inception in April 1991, the working group
has identified research questions and discussed existing
empirical evidence on competition among banking and non-banking
entities.
(2) Television Broadcast Market Rules: On August 7,
the Federal Communications Commission issued a Notice of Inquiry
inviting comments from the public on whether it should modify
current television broadcast rules that limit the number of
broadcast stations that a single entity may own and that prohibit
the television networks from owning cable stations. These rules
were promulgated during the 1960s and 1970s when the cable
industry was in its infancy and there were fewer channels of
communication and program producers available. The Justice
Department will be studying these issues with a view toward
determining whether, at this time, the rules tend to impede or
promote competition.
(3) Competitiveness Council Health Care Working Group:
White House Counsel has asked the Justice Department to lead an
interagency working group to explore proposals for enhancing by
competition the efficiency of the federal government's
procurement of health care services. Other participating
agencies will include the Department of Health and Human
Services, the Office of Personnel Management, the Treasury
Department, and the Commerce Department.
J. Motor Fuel Excise Tax Evasion
Beginning December 1, 1990, the federal motor fuel
excise tax was increased from 9 cents to 14 cents per gallon.
Nationwide, even before the tax hike, evasion schemes were
depriving the Government of as much as $1 billion annually.
The Department of Justice has identified fuel excise tax
evasion as an enforcement priority and is engaged in a vigorous
program to fight widespread noncompliance with the fuel excise
tax laws. The magnitude of the problem is illustrated by the
indictment pending in the Eastern District of New York charging
Joseph Galizia (a soldier in the Genovese organized crime family)
and four others (two of whom are members of a Russian crime
group) with the evasion of more than $14 million in gasoline
excise taxes over a ten-month period. This case will be tried in
October 1991, and should receive substantial press coverage.
8
The motor fuel excise tax evasion problem is not
confined to the New York area, and Justice Department attorneys
are working closely with the Federal Bureau of Investigation and
the Internal Revenue Service to quell evasion schemes that have
sprung up nationwide. Cooperation among these federal agencies
has led to 28 convictions for motor fuel excise tax evasion over
the last two and one-half years. Those convicted include not
only organized crime figures, but also otherwise legitimate
dealers, such as Getty Terminals Corp. (a subsidiary of Getty
Petroleum Co.) and a Getty vice-president, each convicted last
year of conspiracy and tax evasion.
PART IV. LEGISLATIVE MATTERS OF MAJOR INTEREST
TO THE ACTING ATTORNEY GENERAL AND
THE JUSTICE DEPARTMENT
A. Thomas Hearing
Hearings on the nomination of Judge Clarence Thomas of
the United States Court of Appeals for the District of Columbia
Circuit to be Associate Justice of the United States Supreme
Court.
B. Comprehensive Violent Crime Control Act of 1991
Earlier this year, the Administration submitted its
proposed legislation to Congress as S. 635 and H.R. 1400. In
lieu of the Administration bill, the Senate passed a bill that
contains elements of S. 635 (such as limitations on certain
habeas corpus petitions and death penalty and firearms
provisions) but also has many objectionable features, including a
provision dealing with the exclusionary rule that would be a
significant setback for law enforcement. The House Subcommittee
on Crime recently reported its own version of a Violent Crime
bill that also differs substantially from the Administration's
proposal. The Justice Department will closely monitor the
progress of these bills during the fall. It is expected that the
House-Senate conference will take place in October and that a
bill will be on the President's desk before the end of the year.
C. Money Laundering Legislation
Two money laundering-related bills, H.R. 26 and S. 953,
are being considered by Congress. Title IX of S. 953 contains a
number of money laundering provisions, although few of these
relate to law enforcement. H.R. 26, the House money laundering
bill, passed the House in June, but has been ignored by the
Senate Banking Committee. It is anticipated that the Justice
Department will try to resurrect provisions of H.R. 26 at the
9
conference on the banking reform bill if S. 953 passes. In
addition, the Money Laundering Improvements Act of 1991 (S. 1665)
is pending in the Senate. It was introduced at the request of
the Department and in anticipation that Senator D'Amato would
offer it as an amendment to S. 953 when that bill reaches the
Floor.
D. RICO Amendment
The Department of Justice will continue to monitor the
progress of H.R. 1717, the Racketeer Influenced and Corrupt
Organizations Act (RICO) Amendments of 1991. The legislation has
been reported by the House Judiciary Committee, but no date has
been set for floor consideration. This legislation is designed
to reform the Federal civil RICO statute to address the perceived
problem of inappropriate uses of the statute by private
plaintiffs.
E. Forfeiture Legislation
During this quarter, the Justice Department will submit
a bill to amend the criminal and civil forfeiture statutes and to
extend the scope of forfeiture provisions to new offenses. The
proposed legislation will also include minor changes to
forfeiture procedures, technical amendments, and changes in the
Department of Justice Assets Forfeiture Fund.
F. Senate Advice and Consent on Signed MLATs and
Extradition Treaties and Protocols
This fall, the Justice Department will seek, through the
State Department and the White House, Senate advice and consent
to ratification of the following mutual legal assistance treaties
(MLATs), and extradition treaties/protocols:
MLATs
Extradition Treaties
Argentina
Australia (Protocol)
Jamaica
Bahamas
Nigeria
Belgium (signed, but the State
Panama
Department may want to
Spain
renegotiate)
Uruguay
Germany (Protocol)
Spain (Protocol)
Switzerland
G. BCCI Hearings
A number of Congressional Committees are examining
various allegations related to the Bank of Credit & Commerce
International. The Justice Department anticipates that hearings
will be held on this matter throughout the upcoming quarter.
10
H. Civil Rights Act of 1991
H.R. 1, which the Administration opposes, passed the
House of Representatives without sufficient strength to override
a Presidential veto. Companion legislation has not been
introduced in the Senate. However, on June 27, Senator John
Danforth introduced his proposal for civil rights legislation in
three separate bills: S. 1407, 1408, and 1409. It is
anticipated that during the period between September 15 and the
adjournment of Congress the focus of activity on this issue will
be on the Danforth bills, which, in their present form, do not
meet the requirements that the President has laid down for a
civil rights bill that he would sign.
I. Resale Price Maintenance (RPM)
The Senate has passed and the House Judiciary Committee
has reported legislation that would override two important
Supreme Court decisions: Monsanto and Sharp. These cases
involve the issue of proof of per se unlawful agreements to fix
resale prices. The bills differ somewhat, but each would permit
a jury to infer the existence of an unlawful agreement to fix
resale prices merely from the fact of complaints to a
manufacturer about a discounter's prices when those complaints
lead to the discounter's termination. Each would also apply a
per se rule to agreements to terminate a discounter regardless of
whether there is an agreement on price or price level between the
manufacturer and other dealers. The Department has consistently
opposed these bills, and a senior advisors veto threat is
outstanding. Action on the House floor is possible this fall.
J. Production Joint Ventures
Both the House and Senate Judiciary Committees have
reported bills to extend the protections of the National
Cooperative Research Act to production joint ventures. Sought by
the Administration, such legislation would guarantee rule of
reason treatment to such ventures and provide for the limitation
of antitrust liability to actual damages only. Both House and
Senate versions, however, limit the coverage of the legislation
with respect to joint ventures with foreign parties. The House
bill, H.R. 1604, limits foreign ownership to 30 percent and
requires all joint venture facilities to be located in the United
States. The Senate bill, S. 479, requires "principal" joint
venture production facilities to be located in the United States
and a demonstration of a "substantial commitment" to the United
States economy by each party. The Justice Department, the
Commerce Department, the Treasury Department, and the United
States Trade Representative have said that they will recommend a
veto. Statements of Administration Position are being prepared
which repeat this threat, joined in by the Secretary of State.
11
K. Defense Production Act, Exon/Florio
Legislation to extend the Exon/Florio review provisions
of the Defense Production Act to acquisitions of United States
firms when the acquisition by a foreign firm affects the economic
security of the United States (as opposed to its "national
security" -- the present statutory scheme) will likely be
considered this fall. The Justice Department expects to join
other agencies in opposing such bills as, among other things,
potentially anticompetitive.
L. McCarran-Ferguson Insurance Antitrust Exemption
Bills that would amend the McCarran-Ferguson Act to
limit the antitrust exemption provided for the business of
insurance are pending in the House and Senate Judiciary
Committees (H.R. 9, Brooks; S. 430, Metzenbaum), although
congressional attention is currently focused on insurer solvency
and regulation. The Department provided views to the Office of
Management and Budget on the Brooks bill in April, stating
opposition to the manner in which it would reform the exemption
(risk to potentially procompetitive activities, uncertainty as to
effect on state action). The Justice Department has been working
on an options paper with a working group of the Economic Policy
Council in an effort to develop a detailed Administration
position on McCarran-Ferguson reform.
M. Bell Operating Companies Manufacturing
The Department has testified with the Commerce
Department in support of legislation to lift the manufacturing
line-of-business restriction in the AT&T decree. The Senate-
passed bill, S. 173, would allow the Bell Operating Companies
(BOCs) to manufacture telecommunications equipment, but has drawn
a senior advisors veto threat because of its domestic content and
domestic manufacturing requirements. The Administration also
opposes the bill's restrictions on inter-BOC joint ventures and
other new regulation of BOC manufacturing activities.
N. Federal Tort Claims Act
Members of Congress continue to resolve insurance
coverage problems through proposals to expand Federal Tort Claims
Act (FTCA) coverage. The Justice Department is opposed to
expansion of the FTCA where the government exercises no
supervision or control. Such proposals could well be the focus
of activity in Congress during this period. An example is H.R.
2239, a proposal to make providers of health care services to
Community and Migrant Health Centers and Health Centers for the
Homeless federal employees for purposes of tort liability under
the FTCA.
12
O. Symms Amendment - Takings
Senator Steve Symms succeeded in attaching S. 50, the
Private Property Rights Act of 1991, to the Senate-passed version
of the Surface Transportation Efficiency Act. S. 50 is designed
to assure that the goals of Executive Order 12630, the Takings
Executive Order, are met. Legislation similar to the Symms bill
is now pending in the House but has not yet been added to that
chamber's surface transportation legislation. The Justice
Department expects hearings on the legislation before the House
Government Operations Committee in September. It is anticipated
that the hearings also will address a takings initiative proposed
by former Attorney General Thornburgh and Office of Management
and Budget Director Darman which provides a financial incentive
to avoid unintended Fifth Amendment takings. The bill -- the
Judgment Fund Financial Management Act -- would have each agency
reimburse the judgment fund for takings awards arising from
program activities of that agency. The Administration fully
supports both legislative proposals and has pledged to work for
their passage.
P. Federal Facilities Legislation
Sovereign immunity waiver legislation has passed the
House and has been reported out of the Senate Environment and
Public Works Committee. Both House and Senate bills are now on
the Senate calendar. The Administration is preparing a Statement
of Administration Policy which opposes the legislation unless
changes are made as suggested in testimony by witnesses last
spring.
Additional matters on the legislative horizon that are
of interest to the Justice Department are listed in the
memorandum attached to this report.
PART V. IMPORTANT CASES, MATTERS AND
INITIATIVES, NEGOTIATIONS AND
CONFERENCES, AND STUDIES
Between September 15 and December 31, Justice Department
lawyers will be representing the United States in a wide variety
of cases, and Department components will be involved in a wide
variety of matters and initiatives. Also, during this period,
there will be various negotiations and conferences, and studies
will be released. As of now, the following items are viewed as
significant and/or likely to attract media attention:
13
A. Cases
(1) Supreme Court Cases. The following are significant
cases that the Court will hear after the October 1991 Term opens:
a. Freeman V. Pitts. This case will be argued by the
Solicitor General on the opening day of the Supreme Court's Term,
October 7. This case, arising out of the DeKalb County, Georgia,
school desegregation litigation, considers the standards for
determining when a school district has satisfied its
desegregation obligations. The government is arguing that the
court of appeals exceeded its authority in requiring race-
conscious student assignments to counteract demographic changes
in the county that affected the racial composition of the
schools, after the school district had been found to have
fulfilled its obligations in the area of student assignments.
b. U.S. State Department V. Ray. In this case, which
will be argued October 9, the government is taking the position
that the court of appeals erred in requiring the State Department
to disclose the names of, and personal information about, Haitian
nationals it interviewed upon their return to Haiti after
unsuccessful attempts to enter the United States illegally. The
government is contending that the information is exempt from
disclosure under the Freedom of Information Act's privacy
exemption.
C. Bray V. Alexandria Women's Health Clinic. In this
case, which will be argued October 16, the government argues that
the Ku Klux Klan Act of 1871 does not confer federal court
jurisdiction over a suit by abortion providers and patients
against Operation Rescue demonstrators who block access to
abortion clinics. The Supreme Court has ruled that the statute
applies only against those who act because of a "class-based
animus," and the government contends that opposition to abortion
is not the equivalent of discrimination against women as a class.
The government's position is that the claims against the
Operation Rescue demonstrators should be addressed in state
court.
d. INS V. Doherty. This case will be argued October
16. It involves the deportation of a terrorist of the Irish
Republican Army. The government contends that the Attorney
General may properly take the country's opposition to terrorism
and other foreign policy concerns into account in denying
withholding of deportation, and may consider the applicant's
ineligibility for asylum because of his terrorist activities in
declining to reopen asylum proceedings previously waived by the
applicant. The government seeks to deport Doherty to Great
Britain, where he stands convicted of a variety of crimes,
including the murder of a British officer in Northern Ireland.
14
e. United States V. Mabus. Not yet scheduled for
argument, this is the Mississippi higher education desegregation
case. The government contends that Mississippi has not yet
satisfied its obligation to desegregate its former system of
black and white colleges, because admission policies still
discriminate on the basis of race and the State maintains
duplicative programs at nearby historically white and
historically black schools. The government does not, however,
agree with the private plaintiffs that the Constitution requires
the State to spend certain amounts on the historically black
schools to compensate for past neglect. The government's
position is that the Equal Protection Clause protects the
students -- not the institutions -- and that so long as the
students are afforded the choice of which college to attend
without regard to race, the question of state expenditures on
specific institutions is one for the State to resolve, not the
federal courts.
f. Lee V. Weisman. In this case, which is not yet
scheduled for argument, the court of appeals ruled that an
invocation and benediction delivered by a rabbi at a public
middle school graduation ceremony violated the First Amendment's
Establishment Clause. The government contends that this was
error, and is urging the Court to adopt a rule that requires some
showing of coercion before a practice will be found to constitute
an illegal establishment of religion.
g. United States V. Verdugo-Urquidez. The Justice
Department will be asking the Supreme Court to review a decision
of the United States Court of Appeals for the Ninth Circuit in a
case having implications for inter- national relations and
international law-enforcement policy. The case involves a
Mexican citizen whom American agents arrested in Mexico and
brought to the United States for prosecution. The United States
Court of Appeals for the Ninth Circuit held that the agents'
conduct violated the United States' international obligations and
that it was improper to obtain custody of the defendant other
than through the extradition treaty between the United States and
Mexico.
(2) Other Cases.
a. Noriega Trial. Jury selection began on September 5
in the narcotics prosecution of former Panamanian dictator Manuel
Noriega. The trial, which is being held in the United States
District Court for the Southern District of Florida (Miami), is
expected to last well into the coming quarter.
b. Exxon Valdez. As a result of the 1989 oil spill,
one criminal action and various civil cases are pending. The
criminal case is scheduled for trial in October. This scheduling
followed the court's rejection of a criminal plea and a proposed
15
$100 million fine. (As a result, the related $900 million civil
consent decree was withdrawn.) There is enormous uncertainty
about what sentence would be imposed if convictions are obtained.
The maximum fine each defendant would ordinarily face if
convicted on all five counts is $1.6 million. However, if the
court imposes fines under the Alternative Fines Act, the total
amount could be as high as $700 million. The Justice Department
is continuing to prepare the civil case for natural resource
damages and cleanup costs and is working closely with the State
of Alaska in the effort.
C. Alvarez-Machain Appeal. The United States Court of
Appeals for the Ninth Circuit is expected to rule this fall on
the government's appeal of the district court order dismissing
the indictment against Humberto Alvarez-Machain on the grounds
that his abduction by Mexican officials at the behest of U.S. law
enforcement officers, combined with the subsequent protest of the
Mexican Government, violated the U.S.-Mexico Extradition Treaty.
d. Pollard Appeal. It is possible that, during the
period between September 15 and December 31, the United States
Court of Appeals for the District of Columbia Circuit will rule
on the appeal by Jonathan Pollard from the 1990 denial of his
motion to withdraw his plea of guilty to charges of espionage on
behalf of Israel.
e. Census Litigation. During this period, there likely
will be activity in two important cases arising out of the
decennial census:
(1) Tucker V. United States Department of
Commerce. This Illinois class action is the first case
challenging the 1990 Census to reach a court of
appeals. Plaintiffs sought to bring a class action of
Illinois residents to compel a statistical adjustment
to the 1990 Census to reflect the undercount of certain
subgroups in the population. The district court
dismissed the suit on political question grounds and
plaintiffs have appealed, with the City of Chicago
filing an amicus brief in support of plaintiffs' suit.
The Justice Department brief filed on July 22, 1991,
urges that plaintiffs' claims present a non-
justiciable political question and that the actions of
the Executive Branch defendants were committed to
agency discretion by law.
(2) City of New York V. United States Department
of Commerce. Plaintiffs in this suit are a number of
states, localities, and organizations challenging the
July 15, 1991, decision of the Secretary of Commerce
not to adjust the decennial census to correct for
differential undercounts and overcounts of various
groups. The Secretary decided not to adjust the census
16
because of a lack of consensus among expert opinion as
to whether an adjustment would improve the accuracy of
the census. The Secretary was particularly concerned
that the adjustment under consideration was not
sufficiently reliable to adjust for the undercount and
correctly locate the missing persons in the correct
geographic locations. Plaintiffs have challenged that
decision, arguing that an adjustment is required both
by the Constitution and the statutes governing the
census. The Justice Department has moved in the
district court to dismiss on political question
grounds.
Although the district court has not reviewed the
administrative record or undertaken an analysis of the
agency decision, it has nevertheless authorized
plaintiffs to undertake far-ranging document discovery
and depositions of agency officials, including
depositions of Secretary of Commerce Robert Mosbacher,
the Director of the Census Bureau, other Census Bureau
officials, and an employee in the White House Counsel's
office. In the wake of the denial by the United States
Court of Appeals for the Second Circuit of the Justice
Department's mandamus petition, the Justice Department
will be moving for a protective order in the district
court, and will request a stay of the depositions.
(f) Competition in Contracting. On June 26, the United
States filed an action in the United States District Court for
the District of Columbia seeking a declaratory judgment that 31
U.S.C. § 3554 (c), a provision of the Competition in Contracting
Act of 1984 (CICA), is unconstitutional under the doctrine of
separation of powers. Section 3554 (c) provides that the
Comptroller General may order a procuring agency to award a
disappointed bidder or other interested party on a federal
project its costs of filing a bid protest, bid preparation costs,
and attorney fees, whenever the Comptroller General determines
that the procuring agency violated a statute or regulation.
Since CICA's inception, the Department of Justice has
taken the position that there are only three constitutional ways
that such fees and costs could be awarded: (1) by the Executive
Branch procuring agency on its own initiative, in the
implementation of a statute directing that such fees be paid; (2)
by the Judicial Branch, in the consideration of challenges to
agency denials of fee awards pursuant to a grant of subject
matter jurisdiction to hear such claims; or (3) by Congress
itself, through the passage of a private bill on behalf of a bid
protestor that has met the requirements of the Constitution's
presentment and bicameral approval clauses. In this case, the
award of fees and costs fits into none of these categories. It
is possible that this issue will be resolved through the
17
legislative process. In July, the Senate passed an amendment to
the National Defense Authorization Act that would give the
Comptroller General authority to make recommendations, not
orders, regarding fees and costs.
(g) A-12/Stealth Fighter. On June 7, 1991, two
Government contractors filed a complaint in the United States
Claims Court arising out of the Department of the Navy's
termination of the contract for the development and production of
the A-12 "stealth" fighter plane. The case is McDonnell Douglas
Corporation and General Dynamics Corporation V. United States.
The complaint (i) challenges the Navy's determination that the
contractors were in default and the Navy's demand for the return
of $1.4 billion in unliquidated progress payments, (ii) seeks
$1.4 billion in equitable adjustments, and (iii) asks for an
unspecified amount in "termination for convenience" costs.
(h) United States of America V. Inslaw, Inc. Inslaw,
when it became bankrupt, was engaged in a dispute over the use of
software with its customer, the Department of Justice. Inslaw
secured a judgment from the bankruptcy court against the
Department for approximately $8 million, the bankruptcy court
concluding that the Department had violated the automatic stay in
bankruptcy which prohibits creditors from interfering with a
debtor's property after it files for bankruptcy. The district
court affirmed. However, in a major victory for the Justice
Department, the United States Court of Appeals for the District
of Columbia Circuit reversed, ruling that none of the acts or
omissions alleged by Inslaw would amount to a violation of the
automatic stay. Accordingly, the Court of Appeals vacated all
orders related to the automatic stay, the only basis for Inslaw's
prior judgement. The Court later denied Inslaw's petition for
rehearing en banc, but stayed its mandate to permit Inslaw to
file a certiorari petition. The mandate has now issued. This
matter, which is the focus of an investigation by the House
Judiciary Committee, will continue to attract media attention.
(i) Washington Legal Foundation, et al. V. Alexander,
et al. In this case, which is pending in the United States
District Court for the District of Columbia, white college
students and a legal foundation have alleged that the Department
of Education has abdicated its statutory duty to terminate
federal funding to colleges and universities that offer or permit
race-based (minority) scholarships. Plaintiffs seek a
declaration that Title VI of the Civil Rights Act of 1964 forbids
universities from offering scholarships in which race is a
factor, and that Title VI requires the Department of Education to
terminate federal funding to universities that have such
programs. Plaintiffs also contend that Title VI's alleged
prohibition extends even to private scholarships offered by
educational institutions, so long as those institutions receive
any federal funding.
18
Virtually every college and university in the country
receives federal funding, and many (if not most) offer minority
scholarships. Education's policy toward such scholarships has
been in flux since late 1990 and early 1991. Shortly after
Secretary Lamar Alexander was confirmed in March of this year,
the agency began a sweeping reevaluation of the issue. The
government's motion to dismiss, arguing that the plaintiffs lack
a right of action against the government to dictate Education's
enforcement policy, was argued on August 22, 1991. If that
motion is denied, it may be necessary for the government to take
a position on the sensitive issue of whether Title VI forbids
colleges and universities from offering minority scholarships.
(j) Specter, et al. V. Garrett, et al. This case,
which is pending in the United States District Court for the
Eastern District of Pennsylvania, challenges the process by which
the Navy and the Defense Base Closure and Realignment Commission
developed recommendations for closure of naval bases,
particularly the Philadelphia Naval Shipyard, under the Base
Closure and Realignment Act of 1990. Plaintiffs include four
U.S. Senators and six Congressmen from Pennsylvania, New Jersey,
and Delaware, as well as the states' Governors, Attorney
Generals, and the states themselves. Three labor unions and
their presidents are also plaintiffs. Plaintiffs essentially
claim that the Navy predetermined to close the Shipyard and that
it engineered that recommendation by ignoring contrary evidence
and withholding information from the Commission and from the
General Accounting Office, which had some statutory role in
monitoring the process.
Plaintiffs have moved for a preliminary injunction
forbidding the Department of Defense from closing any naval base
while the case is pending, and a hearing on that motion has been
set for September 30. The district court ordered immediate
discovery, and both the Navy and the Commission have begun
turning over hundreds of thousands of documents. Plaintiffs
intend to follow up with numerous depositions, including those of
the Secretary and Undersecretary of the Navy and Secretary of
Defense Cheney.
(k) Indian Rights to Shellfish in the Pacific
Northwest. In United States V. Washington, litigation pending in
the United States District Court for the Western District of
Washington, the Justice Department soon must decide what position
to take on the claimed right of 16 Indian tribes to take
shellfish from certain areas. The Department of the Interior
supports the tribes' right to take any species of shellfish
wherever found with certain specific exceptions, and other
federal agencies are willing to support a right of entry onto all
tidelands which a tribe has historically fished as long as their
security and operational concerns are not harmed. The State of
Washington, on the other hand, opposes a comprehensive
19
determination of the treaty right. Since the Department
represents the interests of the tribes and federal agencies,
whatever decision it makes is sure to be controversial and
opposed by either the State or the tribes. The Department has
been investigating the possibility of a settlement as a more
amicable, less controversial way to resolve this issue.
(1) Red Squirrels. The litigation over protection of
the red squirrel from construction of a telescope by the
University of Arizona in its habitat continues to be front-page
news in Arizona. In May, plaintiffs failed to enjoin
construction until a more rigorous monitoring program could be
put in place, and the University has proceeded with construction
activity this summer, albeit at a slow pace. A hearing for a
preliminary injunction and summary judgment is scheduled for the
end of September.
(m) Spotted Owls. The litigation over protection of
habitat for the Northern spotted owl in the Pacific Northwest is
a major media story both there and nationally because of the way
it is seen as pitting development and economic interests squarely
against environmental and preservation values. There are several
cases pending in various jurisdictions (United States district
courts in Washington and Oregon, the United States Court of
Appeals for the Ninth Circuit, and the United States Supreme
Court) on a myriad of issues, but all are fundamentally concerned
with the balance between timbering and environmental interests.
(n) California Supreme Court Case Involving the
Constitutionality of California's Unitary Tax Scheme. The
California Supreme Court has agreed to hear the consolidated
cases of Barclays Bank of California V. Franchise Tax Board and
Barclays Bank International, Ltd. V. Franchise Tax Board and has
permitted the United States to file an amicus brief. These cases
present the question whether California's unitary taxation system
as applied to a foreign corporation and its domestic subsidiary
represents an unconstitutional burden upon, and interference
with, foreign commerce. The brief filed by the United States on
May 15, 1991, at the request of the Department of State, supports
Barclays Bank's position and argues that California's unitary
taxation system, as applied in these cases, violates the Foreign
Commerce Clause of the United States Constitution. These
consolidated cases are now awaiting argument and decision in the
California Supreme Court; no date for argument has been
scheduled.
B. Matters and Initiatives
(1) Bolivian Surrender/No Extradition Decree
During the period between September 15 and December 31,
the Justice Department will continue to monitor Bolivia's
20
Surrender/No Extradition Decree, which is modeled after
Columbia's. It is anticipated that Bolivian authorities will
request evidence in connection with their prosecution of
surrendering traffickers. The Department intends to press
Bolivia to act on some 15 pending extradition requests and to
sign the new extradition treaty negotiated last year.
(2) Federal Deposit Insurance Corporation (FDIC)
The Justice Department currently is handling 134 bank
tort cases involving over $5.3 billion. The amount at stake in
this litigation has increased despite a number of favorable
judicial decisions. Currently, the Department is engaged in
discussions regarding several areas of tension with certain bank
and thrift regulatory agencies, particularly the FDIC and the
Resolution Trust Corporation (RTC). The issues arise in several
discrete contexts. Frequently, the agency commences a damage
action against the officers and directors of a failed bank,
thereby allowing for third-party claims as well as counterclaims
sounding in tort to be filed against the United States or the
agency. Sometimes, direct tort suits are filed against either
the agencies or the United States by persons alleging injury due
to the agencies' actions. In other instances, the agencies
desire to construe suits against themselves to sound in tort in
order to substitute the United States as defendant and, possibly,
to avoid having to pay any adverse judgment out of their own
funds. Recently, the Department commenced discussions with the
FDIC and the RTC with a view toward arriving at a common position
on the issues in tort cases.
(3) Domestic Policy Council Wetlands Task Force
Through its Environment and Natural Resources Division,
the Justice Department has continued to work with the Wetlands
Task Force to develop recommendations for steps to help strive
for the goal of no net loss of wetlands. In August, the
President announced the results of that effort, which included
commitments to funding acquisition of these resources, creation
of mitigation banks in which persons seeking to use some wetlands
can create others as offsets, and streamlining the regulatory
process. The latter includes revising the "Wetlands Delineation
Manual" to define more carefully what a wetland is. The manual
revision has been put out for notice and comment, and it is
expected that a formal rule will be promulgated this fall
pursuant to the Administrative Procedure Act.
(4) NEPA Application to CERCLA Cleanups
The Justice Department is participating in interagency
discussions on the issue of whether the National Environmental
Policy Act (NEPA) should be applied to cleanups performed by
federal agencies at their own facilities under the Comprehensive
21
Environmental Response, Compensation, and Liability Act (CERCLA).
This is a matter of considerable significance to the
administration of federal facilities.
(5) Revisions to the Justice Department's Merger
Guidelines. During this period, the Justice Department will be
working with the Federal Trade Commission on revisions to the
Antitrust Division's Merger Guidelines, with the objective of
issuing the first ever joint federal enforcement guidelines.
(6) Airline Tariff Publishing
The Justice Department is conducting a civil
investigation into airline pricing practices, focusing primarily
on the use of computerized fare dissemination services to
facilitate communication and agreement among carriers on future
pricing strategies. All major airlines and the Airline Tariff
Publishing Company, an industry joint venture, are under
scrutiny. Airlines publish their rates on an on-line computer
system. While this provides customers with up-to-the-minute
information on rates, it may permit tacit collusion--the airlines
announce tentative price increases but abandon them if
competitors do not follow suit. In addition, the system may be
used to retaliate against price cutters.
(7) Financial Interest/Syndication Rules
In the wake a ruling by the Federal Communications
Commission (FCC), the television networks have petitioned the
Justice Department to consent to a modification of the antitrust
consent decrees that currently restrict their ownership of
financial interests in programming and their participation in the
syndication business. Organizations representing the producers
are expected to strongly advocate that the Department not consent
or that it delay any action until after the time for
reconsideration of the FCC ruling has expired. House Judiciary
Committee Chairman Jack Brooks has expressed an interest in the
process.
(8) Heating Oil Investigation
Following expressions of congressional concern and
public outrage, the Justice Department has been conducting an
investigation into the causes of a rapid increase in the prices
of home heating oil following a cold snap in December 1989. The
investigation is continuing.
(9) Gasoline Price Increases
Also continuing is the Justice Department's
investigation into the gasoline price increases that followed the
Iraqi invasion of Kuwait.
22
(10)
HIV
The Justice Department currently is working with the
Department of Health and Human Services to fashion regulations
addressing the issue of admitting into the United States
individuals with HIV infection. This is an issue that
continues to attract media attention.
C. Negotiations and Conferences
(1) Colombia. The Justice Department represents the United
States in negotiations and planning aimed at implementing the
Declaration of Intent between the United States and the
Government of Colombia with respect to mutual cooperation in the
investigation and prosecution of narcotics traffickers. The
Department expects further requests from Colombia for U.S.
evidence needed to prosecute narco-traffickers who have
surrendered to ensure that the "surrenderees" are successfully
prosecuted and appropriately punished for their crimes. The
Department also wants to protect both U.S. law enforcement
interests and the lives of cooperating witnesses and their
families.
(2) Meeting with Swiss Authorities to Discuss Resolution of
Pending Forfeiture Cases. Justice Department attorneys plan to
meet this fall with Swiss central and cantonal authorities to
discuss more than a dozen cases in which the United States has
requested that the Swiss freeze bank accounts believed to contain
drug trafficking proceeds. The participants will try to devise
case-specific solutions that will allow the forfeiture of these
funds under either Swiss or United States law. They will also
address the issue of the disposal of the assets upon forfeiture.
(3) Organized Crime Conference. An Organized Crime Seminar
is scheduled in Suzdol, Soviet Union, for October 21-25.
Participants will include law enforcement experts from
approximately 20 countries. The Justice Department will
represent the United States at the conference.
(4) Chemical Action Task Force. The Report of the Chemical
Action Task Force, which was endorsed at the July London Summit,
made numerous recommendations for preventing the diversion of
chemicals from international commerce to produce illicit drugs.
During the next three months, the Justice Department, in
conjunction with the State Department, will participate in
bilateral and multilateral meetings to promote implementation of
the Task Force recommendations.
(5) State Bar President's Day. For the second consecutive
year, the Justice Department is planning to host State Bar
President's Day, tentatively scheduled for early November. For
this event, the presidents, presidents-elect, and executive
23
directors of each of the state bar associations will be invited
for a day of briefings by senior departmental officials on
Department of Justice initiatives and programs.
(6) Soviet Visit. As part of a single country project on
the "American Legal System and the Rule of Law" sponsored by the
United States Information Agency, an eight-member delegation from
the Soviet Union will be visiting the Department of Justice
during the first week of October. This will be the delegation's
second visit to the Department, and will occur at the conclusion
of its month-long visit to the United States. It is expected
that the delegation will meet specifically with the law
enforcement components and Bureau of Prisons officials. The
delegation consists of six officials from the Ministry of Justice
and two members of the Leningrad (soon-to-be St. Petersburg) City
Council.
(7) Memorandum of Understanding Concerning Aviation
Security. On July 30, 1991, a Memorandum of Understanding (MOU)
concerning aviation security was signed by the United States and
the then Union of Soviet Socialist Republics (USSR) Governments.
At that time, it was agreed that aviation security experts from
the United States and the USSR would meet within 90 days of
signing the MOU and would discuss crisis management policies and
practices. The Federal Bureau of Investigation (FBI) has been
assisting the State Department in the coordination of this
project, inasmuch as the MOU discusses the actions to be taken in
the event of a terrorist incident involving either a Soviet or
U.S. aircraft. A meeting has been tentatively scheduled to occur
in Moscow during October 1991. Representatives from the FBI, the
Federal Aviation Administration, and the State Department are
scheduled to attend.
D. Studies
(1) Study on Export Restraints. Last year, the Justice
Department's Antitrust Division announced the initiation of a
study project to consider the question of whether the antitrust
laws could be used to reach overseas conduct that impedes U.S.
consumers. It is anticipated that this study, which has involved
consultation with other government agencies concerned with the
issue, will be completed this fall. This is a matter of extreme
interest to other federal agencies and to foreign government
agencies.
(2) Immigration and Naturalization Service (INS) 1990
Statistical Yearbook. INS prepares and submits a Statistical
Yearbook annually to Congress. The Yearbook contains statistics
on immigrant, nonimmigrant, and refugee arrivals, naturalization
and derivative citizenship, the apprehension and removal of
illegal aliens from the United States, and other program-related
statistics. The 1990 report should be released by November.
24
(3) Federal Bureau of Investigation (FBI) Studies.
During the period between September 15 and December 31,
the FBI will release three studies that could attract public
interest. In October, the FBI will publish a report of a
Special Survey of Selected Felonious Killings of Law Enforcement
Officers. Also in October, it will release its six-month
preliminary crime trend data for 1991.
A comprehensive study on the forensic use of DNA
technology was conducted by the National Research Council of the
National Academy of Sciences and is expected to be published this
fall. This study was funded in part by the National Institute of
Justice of the Justice Department's Office of Justice Programs
and the FBI to provide an independent perspective of the
technical and social issues associated with the forensic
applications of DNA technology. The findings of the study will
undoubtedly be of interest in connection with identifying
recommended regulatory controls which may be appropriate in this
area and which are now under consideration by Congress and by
state legislative bodies.
25
U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
September 6, 1991
MEMORANDUM
To:
Tony Schall
Assistant to the Attorney General
From:
W. Lee Rawls WTR
Assistant Attorney General
Subject: Significant Pending Legislation
Attached is a list of legislation which is currently pending
in the House and/or Senate. We anticipate that the attached
legislation will see final action before Congress recesses this
year. The Department of Justice has has a significant interest
in either opposing or supporting these bills.
Bill
Status
Admin. Position
I. Criminal Laws
Crime Bill
S. 1241 passed Senate.
Admin supports
bill, H.R. 1400 &
S. 635. House
will mark-up
Democrat's bill
week of 9/23.
Support adoption
of President's
provisions.
Public
Passed in Senate
Supports.
Corruption
Crime bill S. 1241.
Reauthorization
Position
of Independent
pending.
Counsel (by Dec.
1992)
Violence Against
S. 15. Passed Senate
Opposes.
Women Act of 1991
Judiciary Committee.
(Biden)
Brady Bill
H.R. 7 and S. 1241.
Opposes unless
Waiting period for
part of
handgun purchases
President's
crime bill is
adopted.
Anti-Terrorism Act
S. 740. H.R. 2371.
Opposes.
of 1991
Passed in Senate.
Reform of the Banking
H.R. 6. Passed House Banking
Position
Industry (Includes
S. 543. Passed Senate Banking.
pending at
DOJ Money Laundering
OMB.
Provisions)
Racketeer Influenced
H.R. 1717. Passed in House.
Opposes.
and Corrupt
Organizations
Barring Witness Fees
H.R. 2324. Passed in House
Supports.
for those Incarcerated
Judiciary Committee.
(Hughes)
Sports Gambling (Hatch)
S. 474. Pending in Senate
Opposes.
Judiciary.
Federal Prison
S. 1691. No action.
Opposes.
Industries
UNICOR (Dixon)
II. Civil Laws
Bill
Status
Admin. Position
Civil Rights Act
H.R. 1. Passed by House.
Veto threat.
of 1991
No formal Senate action.
Joint Production
S. 1163 - Admin. bill, no action;
Veto threat on
Ventures
H.R. 27, on House calendar;
H.R. 27 & S. 47
S. 479, on Senate calendar.
Civil Justice Reform
S. 1569, pending in Judiciary,
No position.
no action.
Motor-Voter
S. 250, on Senate calendar.
Strongly oppose
Endorse S. 921
as alternative.
Resale Price
S. 429. Passed Senate;
Veto threat on
Maintenance
H.R. 1470, on House calendar.
both bills.
Hatch Act Repeal
S. 914 & H.R. 20. No action
Veto threat (no
in either chamber.
yet formally
presented).
Baby Bell
S. 173, passed Senate.
Veto threat.
No action in House yet.
Community Health
H.R. 2239, pending House
Veto threat.
Centers
Judiciary Cmte; Misc pending
Senate bills. No action.
Cable
S. 12, on Senate calendar
Strongly oppose
& H.R. 1303, in
Veto threat
Energy & Commerce Cmte.
likely.
D.C. Sup. Court
H.R. 568, in D.C. Cmte.
Veto threat.
Campaign Finance Reform S. 3, passed Senate; no House
Veto threat.
bill.
U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
September 13, 1991
MEMORANDUM FOR EDE HOLIDAY
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
FROM:
LYNN M. MARTIN In
SUBJECT:
1991 Fall Issues Assessment
The following report summarizes key issues and activities at the
Department of Labor for September 15 to December 31, 1991.
I.
HIGHEST PRIORITIES - SUMMARY LISTING
o
Strive for better ways to provide working American men and
women with true job security.
o
Develop and implement a strategy to achieve the objectives
of Track III of the President's AMERICA 2000 program.
0
Secure Senate confirmation of DOL's Senior Management Team.
Defeat the Striker Replacement bills (S.55/H.R. 5).
0
Partnership Act (JTPA).
Secure passage of amendments to the Job Training
0
Implement Memorandum of Understanding (MOU) on laber
cooperation with Mexico to support the President's objective
to negotiate a North American Free Trade Agreement (NAFTA).
0
Publish in the Federal Register the Final Rule for the
prevention of occupational diseases caused by Bloodborne
Pathogens by December 1.
0
Examine departmental organization to consolidate duplicate
programs. functions and better serve the beneficiaries of DOL
Implement DOL's Glass Ceiling Initiative,
o
Address OSHA Reform bills (S. 1622/H.R. 3160).
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U.S. Department of Labor
0
Promote DOL's Pension Opportunities for Workers Expanded
Retirement (POWER) proposal for expanded pension coverage,
simplification, and portability.
Revise labor organization financial report forms to
implement the Beck decision.
better implement initiatives to assist Eastern Europe,
Consolidate departmental international activities to help
planned for Albania, Romania, and the Baltics.
Czechoslovakia, and Bulgaria. Similar programs are being
Exemplify DOL as a Model Workplace by upgrading employee
skills, creating a safer, healthier, more productive Federal
workplace where employees achieve greater job satisfaction
through involvement in decision-making, and share this
program with other Federal agencies.
II. SURVEY OF KEY ISSUES
SECRETARIAL ACTIVITIES
Reporter, Hispanic Magazine, El Nuevo Herald, La Opinion,
September 16 and 17. Separate Interviews with National Hispanic
Hispanic Business Magazine and La Prensa. Topic: DOL's Glass
Ceiling Initiative.
September 16. Deliver remarks to education and government
Hilton. Topic: School-to-Work Transition.
leaders at Fortune Magazine's Education Summit, at the Capitol
September 17. Meet at DOL with Veterans' Affairs Secretary
Derwinski, to discuss interagency budget issues; with Rep. Shay
(R-CT), to discuss the Construction Safety Bill; with Dean
Kleckner, President, American Farm Bureau Federation, to discuss
seasonal farmworker issues.
September 18. Participate in the Washington Times Editorial
Board luncheon, to discuss current Labor issues.
September 18. Courtesy call at DOL by George Herbert Walker,
III, Congressional candidate from Missouri.
September 19. Meet with Chairman Pedro Viera, and Vice Chairman
Jose Velez of Service, Employment, and Redevelopment (SER) -
"Jobs for Progress". Subject: Current SER programs.
Topic: State of the workforce.
September 19. Deliver remarks at the National Press Club.
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U.S. Department of Labor
Pensions. September 23. Interview with the Institutional Investor. Topic:
September 23. Deliver keynote address at the National Restaurant
Association's Annual Conference, at the Washington Hilton Hotel.
Topic: The Labor agenda.
September 24 - October 6 - Vacation
October 7. Deliver keynote address at the National Alliance of
Business Annual Conference, at the Washington Hilton Hotel.
October 8. Deliver keynote address at the National Construction
Association Annual meeting in Washington. Topics: DOL's Glass
Ceiling Initiative.
October 8. Deliver remarks at the Committee For Economic
Development forum in Washington. Topics: Military training in
the workforce and integrating military personnel into the
civilian workforce.
October 10. Deliver keynote address at the Conference Board's
Human Resources Conference, at the Waldorf-Astoria Hotel, NY.
October 12. Lunch at DOL with Clayton Yeutter, Chairman,
Republican National Committee.
October 12. Deliver remarks at the Indiana Republican State
Dinner, at the Indianapolis Civic Center, IN.
October 14. Deliver keynote address at the Western Wisconsin
2000 Economic Development Conference, sponsored by Rep. Steve
Gunderson (R-WI), in LaCrosse WI. Topic: The changing workforce
and how we can prepare for it.
October 16. Co-host at DOL with U.S. Trade Representative Carla
Hills, a meeting of the Labor Advisory Committee on Trade Policy
and Trade Negotiations.
October 17. Deliver remarks at the Bureau of National Affairs
Conference on Work & Family, at the Washington Hilton Hotel.
Topic: DOL work and family agenda.
October 18. Courtesy call at DOL by Arthur Fletcher,
Commissioner, U.S. Commission on Civil Rights.
October 21. Deliver keynote address at the American Trucking
Association's Management Conference, at the Washington Hilton
Hotel. replacements. Topics: ERISA, unemployment taxes, and striker
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U.S. Department of Labor
October 23. Meet for breakfast in the White House Mess with
Ambassador Carla Hills. Subject: Labor Advisory Committee.
October. Host a reception at DOL, following the deposit at ILO
Headquarters of the U.S. ratification of ILO Convention No. 105
concerning the abolition of forced labor (signed by President
Bush last May, and ratified by the Congress).
October 25. Chair meeting, at DOL, of the Pension Benefit
Guaranty Corporation (PBGC) Board of Directors, which includes
Secretary Brady and Secretary Mosbacher.
October 26. Deliver remarks at Sen, McCain's (R-AZ) "Arizona
Woman 1991" event in the Phoenix Convention Center, AZ. Topics:
DOL's Glass Ceiling Initiative, and women in the workforce.
October 26. Attend Arizona GOP Fundraiser.
November 4-6. Chair the U.S. delegation to the European
Community (EC) meeting with Commissioner for Social Affairs,
Vasso Papandreou and his delegation. Topics: Employment rights
and U.S. equal employment opportunity laws and policies; EC
efforts to address disparities between workers in the North and
South of the European Community; and organized labor's response
in Europe to the economic restructuring that is attending the
creation of a European Single Market (EC 1992).
November 7. Deliver remarks at the U.S. Chamber of Commerce
Association's Insiders Breakfast, at the Chamber of Commerce
workforce. building, Washington. Topic: Toward an effective and competitive
November 14. Deliver remarks at a South Carolina GOP cocktail
reception fundraiser in Charleston, SC.
November 15. Deliver remarks at the Fortune 500 Forum for CEOs,
Chairmen, and Presidents of Fortune 500 companies, at the
Charleston Place, SC.
November 25-December 6. Travel to Portugal and Spain to meet
with government officials and private sector representatives, to
share lessons from the European Community (EC) that may be
applicable to a North American Free Trade Agreement (NAFTA) and
European migration flows. Travel to Italy to address the Ripon
Educational Fund's Ninth Annual Transatlantic Conference in Rome.
Brief visit to Moscow to address the closing session of a U.S.-
Soviet conference on business education.
Labor and Social Welfare Arsenio Farell Cubillas, over an
December 9. Preside in Mexico city, with Mexican Secretary of
international conference open to union and industry
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U.S. Department of Labor
representatives from the U.S., Mexico, and Canada. Topic:
Occupational industry. safety and health issues in the iron and steel
INITIATIVES AND POLICIES UNDER DEVELOPMENT
Memorandum of Understanding (MOU) on Labor Cooperation with
Mexico. In support of the President's objective to negotiate a
North American Free Trade Agreement (NAFTA) with Mexico and
Canada, DOL and Mexico's Secretariat of Labor and Social Welfare
signed and are currently implementing an MOU regarding
cooperation on labor issues such as: occupational health and
safety; child labor; general work conditions, including labor
standards and their enforcement; resolution of labor conflicts;
worker training; and labor statistics.
Track III of the President's AMERICA 2000 Program. DOL is
developing and plans to begin implementing a strategy to achieve
the objectives of Track III of the President's AMERICA 2000
program. The strategy will include: (1) a national campaign to
promote public awareness of the benefits of life long learning
and training; (2) certification and standards that are job-
related and industry specific in order to expand structured
training opportunities for adult workers; (3) a program to
promote the use of school-to-work programs that integrate
educational programs with work-based learning concepts, in order
to provide more meaningful educational training opportunities for
youth; and (4) continued implementation of the Secretary's
Commission on Achieving Necessary Skills (SCANS), to provide the
views of employers to both education and training institutions
people to enter and succeed in the world of work.
concerning the skills and proficiency levels necessary for young
Glass Ceiling Initiative. DOL has initiated a four-point program
to remove the artificial barriers ("glass ceiling") preventing
qualified minorities and women from reaching management
positions: to educate Department officials in the intricacies of
corporate human resource issues; to conduct corporate management
reviews having a glass ceiling component; to serve as a catalyst
to foster voluntary efforts within the corporate community to
remove any barriers which may exist to the advancement of
minorities and women into management positions; and to give
public recognition and rewards to Federal contractors
demonstrating particularly creative and effective efforts.
Expansion of Technical Assistance Programs for Eastern Europe. In
FY 1990, DOL initiated programs of labor technical assistance in
Poland and Hungary. In FY 1991, the funding and scope of these
programs was expanded and additional assistance is now being
provided to Czechoslovakia and Bulgaria, and planned for Albania,
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U.S. Department of Labor
Romania, and the Baltics. These programs are designed to
institute social safety nets for dislocation workers; to empower
individuals through training, with tools needed to succeed in a
market economy; and to advance market-oriented reforms of social
and economic institutions. Two new key priorities for 1991 are
assistance to deal effectively with mass unemployment associated
with privatization, and economic education for workers.
BECK Decision/Functional Reporting for Labor Unions. Pursuant to
the Back decision, implement changes to union functional
reporting on the Labor Organization Annual Report Form LM-2.
This change would require unions to report their expenditures in
"functional" categories to disclose expenses made for certain
kinds of activity, such as political candidate support, lobbying
as well as for contract negotiations, contract administration,
and union organizing. It is likely to be very controversial with
the labor unions.
Substance Abuse in the Workplace, Substance abuse has been
estimated to cost employers over $100 billion annually. While
larger firms have begun to implement programs to deal with this
problem, smaller firms have lacked information and resources.
DOL is developing a program to assist such employers by
disseminating state-of-the-art information on workplace substance
abuse and employee assistance programs.
Initiatives for the Soviet Union. DOL is continuing to provide
advice for a private sector initiative in support of development
of the Soviet coal industry. The Department is also working with
the Organization for Economic Cooperation and Development (OECD)
on a possible conference in the Soviet Union on a productive
labor market in a free enterprise economy.
Tamper-Resistant Sampling Cassettes. DOL's Mine Safety and
Health Administration (MSHA) plans to require that dust sampling
cassettes be more tamper-resistant. A prototype has been
developed that is being evaluated by MSHA, the Bureau of Mines,
and the National Institute for Occupational Safety and Health,
and may be available commercially in January 1992.
Mine Safety and Health Four State Initiative. DOL's MSHA is
coordinating state and federal inspections at underground coal
mines employing fewer than 50 miners, in a Joint Mine Assistance
program to reduce serious mining accidents in Kentucky, West
Virginia, Pennsylvania and Virginia, which have 70% of all coal
mining fatalities.
Meatpacking Special Emphasis Program. DOL's Occupational Safety
and Health Administration (OSHA) is undertaking a Special
Emphasis Program (SEP) and issuing enforcement instructions for a
series of comprehensive SEP inspections on ergonomic hazards in
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U.S. Department of Labor
meatpacking plants, identified as a major source of occupational
illness, and resulting in high incidence rates and related
workers' compensation costs. Enforcement actions under this
program are expected to begin before December 1991.
Employment Service Reform. DOL is developing administrative and
legislative options for strengthening the capacity of the public
Employment Service (ES) to meet the future needs of the American
workforce. These options will include the development of ES
performance standards, an improved ES reporting system, increased
technical assistance to the system, and a research and
demonstration program to test new ideas and acquire basic
information on key ES questions.
SIGNIFICANT PROBLEM AREAS
General Aptitude Test Battery (GATB). In 1986, the Department of
Justice took the position that "race-conscious" use of the GATB
resulted in "reverse discrimination.' The GATE, used by 34
States to test job applicants for subsequent referral to
employers, uses a scoring adjustment procedure that adjusts
scores for specific racial and ethnic groups. In July 1990, DOL
proposed discontinuing its use and solicited comments from the
public. Over 1,500 comments were received, many from employers
and local and joint apprenticeship councils who opposed the
proposal. Other groups favored the proposed action. A study by
the National Academy of Sciences did not provide a basis for
resolving the issue. The GATB has received attention in the
national press and in Congress because employers strongly support
the continued use of GATS as a tool for ES job referral. The
Department's final decision, in concert with the Administration,
is imminent.
Executive Life Insurance Company Failure. DOL's Pension and
Welfare Benefits Administration (PWBA) is continuing to work to
resolve annuities issues raised by the failure of Executive Life
the extent of liability of PBGC to annuitants whose insurer
Insurance Company. Key Congressional committees are questioning
cannot make annuity payments. The PBGC's policy is that it does
not guarantee annuities. Further insurance company failures
could place additional pressure on the PBGC and the Department
from our authorizing committees.
Chemical Industry Enforcement Strategy, DOL's Occupational
Safety and Health Administration (OSHA) is developing and
implementing an enforcement strategy for the entire chemical
industry which includes conducting special emphasis enforcement
programs in the petrochemical industry (PETROSEP) and
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U.S. Department of Labor
promulgating a process safety management standard. This strategy
responds to a series of explosions in oil and chemical plants
which included numerous fatalities. Congressional authorizing
committees and the media have shown keen interest in this
strategy and its development.
Asphalt Fumes Permissible Exposure Limits. OSHA is updating
permissible exposure limits for construction, maritime and
agriculture. (See general discussion under "Regulations",
below.) As part of this rulemaking, OSHA is planning to propose
an exposure limit for asphalt fumes. It is also planning to make
a preliminary determination that asphalt fumes are carcinogenic.
The asphalt industry, as represented by the Asphalt Institute,
has become aware of OSHA's activities and is beginning to exert
pressure on the Department. It is likely the asphalt industry
will Congressmen. also raise this issue with the White House, OMB and specific
Review of OSHA State Plans. The Occupational Safety and Health
Administration is currently engaged in a comprehensive review of
state plans for enforcing the OSH Act. This review will include
consideration of North Carolina's state plan. A tragic fire
earlier this month in that state claimed the lives of 25 poultry
workers and recently prompted the AFL-CIO to petition OSHA to
withdraw its approval of the North Carolina plan.
LEGISLATIVE ACTIVITIES
Prevent Enactment of Striker Replacement Legislation. H.R. 5,
so-called "striker replacement" legislation, passed the House as
amended on July 17 by a final vote of 247-182. A slightly
modified Senate companion bill, S. 55, was reported out of the
Senate Labor and Human Resources Committee on June 19. Senate
October. floor action is considered likely in late September or early
Amendments to the Job Training Partnership Act of 1991 (JTPA).
Key elements of the Administration's legislation to amend JTPA,
H.R. 2496 and S. 1404, are to maintain the successful
cornerstones of the current JTPA delivery system; target JTPA on
youth and adults most at-risk of failure in the job market;
achieve a more comprehensive, coordinated human resources
program; enhance program quality; and increase program
accountability. H.R. 3033, the bipartisan JTPA bill approved
unanimously in the House Subcommittee on Employment
Opportunities, is scheduled for markup in the Education and Labor
Committee on September 24. The Senate is presently working on
introduction of a bipartisan bill.
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U.S. Department of Labor
Prevent Enactment of Mandated Parental Leave Legislation,
Mandated parental leave legislation, identical to that which the
101st Congress passed and the President vetoed, has been
introduced in both the House and the Senate. Both House and
Senate leadership have identified mandated parental leave
priority issue. Action is likely in both Congressional chambers as a
this fall.
Support for East European Democracy (SEED) Act, Efforts to amend
the 1989 SEED Act failed at the end of the last Congress.
FY 1991 assistance programs for Eastern Europe are being
undertaken under existing SEED Act authority and authority
provided in conjunction with the FY 1991 Foreign Appropriations
Act. The Congress is once again considering amendments to the
basic authority provided in the 1989 SEED legislation. DOL is
actively participating in the formulation of Administration
policy initiatives. in the area of labor technical assistance and other social
Unemployment Insurance (UI) Reform. Rep. Tom Downey (D-NY) has
stated that he will intensify his efforts to push his UI reform
bill, H.R. 3040, through Congress. This bill would extend
benefits to laid-off workers up to 20 additional weeks based a
three-tier system. Additionally, the Downey bill, as originally on
by either increasing the taxable wage base or by declaring an
introduced, would have allowed the President to pay for the plan
emergency, which would place the bill outside of the pay-as-you-
go constraints of last year's budget agreement. The next
"reform" package will more than likely provide for such an option
proposal. for the President. The Department is opposed to this legislative
North American Free Trade Agreement (NAFTA). Senate floor
consideration of S.Res. 109, Sen. Don Riegle's (D-MI) measure to
allow amendments to a NAFTA in the areas of environmental
standards, labor rights, dispute resolution, rules of origin, and
the remainder of the current Senate session.
adjustment assistance, is deemed possible, but not likely during
Pension Losers Legislation. DOL and the Pension Benefit Guaranty
PBGC paid benefits to individuals who lest pensions before ERISA
Corporation (PBGC) will continue to oppose legislation expanding
was passed in 1974. The legislation is currently attached to the
Older Americans Act, which must be reauthorized by September 30.
Benefits paid under the legislation could cost the PBGC $500
million and violate the budget agreement's pay-go rules. The
bill could also create a precedent of using PBGC funds to bail
deficit. out unrelated constituencies. PBGC currently has a $2 billion
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U.S. Department of Labor
BRISA Preemption. Currently, ERISA preempts any state law that
"relates to" employee benefits (excluding some specific areas of
banking and insurance regulation). This preemption has been
broadly interpreted by the courts. Bills that would limit the
scope of ERISA preemption have been introduced in Congress. Both
House and Senate Labor Committees are expected to mark up
legislation in September, with possible floor action before the
end of this session. The bills include provisions which would
preserve state laws providing compensatory and punitive damages
for unfair denial of insurance benefits (which are provided
through ERISA plans), as well as state laws regulating
apprenticeship programs and prevailing wages. The Department is
currently developing a position on the bills.
Veterans' Reemployment Rights. The Administration proposed a
Veterans' Reemployment Rights bill this year to update the
existing VRR law. The House passed H.R. 1578, Rep. Tim Penny's
(D-MN) VRR bill, on June 26. Penny's bill is strongly supported
by the Administration because it contains the majority of the
Administration's bill. The Senate is expected to consider S.
1095, Sen. Cranston's (D-CA) version of H.R. 1578, in late
on the Cranston bill.
September. The Administration has not yet formalized a position
Davis-Bacon Reform. The last major amendments to the Davis-Bacon
Act were enacted in 1935, when Federal construction contracts
above a $2,000 threshold were made subject to prevailing (union)
wage coverage. There are two major Davis-Bacon reform packages
currently pending: H.R. 1987, introduced by House Labor
Standards Subcommittee Chairman Austin Murphy (D-PA) ; and S.
1689, the companion bill introduced just before the August recess
by Senate Labor and Human Rescurces Chairman Edward Kennedy (D-
MA). We expect to see movement on both bills in the fall.
Glass Ceiling Legislation. Senate Minority Leader Robert Dole
(R-KS) and Rep. Susan Molinari (R-NY) intend to introduce
legislation when Congress reconvenes to study whether the "glass
ceiling" exists. The Secretary of Labor would chair the Glass
Ceiling Commission to be established by the legislation. DOL has
not taken a formal position on the legislation.
POWER Proposal. The Department will continue to testify before
Congress on the need to expand pension coverage through enactment
of a simple small business pension program and simplification of
pension rules. Secretary Martin testified at a Senate Small
Business Committee hearing on September 12. Additional hearings
in the Senate Finance Committee are expected.
OSHA Reform. on August 1, Sen. Edward Kennedy (D-MA) and Rep.
William Ford (D-MI) introduced S. 1622 and H.R. 3160,
respectively. "The Omnibus OSHA Reform Bill" includes provisions
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U.S. Department of Labor
for extending protection under the OSH Act to farmworkers and
Federal employees. Other provisions include allowing employees
to participate in company health and safety committees, allowing
workers the right to refuse dangerous work, and authorizing
workers to challenge penalties for safety and health violations.
Additionally, the legislation would require OSHA to move quickly
on setting new standards for exposure to chemicals and updating
current regulations. Sponsors of the legislation hope also to
extend OSHA's authority to impose fines upon Federal workplaces
which are in violation of health and safety codes. Preliminary
review indicates that the Department will oppose this
legislation, but the Secretary has not made a final decision.
Coal Commission. A hearing on the status of the United Mine
Workers of America (UMWA) health benefits funds is expected in
the Senate Finance Committee this month. The hearing is expected
to focus on the report issued by former Secretary Dole's Coal
Commission, established pursuant to the Pittston Coal Co. strike
settlement. The report suggested that a Federal enterprise ought
to be established and funded through premiums/taxes on the coal
industry to pay for the benefits of "orphans" (individuals whose
earned health benefits are not being paid for by an existing
company). The Department will be coordinating a position with
HHS, Treasury and OMB.
PBGC Legislation. The Department will work with Treasury and
Commerce to review PBGC's proposals to improve pension funding
requirements. This legislation could result in the loss of
substantial revenue and have a major cost impact on large
employers with underfunded pension plans. The provision--but no
means to pay for it--was requested in the President's budget last
year. The Department and the Administration have already
approved legislation--also requested in last year's budget--to
improve PBGC's ability to recover its claims in bankruptcy
proceedings (recoveries against bankrupt companies who have
terminated underfunded pension plans). Legislation to change
funding requirements may be introduced this session.
Child Labor Criminal Penalties. Section 843 (a) and (b) of "The
Violent Crime Act of 1991, proposes to increase criminal
penalties for willful violations of child labor laws when such
violations cause death or serious injury. DOL and OMB are
currently drafting a statement of Administration policy. The
legislation is set for sequential referral.
Immigration Reform and Control Act (IRCA). DOL is preparing for
possible House oversight hearings on the agency's enforcement of
the H-2A Program authorized by IRCA. Under IRCA, employers are
allowed to apply for non-immigrant alien workers to perform
agricultural work of a seasonal or temporary nature. The H-2A
program requires employers to apply for a DOL certification for
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U.S. Department of Labor
services of such workers. Regulatory standards regarding
recruitment of U.S. workers, wages, housing, meals,
transportation and workers' compensation must be met before
certification is granted. Majority staff of the House Education
and Labor Committee issued a July 1991 report on the use of H-2A
workers in the Florida sugar cane industry that documents alleged
inadequacies in the DOL administration and enforcement of the H-
2A program.
Final Rule For The Prevention of Occupational Diseases Caused By
Bloodborne Pathogens. OSHA is finalizing its rule on Bloodborne
Pathogens and expects to have a Federal Register publication date
of December 1991. The extensive and complex record supporting the
rule has resulted in an extended development time for the final
rule. The agency has committed to completing the document by the
deadline. December date and OMB has agreed to expedite a review to meet the
Immigration Act of 1990. Interim final regulations or final
regulations will be published this fall for four programs: D-1
visa crewmembers, H-1B visa specialty occupations, F-1 visa
foreign students, and permanent employment-based immigration. An
advanced notice of proposed rulemaking and a notice of proposed
project will also be published this fall.
rulemaking to implement the labor market information pilot
Disabilities Act of 1990. The Department will continue efforts
to publish the "Americans with Disabilities Act of 1990"
procedural regulations and engage in ongoing interagency
coordination with the Equal Employment Opportunity Commission.
Participant Directed Individual Account Plans (404(c)). On March
13, 1991, DOL published in the Federal Register a reproposed
regulation relating to the circumstances under which a plan
fiduciary is relieved of liability for investment decisions made
by plan participants with respect to their individual accounts.
Register early in 1992.
A final regulation should be ready for publication in the Federal
Final Rule on Formaldehyde. OSHA issued a proposed rule in July.
It is expected that a final rule will be published without the
to by both industry and labor. The proposal reduces the
necessity for a public hearing since the proposal had been agreed
permissible exposure limit (PEL), provides limited medical
removal protection, and revises the labeling and training
requirements. The Administrative Stay of the revised standard
has rule. been extended to cover the time necessary to finalize this
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U.S. Department of Labor
Final Rule on Asbestos (Tremolite, Anthophyllite and Actinolite).
OSHA expects to issue its final rule late this year or in January
1992 on whether to regulate nonasbestiform tremolite,
anthophyllite and actinolite in the same manner as asbestos.
Final Rule on 4,4-Kethylenedianiline. OSHA expects to issue its
final rule in early 1992 on workplace standards for 4,4-
'Methylenedianiline, an animal and potential human carcinogen.
This is OSHA's first final standard resulting from mediated
rulemaking techniques.
Proposed Rule on Lead In Construction. OSHA expects to issue an
NPRM in 1992 that will afford construction workers broad
protection equivalent to those provided in the agency's 1978
standard for general industry. At the same time, OSHA is
updating the permissible exposure limits for air contaminants
(including lead) in the maritime, agricultural, and construction
sectors and expects to have an NPRM early next year. The air
permissible exposure limit for lead from the current 200
contaminants' update for construction will propose lowering the
meter. micrograms per cubic meter of air to 50 micrograms per cubic
Request For Information on Indoor Air Quality. OSHA will issue a
request for information in September on indoor air quality.
Public comment is being solicited on the general health effects
of poor air quality, the effectiveness of ventilation systems,
building maintenance programs currently in use, and the hazards
of specific contaminants such as passive tobacco smoke and radon.
Advance Notice of Proposed Rulemaking (ANPRM) on Ergonomic Safety
and Health Management. OSHA will issue an Advance Notice of its
intention to initiate rulemaking for a comprehensive ergonomics
standard. Owing to the lack of such a standard, OSHA's only
enforcement tool relating to ergonomic hazards is the General
Duty Clause of the Occupational Safety and Health Act, Section
5 (a) (1), which requires employers to provide a place of
employment free from recognized hazards that are causing or are
likely to cause death or serious physical injury. This notice
FY 92.
should be published in the Federal Register in the 2nd quarter of
Process Safety Management Standard. The Clean Air Act Amendments
of 1990 require OSHA to issue a Process Safety Management
standard by November 1991. A report on contract workers in the
petrochemical industry has recently become available and will be
placed into the public record. A Federal Register notice of
reopening the public record to do this and to take public comment
on the contractor worker issue will be published in the last
quarter of FY 91.
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U.S. Department of Labor
OSHA PEL Update for Construction. Maritime and Agriculture. In 1989,
published updated permissible exposure limits (PELs) for
general industry. OSHA is now developing a proposal to update
the is PELs for construction, maritime and agriculture. A proposal
expected to be published in the fall of this year. A
discussion under "Significant Problem Areas", above.
controversial aspect of this rulemaking is asphalt fumes - see
NPRM on the Reporting of Fatalities and Multiple Hospitalization
Accidents. OSHA expects to issue an NPRM in November to modify
the existing regulations for employers to report occupational
fatalities. The proposal would require employers to report
fatalities and multiple hospitalizations within 8 rather than 48
hours of their occurrence. The proposal would also require
employers to report any accident that results in the
hospitalization of three or more workers, thereby replacing the
current threshold of five or more hospitalizations.
NPRM on the Recording and Reporting of Occupational Injuries and
Illnesses. OSHA expects to issue an NPRM in December/January to
propose a comprehensive revision of the injury and illness
regulations, supplementary instructions and forms used by nearly
recordkeeping system. The revision will modify the recordkeeping
750,000 business establishments.
REPORTS or STUDIES
Mexican Free Trade Agreement (NAFTA) Labor Issues. OSHA will
continue working with its Mexican counterparts to finish a
comparison of the occupational safety and health programs of the
U.S. and Mexico. This comparison, part of the two countries'
Action Plan designed to support the development of a Free Trade
Agreement, will examine aspects of the U.S. and Mexican programs.
Bureau of Labor Statistics (BLS) Major Economic Indicators:
September 26. U.S. Import and Export Prices Indexes
October 4.
The Employment Situation
October 11.
Producer Price Index
October 17.
Consumer Price Index
October 24.
U.S. Import and Export Price Indexes
October 29.
Employment Cost Index
November 1.
The Employment Situation
November 13.
Producer Price Index
November 14.
Consumer Price Index
November 27.
U.S. Import and Export Price Indexes
December 6.
The Employment Situation
December 12.
Producer Price Index
December 13.
Consumer Price Index
December 27.
U.S. Import and Export Price Indexes.
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U.S. Department of Labor
Child labor. The Department will undertake a study on child
labor problems in the US and Mexico as part of the work plan
designed Departments. to implement the MOU between the US and Mexican Labor
Coal Mine Respirable Dust. The Coal Mine Respirable Dust Task
Group, established to review the respirable coal mine dust
program as enforced by MSHA, will submit a report in November
1991. The report will focus on the results of the spot
inspections the task group began conducting in July at nearly 600
mines throughout the Nation to determine dust levels, and
evaluate compliance with regulations. This follows the MSHA
investigation that found widespread tampering with respirable
coal dust samples taken by mine operators as part of DOL's
program to protect miners from coal workers' pneumoconiosis.
Blueprint for Action: Building Community Coalitions. This "user-
friendly" publication scheduled for late September 1991, will
serve as at guide to the SCANS skills foundation and competencies,
"What Work Requires of Schools" and as a primer on building
coalitions to help promote the SCANS message.
Workplace Literacy Survey: Meeting the Nation's Needs. The
Department will release a report in October, prepared by the
Educational Testing Service which will profile the workplace
literacy of two major DOL population groups, participants in Job
Training Partnership Act programs and clients of Employment
Service/Unemployment compensation programs. The document will be
patterned after reports produced by the National Assessment of
Educational Progress (NAEP).
Health insurance coverage (COBRA). PWBA will conduct a research
projects to analyze the impact of continuation of health
insurance coverage (COBRA), including identifying which segment
of those eligible have actually elected the coverage and
determining what is known about their actual costs in relation to
the statutory cap on premiums employers may charge. This work
may be important if proposals to expand health coverage with
COBRA-like requirements are seriously considered.
MEETINGS or EVENTS
Mexican Free Trade Agreement (NAFTA). On December 9-10, the U.S.
and Mexico will hold a seminar to analyze hazards in the iron and
steel industry and a discussion of cases in which the incidence
of occupational accidents and illnesses has been successfully
reduced. Secretary Martin will deliver a keynote address.
Bast European Democracy (SEED) Act. From September 8-28, a team
of 10 inspectors from Poland will visit Chicago, Illinois, to
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U.S. Department of Labor
study at the OSHA Training Institute and participate in workplace
inspections with OSHA field personnel. The following month, 10
OSHA safety and health experts will head a tri-partite delegation
to Poland. The focus of the delegation will be primarily to
assist in inspections of typical Polish workplaces under the
Support for East European Democracy (SEED) Act.
Immigration Nursing Relief Advisory Committee. The second
meeting of the Immigration Nursing Relief Advisory Committee will
be held in November of December. This Committee was established
pursuant to the Immigration Nursing Relief Act of 1989 to assist
the Secretary of Labor in carrying out the duties under the Act.
Membership includes representatives of HHS, Justice, hospitals,
labor organizations, and other interested organizations.
Mentoring Conference. DOL will sponsor a national mentoring
conference on October 18, 1991, in Washington, D.C. The
Conference theme is "Mentoring: A Sound Investment in America's
Future". Conference panels will explore the roles of education,
business/labor and public/private human services in volunteer
mentoring activities.
COURT DECISIONS/LITICATION
OCCUPATIONAL SAFETY AND HEALTH ACT
AFL-CIO V. Department of Labor, The case involves numerous
industry groups, as well as the AFL-CIO, in a challenge of the
validity of our generic air contaminants standard, which sets
permissible exposure limits (PELs) for 428 toxic substances.
This case is crucial to OSHA's ability to modify multiple PELs
without conducting substance by substance analyses.
Secretary of Labor V. Caterpillar Tractor Corp. The Occupational
Safety and Health Review Commission is expected to decide soon
whether the Department can cite an employer for multiple
instances of violative conduct where the employer has evidenced
egregious failure to comply with the Act. This issue is crucial
to the Department's policy of assessing large penalties against
the worst offenders.
MINE SAFETY AND HEALTH ACT
Dust cassettes. At issue in these cases is the apparent
intentional removal of respirable coal dust from samples
submitted by companies. These samples are designed to give an
accurate picture of the level of respirable dust in operators'
coal mines. These cases include more than 500 coal mine
operators and more than $6.5 million in proposed civil penalties.
PIP
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U.S. Department of Labor
Also, several related cases are pending in the U.S. Attorney's
office for possible criminal prosecution. In addition to this
litigation, we expect more congressional hearings.
"Walk-around". In Thunder Basin Coal Co. V. Martin, a Federal
district court enjoined the Secretary from enforcing the
Department's regulations regarding the right of miners to choose
individuals to represent them during "walk-around" inspections of
safety and health inspections at mines. The basis of this
decision was that there was a reasonable likelihood that
enforcement of the regulations would conflict with the right of
mine operators under the National Labor Relations Act (NLRA) to
impose certain restrictions on access to the mine by union
representatives. On appeal, we will argue that the district
court did not have jurisdiction to decide whether the Secretary's
regulations conflict with the NLRA, and that the decision should
have been decided in the first instance by the Federal Mine
Safety and Health Review Commission. This case is of major
interest to mine operators facing union organizing efforts.
EMPLOYEE RETIREMENT INCOME SECURITY ACT
Martin V. AFG Industries: Martin V. Pacific Lumber Company;
Martin V, Magnetek) (Annuities Cases). In June and July 1991,
the Department of Labor brought three civil actions against
fiduciaries of pension plans that had purchased group annuity
contracts from Executive Life Insurance Co. to fund benefits for
the plans' participants and beneficiaries. The complaints allege
that the funds violated ERISA by failing to conduct a prudent
selection process under the circumstances. The lawsuits seek to
require the defendants to restore any losses suffered by the
participants or beneficiaries, to guarantee the annuities through
another carrier, and to permanently bar the defendants from
ERISA. serving as fiduciaries or serve providers to any plan governed by
VIETNAM ERA VETERANS' READJUSTMENT ASSISTANCE ACT OF 1974
King V. St. Vincent's Hospital. The Supreme Court granted
certiorari in this case, which presents the issue of whether a
reasonableness standard should be applied to a National Guard
member's request for leave from employment in order to serve full
employee. time in the National Guard. The Government is representing the
FAIR LABOR STANDARDS ACT
Martin V. Burger King Corporation. The Eleventh Circuit in this
case will consider whether the district court erred in dismissing
the Secretary's injunction action against Burger King. The
Secretary brought this action to enjoin the fast food company's
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U.S. Department of Labor
failure to comply with the FLSA's provisions regulating the
employment of 14 and 15-year-old children. Despite evidence of
widespread violations in the company-owned restaurants and a
history of unfulfilled promises of compliance by corporate
officials, the district court dismissed the action as moot upon
the company's implementation of a policy to permanently
discontinue employing anyone under the age of 16.
Public Emplover-Overtime Cases, Pursuant to the Supreme Court's
1985 decision in Garcia V. San Antonio Metropolitan Transit
Authority, the Department has brought suit under the FLSA against
the States of New York, Wyoming, Alabama, and West Virginia,
states. seeking overtime compensation found to be due to employees of the
SERVICE CONTRACT ACT
Service Employees Int'l Union V. Martin. The SEIU in this case
alleges that DOL has improperly failed to periodically adjust the
minimum fringe benefits levels that must be incorporated into
Federal contracts that are governed by the Service Contract Act.
The Department recently completed reviewing minimum fringe
benefit rates and revised the methods by which those rates are
set. The Office of Management and Budget agreed with the
Department's new approach. In addition to raising the
government's service contract costs dramatically, these actions
are expected to make moot the outstanding issues in this lawsuit.
DAVIS-BACON ACT
Building and Construction Trades Department. AFL-CIO V. U.S.
Department of Labor Wage Appeals Board (Midway). In May of this
year, a Federal appeals court issued a decision partially
invalidating a DOL regulation providing for the payment of Davis-
Bacon Act prevailing wages to certain truck drivers who haul
material or supplies to or from the site of a covered Federal
construction project. In the court's view, the Davis-Bacon Act
does not permit coverage of "material delivery truck drivers who
come on to the site of the work merely to drop off construction
materials" from bona fide commercial supply sites. The
government decided against seeking rehearing in the court of
appeals and is considering what actions would be appropriate when
the judicial review process has been concluded.
AIRLINE DEREGULATION ACT
Air Line Pilots Association V. U.S. Department of Labor. A
lawsuit was filed last year in Federal district court challenging
the Department's failure to promulgate regulations to implement
the Airline Employee Protection Program (AEPP) provisions of the
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U.S. Department of Labor
Airline Deregulation Act. We moved to dismiss the suit
the appropriate any funds for the program. On September 11,
premature, one of the bases being the failure of Congress as to
there Department of Transportation issued their determination 1991,
deregulation which would have triggered the payment of benefits.
had been no "qualifying dislocation" as a result of airline that
* * *
PO2
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U.S. Department of
400 Seventh St., S.W.
Transportation
Washington, D.C. 20590
Office of the Secretary
of Transportation
September 13, 1991
MEMORANDUM FOR:
EDE HOLIDAY
ASSISTANT TO THE PRESIDENT
AND SECRETARY OF THE CABINET
FROM:
John Gaughan
Chiek of Staff
SUBJECT:
1991 Fall Issues Assessment
The following report summarizes key issues and activities at
the Department of Transportation for September 15 to
December 31, 1991.
I. HIGHEST PRIORITIES -- SUMMARY LISTING
1. Enact by October 1, 1991, surface transportation
reauthorization legislation consistent with
Administration objectives.
2. Enact the DOT Appropriations Act for FY 1992 and the
Commerce, Justice, and State Appropriations Act which
includes funding for the Maritime Administration.
3. Continue efforts to enhance competition and safety
through the implementation of the Airport Noise and
Capacity Act of 1990 and the Aviation Safety and
Capacity Expansion Act.
4. Continue to resist Congressional attempts to pass
legislation which would call for the reregulation of
aspects of the airline industry.
5. Implement the Aviation Security Improvement Act of 1990.
6. Implement the Oil Pollution Act of 1990.
7. Continue to work toward Senate ratification of the
Montreal Protocols.
8. Continue efforts to support the National "70% by 1992"
Safety Belt Program.
9. Press forward in our efforts to broaden aviation
agreements with Canada, Germany, Mexico, and the United
Kingdom.
10. Adopt further regulations governing the transportation
of hazardous materials.
11. Win confirmation of Arthur J. Rothkopf as General
Counsel of DOT.
12. Coordinate with EPA on regulations which implement the
Clean Air Act Amendments of 1990.
13. Establish a strategic planning process within the
Department and update and implement the National
Transportation Policy.
14. Obtain authorization and appropriations to enable the
Department to build a new headquarters building.
II. SURVEY OF KEY ISSUES
SECRETARIAL ACTIVITIES
September -- The Secretary is likely to announce the third
military airport for conversion to civilian use.
September 19 -- Presidential surface bill event in Los
Angeles.
November 20 -- The Secretary is scheduled to speak at the
World Railways Congress.
INITIATIVES AND POLICIES UNDER DEVELOPMENT
Airline Competition. The Secretary will continue to
concentrate on a variety of initiatives to preserve and
enhance competition in the airline industry. These
initiatives include airport capacity expansion, slot and
gate access, increased foreign investment, streamlined route
award procedures, International Air Transport Association
rate-making reform, computer reservation system (CRS) rules
review, and international aviation liberalization.
The Department will decide whether to approve the joint
application of Delta Air Lines and Pan American World
Airways to transfer the bulk of Pan American's transatlantic
routes to Delta and whether Delta's intention of taking an
2
equity position in Pan Am would result in the effective
transfer to Delta of Pan Am's Latin American authority.
Aircraft Noise and Capacity Issues. The Airport Noise and
Capacity Act signed into law November 5, 1990 requires the
Department to issue rules related to the establishment of
passenger facility charges (PFCs), phase-out of Stage 2
(noisier) aircraft, and procedures for airports to restrict
operation of noisier aircraft by December 31, 1999.
The FAA issued its final rule on PFCs in May and airports
already have begun the process to gain FAA approval to
collect the fees. The charges will provide an estimated $1
billion annually for the Nation's top 50 airports in
non-federal funds for airport expansion.
The Department has prepared two aviation noise and capacity
final rules that are awaiting OMB clearance. The rules
concerning local noise restrictions must be promulgated
before airports can begin collecting PFCs. Another
condition of PFC collection is the initiation of rulemaking
to make "slots" at some of the busiest airports available to
new airlines. The Department issued an NPRM on September 9,
1991.
Americans With Disabilities Act of 1990. The Department
issued a final rule September 6, 1991, implementing the
accessibility requirements of the ADA, including standards
for accessible public and private passenger vehicles and
requirements for complementary paratransit services. The
rule also includes provisions for public transportation
providers to seek undue financial burden waivers. Waivers
will be decided on a case-by-case basis.
In addition to DOT, the Department of Justice, the Equal
Employment Opportunity Commission and the Architectural and
Transportation Barriers Compliance Board (ATBCB) have issued
rules to implement ADA regulations and standards. The
ATBCB's guidelines for accessible vehicles and
transportation facilities have been incorporated in DOT's
rule. The Department has worked and will continue to work
with these agencies to ensure that public and private
entities comply with the ADA requirements and that
appropriate enforcement mechanisms are in place.
Tort Reform: General Aviation Products Liability. We have
begun discussions with aircraft manufacturers and users to
aid us in our support of legislative initiatives to achieve
aviation products liability reform.
Aviation Security. Efforts to implement the Aviation
Security Improvement Act of 1990 are continuing. One new
rule will be proposed during the fall of 1991. This rule
would require airlines to comply with a passenger
3
information collection requirement for international
flights. The Department is also continuing to work with the
Department of State on assignment of additional-FAA civil
aviation security and safety personnel overseas.
Working with the Departments of State, Justice and Treasury,
the Department is developing recommendations to Congress on
whether legislation should be enacted to provide monetary
and tax relief to victims of terrorism. A position is
expected by November 1991.
The FAA's Office of Civil Aviation Security has completed
its selection of the Federal Security Managers (FSM) to be
stationed at each of the Category X airports (the 18 major
domestic airports) in the United States. On October 6,
after a two week training program developed specifically for
the FSMs, they will assume their duties to monitor airport
security.
FAA expects to issue, during the final quarter of CY 1991, a
set of testing procedures for certification of automated
explosive detection systems (EDS) designed to detect bulk
explosives. This will allow vendors to submit commercial
EDS system designs to FAA for test and evaluation, leading
to certification of individual designs. Once certified,
systems can be purchased and used by air carriers. FAA is
continuing to work with selected airports to install test
EDS units.
Maritime Reform. By yearend, the Department expects to have
prepared a policy statement on the future of operating
assistance for the U.S. merchant marine. Contracts under
the current program begin to expire in significant numbers
over the next several years. It is important for U.S.-flag
carriers to know what kind of investment environment they
will operate in when their contracts expire.
The Advisory Commission on Conferences in Ocean Shipping
will continue its deliberations on the future structure of
regulation of the ocean shipping industry, to include issues
relating to antitrust immunity for conferences, principles
of common carriage, and tariff filing and enforcement.
Secretary Skinner chairs the Advisory Commission; Deputy
Secretary Chao is vice-chairman and has overseen the day-to-
day operations of the Commission. Public hearings will
conclude in September; a draft report should be prepared by
December 31, 1991.
The Clean Air Act Amendments. The Clean Air Act Amendments
of 1990 require the EPA, with the concurrence of the
Department, to promulgate a regulation by November 15, 1991,
which assures that federal transportation plans, programs,
and projects conform to the attainment requirements of the
Clean Air Act. In the event EPA and DOT miss the deadline,
4
lawsuits may force action. Because this regulation will
have a major impact on federal transportation investments in
most urban areas, the time frame is very short, and the
potential for a lawsuit is high. The Department is working
closely and intensively with the EPA to comply with this
major new requirement and assure that needed transportation
services are maintained.
Commercial Driver's Licensing. Major efforts are presently
underway within the Federal Highway Administration to
implement fully the requirements of the Commercial Motor
Vehicle Safety Act of 1986 by the April 1, 1992, deadline.
As of August 30, 39 states are issuing Commercial Driver's
Licenses (CDL's). All the 51 jurisdictions have the CDL
legislation in place, are doing knowledge testing, and have
entered into a contract with American Association of Motor
Vehicle Administrators' network to be brought on-line with
the Commercial Driver's License Information System
connection. The skills testing requirements are being
completed by 50 of the 51 jurisdictions. Blood Alcohol
Content enforcement is currently in effect in 26 states. On
September 11-12, a National CDL Coordinators Conference was
held in Phoenix, AZ, to plan the strategies necessary to
ensure that all jurisdictions will be in the position of
having tested and licensed each driver desiring a CDL by the
April 1992 deadline.
Foreign Ownership and Investment in U.S. Domestic
Transportation Industries. Proposed legislation addressing
foreign ownership and investment, discussions of maritime
reform including ownership/investment restrictions, and the
need for capital in these industries have prompted the
Department to initiate a thorough look at foreign ownership
and investment in the U.S. transportation industry.
Recently, the Secretary announced the Administration's
support for legislation that would increase the ceiling on
voting stock owned by foreigners to forty-nine percent.
Foreign investment in domestic transportation is seen as a
vital financial tool that can (1) provide a new source of
capital to struggling industries, (2) open avenues to new
technology, and (3) better link our domestic industries to
the global marketplace. The issue is highly complex. It is
influenced, in part, by international air, maritime, and
related trade agreements, and it frequently revolves around
the principle of reciprocity--allowing access in exchange
for rights we have been granted by another country. The
Treasury, Commerce, and Defense Departments, and the U.S.
Trade Representative have policies and provisions which
support or restrict foreign ownership of and investment in
U.S. industries.
Runway Incursion. FAA has published the runway incursion
plan to prevent unauthorized incursion on the active runway
5
by aircraft, vehicles, persons, etc. A four-phase program
is now underway, with the first phase being tested and
demonstrated at selected airports. The second phase, now in
the contract stage, will buy and test low cost alternatives
to detect incursions, such as bar codes and magnetic
sensors. The third and fourth phases will research and
develop systems that will better identify incursion targets
and provide automated data links warning pilots of potential
runway incursions.
New DOT Headquarters Building. The President's FY 1992
Budget includes $542 million in the GSA and DOT budgets to
finance the construction of a new DOT headquarters building.
We are working with GSA to achieve Congressional approval of
the prospectus for the new building at the Union Station
site as well as appropriations for the necessary funds to
begin work.
LEGISLATIVE ACTIVITIES
Surface Transportation Reauthorization Legislation. The
Department is redoubling its efforts to obtain passage of
surface transportation legislation based on the following
principles: (1) a five year authorization, (2) no tax
increase, (3) adequate funding for the National Highway
System, and (4) leverage of additional State and local
funds. The Administration's bill, the "Surface
Transportation Assistance Act of 1991, has been introduced
as S. 610 and H.R. 1351. Our proposal is a comprehensive
restructuring of the Department's highway, highway safety
and transit programs with authorizations provided through FY
1996. The current authorizations for these programs expire
at the end of FY 1991.
The Senate has passed its own reauthorization proposal, the
"Surface Transportation Efficiency Act of 1991" (S. 1204).
The Administration has objected to the Senate bill,
primarily because of its failure to provide adequate funds
for the National Highway System, and to increase the State
and local matching shares for the highway and transit
programs. The Administration has signaled that the
President's senior advisors would recommend that he veto
S. 1204 if these concerns are not addressed.
The House Public Works and Transportation Committee and the
Ways and Means Committee reported their bill, the
"Intermodal Surface Transportation Infrastructure Act of
1991" (H.R. 2950). This bill would increase the gasoline
tax by 5 cents per gallon to fund a major expansion of
Federal involvement in, and funding for, surface
transportation programs. The President has written to House
leaders indicating that he would veto surface transportation
6
legislation presented to him with this tax increase. We
have also advised the House of other serious objections we
have to the bill.
We will continue to work closely with key House and Senate
members to try to pass an acceptable bill. We are also
reviewing the impacts on DOT programs if passage of an
acceptable bill is delayed. The next Congressional action
is expected to occur in the House; however, that bill
appears to be delayed by the controversy over the 5 cent per
gallon gasoline tax.
Omnibus Transportation Employee Testing Act. The Urban Mass
Transportation Administration (UMTA) is the only DOT modal
agency without anti-substance abuse regulations mandating
its grantees to drug and alcohol test their safety sensitive
employees. Under the Omnibus Act, UMTA would be covered;
thus, we will work to insure its inclusion in the new
surface bill. (It is currently included in the Senate
version, but not in that of the House.)
FY 1992 Department of Transportation Appropriations Bills.
The House-passed appropriations bill is within the 602
allocations set forth by the Appropriations Committee. The
date for the Senate subcommittee markup is September 13, but
Conference with the House is unlikely to occur before the
end of September, thus requiring a one-month continuing
resolution. Senator D' Amato offered the Hollings-Danforth
Alcohol and Drug Testing and Rehabilitation Legislation
(narrowed to the transit industry) to the Appropriations
Bill on September 12. It also includes $4 million for
operation of the Presidential Task Force on the
Trans-Alaskan Pipeline System. The Task Force has not been
established. Also of concern, the Senate Commerce, Justice,
and State Appropriations Bill for FY 1992 includes a "Buy
America" type restriction affecting the repair and
acquisition of Ready Reserve Force vessels.
Aviation Reauthorization. The Federal Aviation
Administration's programs to modernize the air traffic
control system, operate the system, provide grants to
airports and perform research must be reauthorized by the
end of FY 1992. The Department is developing a proposal
that will be sent to OMB in the fall.
Aviation Industry. Several aviation bills have been
introduced which propose new economic regulation of the
industry. We anticipate that the bills will be pursued by
the aviation subcommittees, and Department witnesses will
testify in opposition. The Department has already objected
to various House Aviation Subcommittee bills as unnecessary
and unwise reintroduction of economic regulation. The
Department will continue to make the case that airline
deregulation has worked well, and programs and policies in
7
place and under development are designed to maintain and
enhance competition in the airline industry.
Most of the aviation legislation is focused on the "major
carrier concentration" issue, with almost no safety
activity, although a veto threat has been issued on H.R. 14,
a bill that would regulate flight attendant duty time. This
bill has passed the House, but not by a veto-proof margin.
H.R. 2074 calls for intrusive regulation of computer
reservations systems (CRSs), sale of slots, gates and
international routes, and foreign investment in domestic air
carriers. H.R. 2037 would regulate in some of these areas
and vastly expand regulation of consumer issues, such as
lost luggage. S. 1628 would force divestiture of CRS
systems by airlines, repeal the slot "buy-sell" rule,
restrict transfer of international routes, place
restrictions on foreign investment in U.S. carriers, and
guarantee the outstanding tickets of bankrupt carriers.
Federal Employers' Liability Act (FELA). The Department has
prepared legislation to repeal the Federal Employers'
Liability Act (the tort-based injury compensation system for
railroad employees) and place the railroad industry under
the individual State workers' compensation programs. The
Department expects to submit the legislative package to
Congress shortly. The FELA repeal legislation was
submitted at the end of the 101st Congress.
CAFE Standards. Because of safety concerns, the Department
continues to oppose Congressional efforts to increase the
corporate average fuel economy (CAFE) standards. The
National Academy of Sciences' study to assess how available
technology could meet energy, environmental and safety
requirements concurrently will enable the debate on
increasing the CAFE standards to consider the full range of
options. The study is due to the Department by the end of
the year.
Montreal Protocols. The Protocols, which establish strict
liability in cases of death or injury occurring on
international flights and substantially increase (to
$130,000) the liability limits of the underlying Warsaw
Convention, have been favorably reported from the Senate
Foreign Relations Committee. The Department will continue
to press for ratification of this multilateral agreement
because adoption of these Protocols would improve
significantly the current regime for air carrier liability.
Metropolitan Washington Airports. A recent Supreme Court
decision invalidated a Congressional Board of Review that
supervised important activities of the Metropolitan
Washington Airports Authority (Washington National and
Dulles Airports). Until legislative action is taken, the
Authority cannot undertake important new projects. While
8
the Administration has taken no position on the corrective
legislation, it does have a stake in the legislative veto
aspects of any new Congressional action. As a practical
matter, the Department believes it is important that these
Federally owned facilities continue to be managed and
developed locally.
Deregulation of Interstate Trucking. The Secretary will
again submit proposed legislation to eliminate remaining
economic regulation of interstate motor carriers and to
sunset the Interstate Commerce Commission and transfer its
rail functions to the Departments of Transportation and
Justice.
REGULATIONS/EXECUTIVE ORDERS
Oil Pollution Act (OPA) OF 1990. This Act directs the
President to carry out functions specified in the
legislation. Since this Act primarily concerns the marine
environment, the USCG is the agency most affected by the
Act's provisions.
Accordingly, the USCG and EPA prepared an Executive Order,
which is still awaiting OMB clearance, delegating the
President's authority under OPA to the Coast Guard and other
appropriate federal agencies. Significant aspects of the
Act include: liability compensation and financial
responsibility relating to oil pollution costs and damages,
including removal cost financing; measures to enhance the
prevention of oil pollution (e.g., double hulls) and systems
to improve preparedness; and expansion of enforcement
authority, including increases in the maximum penalties. An
interim regulation is being developed concerning the
presentation, filing, processing, settlement and
adjudication of claims against the Trust Fund under OPA.
Coast Guard NPRM on Certificates of Financial
Responsibility. By the first week of October 1991, it is
expected that the Coast Guard will release its NPRM on
Certificates of Financial Responsibility (COFR) for
international shipping. The rulemaking is in response to
requirements of the Oil Pollution Act (OPA) of 1990, and
there is little room for discretion by the Coast Guard in
the NPRM's content. The new COFR requirements include
higher insurance levels and continue existing statutory
guarantor arrangements to cover clean-up from oil spills,
environmental damage, and other costs. The international
group of Protection & Indemnity Associations, P&I Clubs
(i.e., international shipowners who band together to
mutually indemnify each other, and handle most ocean
shipping insurance), have asserted that they will refuse to
issue insurance guarantees when the new Coast Guard
requirements go into effect, because of their higher
9
exposure and OPA's failure to adopt an international
liability regime known as the 1984 Protocols. The
publication of the NPRM may precipitate the issue and
generate predictions of dire consequences among shipping
interests.
Coast Guard User Fees. The Omnibus Budget Reconciliation
Act of 1990 and the Coast Guard's implementing regulations
require the Secretary of Transportation to establish a
recreational boat user fee that would be collected annually
in fiscal years 1991-95. The Senate Coast Guard
authorization bill (S. 1297) was amended to include a repeal
of the user fee. The House highway bill (H.R. 1351) was
also amended to repeal user fees, apparently with valid
offsetting revenues. A class action suit (Boat U.S. V.
United States) has been filed challenging both the statute
and the implementing regulations. The suit alleges the fee
is really a tax.
Railroad User Fees. The Department is proceeding to issue
an interim final rule to collect fees to cover the costs of
the Federal railroad safety program specified in the Federal
Railroad Act of 1970 for FY 1991. We expect the rule to be
issued prior to the end of September. A new rulemaking will
be initiated in FY 1992 for development of a follow-on fee
collection mechanism.
Computer Reservations Systems. The Department's rules
governing airline-owned computer reservations systems (CRSs)
will expire on November 30, 1991. On March 26, 1991, the
Department issued a notice proposing to readopt the rules
with some changes to limit the CRS owners' ability to
operate the systems in ways that may prejudice the position
of their airline competitors. The Department is now
reviewing the comments filed in response to that notice to
determine what rules should be adopted.
Phase-out of Stage 2 Aircraft. The Aviation Noise and
Capacity Expansion Act of 1990 requires the elimination of
noisier "Stage 2" aircraft by December 31, 1999, and directs
the Secretary to establish a schedule for the phase-out of
these aircraft. The Act required that a final rule be
issued by July 1, 1991. The final rule is awaiting OMB
clearance.
Limitation on Locally Imposed Noise or Access Restrictions
on Stage 2 and Stage 3 Aircraft. The Aviation Noise and
Capacity Expansion Act of 1990 limits noise and access
restrictions by local airport operators on the operation of
Stage 2 and Stage 3 aircraft. A final rule implementing
these restrictions is awaiting OMB clearance.
Alcohol Impairment Prevention Program. The Department is
exploring the need to adopt additional regulations or
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programs to respond to the hazards of alcohol impairment in
transportation industries. The Department has analyzed more
than 200 comments, representing a broad variety of
viewpoints, filed in response to a November 1989 advance
notice of proposed rulemaking on the subject (ANPRM). The
Department is considering issuing a notice of proposed
rulemaking (NPRM) that, among other things, would propose
alcohol testing in transportation industries. In addition,
the Department is working with the Office of Management and
Budget and other Federal agencies on a task force examining
the need to take similar steps for alcohol impairment for
federal employees and contractors, as well as for regulated
industries.
Hazardous Materials Registration and Fee Assessment. The
Department is preparing to send to OMB an NPRM concerning
the mandatory assessment of an annual registration fee for
hazardous materials shippers and carriers, and, with some
exceptions, packaging manufacturers. Fees could range from
$300 to $5,050 (including $50 processing fee) per
registrant. The fee would be used to fund a nationwide
emergency response training and planning grant program.
Passenger Manifest Information. The Aviation Security
Improvement Act of 1990 requires the Department to issue
regulations requiring airlines to collect additional
information from U.S. citizen passengers traveling to or
from the United States. The information is to be made
available to the State Department in the event of an
aviation disaster, and would be used to assist in contacting
victims' next of kin. The Department will issue an NPRM
shortly, which will give the airlines maximum flexibility to
meet the additional manifest information requirements in the
most cost-effective manner. Foreign airlines carrying U.S.
citizens to or from the United States would also be required
to comply.
Commercial Space User Fees. The Department published a
final rule establishing user fees for commercial launch
companies, to go into effect on September 18, 1991.
Companies that carry out commercial space launches are
licensed by the Department's Office of Commercial Space
Transportation. The user fees are designed to recover part
of the Department's costs for issuing these licenses, which
include costs for assessing the safety of the proposed
launch.
REPORTS/STUDIES
Shipping Advisory Commission. On April 10, 1991, the
Advisory Commission on Conferences in Ocean Shipping
commenced a year-long study of the impact of the 1984
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Shipping Act. As part of its fact-finding effort, the
Commission has been holding field hearings, with the next
hearing scheduled for New York. The Commission is to issue
its report and recommendations by April 10, 1992.
Maglev and High Speed Rail Technology. As part of the
national Maglev initiative, the Department recently awarded
research contracts to explore innovative approaches to
resolving performance issues and determine areas where U.S.
expertise in science and engineering can lead to major
advancements in Maglev technology.
Compensation for Victims of Terrorism. The Department will
be preparing a report and recommendations to the President
and the Congress on whether the U.S. Government should
compensate victims of terrorism. The report is called for
in the Aviation Security Improvement Act of 1990. Other
agencies participating in analysis of the issues and in
preparation of the report and recommendations include the
Departments of State, Treasury, Defense, and Justice; other
agencies will be asked to participate as needed. The target
date for circulating the report within the Administration is
the end of October; the deadline for submission of the
report and recommendations is the end of November 1991.
Boston to New York Rail Corridor Improvements. The
Department is completing a study of potential physical
improvements to the Northeast Corridor between Boston and
New York to aid the private sector, state and local
governments, and the federal government in making investment
decisions.
Lessons Learned From Desert Shield/Storm. The Department is
working with the Department of Defense in reviewing the
performance of the Ready Reserve Force (RRF) during
Operation Desert Shield/Storm to determine ways to improve
the effectiveness of the RRF during war or other national
emergencies. A report addressing improvements needed to the
fleet, including the size and composition of the fleet and
operational and maintenance requirements, will be completed
in the near future. We expect the Department's FY 1993
budget request to OMB to reflect the changes recommended by
the report.
Study of Love Field, Dallas, Texas. The DOT expects to have
a draft final report by September of its study of the
potential operational, economic, and environmental impacts
of repealing or modifying current legislative restrictions
on air carrier flights to and from Dallas' Love Field. The
draft will be reviewed to ensure that it does not
inappropriately influence related litigation that has been
brought against DOT. This study will assist the Department
in developing its position on this issue. A Department
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representative will testify before the House Subcommittee on
Aviation on September 24, 1991.
Aviation War-Risk Insurance. Authority for the Government
to issue war-risk insurance, which was critical to the
success of airlift support for Operation Desert Storm,
expires in September 1992. The FAA has undertaken a study
of the law, Title XIII of the Federal Aviation Act, in
coordination with the Departments of State and Defense and
other interested agencies. The report, originally due to
OMB in July 1991, has been delayed pending resolution of a
number of issues with DOD, such as whether FAA should insure
the domestic leg of a trip. The report will recommend
renewal of the program, and continued administration by the
FAA.
New San Diego Airport. A local, binational working group
headed by the City of San Diego has been established to
address plans for a new airport to be located near the
United States/Mexico border. FAA has funded three planning
grants under the Airport Improvement Program to review site
alternatives. A master planning effort, sponsored by the
city, is now underway and will be accomplished in phases
over the next several months.
NEGOTIATIONS
North American Free Trade Agreement. The Department is
chairing the land transportation negotiations that are part
of the North America Free Trade Agreement. The principal
objective is to achieve greater access to the Mexican market
for U.S. truck, bus, and railroad operators. Negotiations
will take place over the fall in Mexico City, Ottawa, and
Washington. Projected completion date for the substance of
the land transportation negotiations is December 31, 1991.
Shipbuilding Subsidies. The Department is participating in
negotiations in the Organization for Economic Cooperation
and Development (OECD) to eliminate subsidies and other
support governments give to shipbuilders. Other agencies
participating in the discussions include USTR, Commerce, and
State. It is expected that the negotiations, which have
been underway for nearly two years, will either terminate
successfully or break off this fall.
Major Aviation Bilateral Liberalization Talks: Canada,
Germany, Mexico, and the United Kingdom. The Secretary has
launched major initiatives to liberalize important bilateral
aviation relationships. This fall, representatives from DOT
(and State) will meet separately with their British, German
and Canadian counterparts to advance this process. The U.K.
and Germany talks will frame the issues and develop
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procedures for the negotiations, while those with Canada,
begun earlier, will advance to exchanging specific proposals
and defining areas of agreement. Representatives from DOT
and State also will begin talks with Mexico with the
objective of formalizing the liberal civil aviation
environment that now exists between our two countries.
Bilateral Air Worthiness Agreements (BAA) with the People's
Republic of China (PRC) and the U.S.S.R. An exchange of
diplomatic notes between the United States and the PRC is
expected in mid-September to effect a limited United States/
PRC BAA. The limited BAA will permit the PRC to assist the
FAA with the production surveillance activities of the
McDonnell Douglas MD-80 series being built at the Shanghai
Aviation Industrial Corporation, Shanghai, China.
Based on the U.S. government policy decision to explore
Soviet technical readiness for a BAA, the FAA plans to send
(in mid-September or October) nine special discipline
technical teams to begin in-depth technical assessment for a
possible BAA. The technical assessment of the Soviet
aircraft certification system is expected to take 4-5 years
to complete.
MEETINGS/EVENTS
Greater Utilization of the St. Lawrence Seaway. At sites in
Brazil and Argentina, November 15-23, 1991, the
Administrator of the St. Lawrence Seaway Development
Corporation will lead a U.S./Canada trade mission to promote
enhanced Seaway utilization with current and new business
partners. Trade mission participants include Great Lakes/
St. Lawrence Seaway maritime community leaders representing
ports, vessel operators, longshoremen, an agricultural
products association and a major coal shipper.
National Drunk and Drugged Driving Awareness Week
(3-D Week), December 7-13, 1991. An annual observance to
promote non-impaired driving, the program is timed in close
proximity to several holidays when drunk driving and traffic
fatalities typically increase. As in previous years, we
will be requesting a Presidential Proclamation.
COURT DECISIONS/LITIGATION
Exxon Valdez Oil Spill. On March 12, 1991, Exxon, the State
of Alaska, and the United States entered into a proposed
settlement of Exxon's potential liability to the respective
governments for natural resources damages and additional
cleanup expenses resulting from the Exxon Valdez oil spill.
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Under the terms of the settlement, Exxon agreed to plead
guilty to various criminal charges and pay a $100 million
fine, as well as $900 million in settlement of civil claims
by both governments. A Federal district court, however,
refused to accept the criminal plea. Moreover, the State of
Alaska, after rejection of the settlement by its
legislature, decided to withdraw from the agreement and so,
too, has Exxon. As a result, both the criminal and civil
litigation are expected to go forward in federal district
court (Alaska), a process likely to consume several years.
Recent discussions between the State of Alaska and the
Federal Government have resulted in a settlement agreement
regarding the joint management and disposition of any
natural resource damages recovered from Exxon. The
possibility of broader settlement discussions is also being
explored.
The Coast Guard, as the Federal on-scene coordinator,
continues its supervisory role over cleanup activities
performed by Exxon. Also, the extensive delegations of new
federal authorities to prevent and clean up oil spills are
now on their way to the President in the form of a new
Executive Order.
Pan American 103 Disaster. This suit arises out of the in-
flight bombing of Pan Am Flight 103 over Lockerbie, Scotland
on December 21, 1988. The plaintiff's target defendant is
Pan Am, but the United States has been named as a third
party defendant. Pan Am's claim against the FAA revolves
primarily around the suggestion that the FAA had verbally
waived certain of its security requirements and that the FAA
was involved with other government agencies in covert
operations which intentionally circumvented Pan Am's
security procedures. This case is pending in the District
Court for the Eastern District of New York. It is presently
set for trial in January 1992.
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