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Antitrust - General
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1562813
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Antitrust - General
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The original documents are located in Box 2, folder "Antitrust - General" of the John Marsh Files at the Gerald R. Ford Presidential Library. Copyright Notice The copyright law of the United States (Title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United States of America his copyrights in all of his unpublished writings in National Archives collections. Works prepared by U.S. Government employees as part of their official duties are in the public domain. The copyrights to materials written by other individuals or organizations are presumed to remain with them. If you think any of the information displayed in the PDF is subject to a valid copyright claim, please contact the Gerald R. Ford Presidential Library. Digitized from Box 2 of The John Marsh Files at the Gerald R. Ford Presidential Library THE WHITE HOUSE WASHINGTON May 1, 1976 MEMORANDUM TO: THE PRESIDENT FROM: ED SCHMULTS Das SUBJECT: Your meeting with John Rhodes today Jack Marsh advises that John Rhodes may wish to discuss the pending antitrust bills at your 9:30 meeting today. On April 29 I called on Mr. Rhodes to seek his views about the various antitrust bills pending in Congress. He seemed to be familiar with only the parens patriae legislation, which the House has passed. Mr. Rhodes continues to believe that this legislation should be vetoed, and is doubtful that it can be modified in any acceptable way. Attached is a copy of your letter to Rhodes on parens patriae. A subcommittee of the House Judiciary Committee has voted out unanimously the Civil Process Act Amendments which will be taken up by the full committee in three weeks. This bill is very close to the Administration's proposal, which you asked Chairman Rodino to act on in a recent letter. The Senate Omnibus antitrust legislation has been marked up by the full Judiciary Committee, and Senators Hart and Scott have asked the Administration to enter into negotiations with a view to obtain a mutually acceptable bill. We have scheduled a meeting with you on May 4 to discuss the pending antitrust legislation. In view of that meeting I recommend that you not commit yourself, one way or another, to Congressman Rhodes. FORD is LIBRARY GERALD Office of the Unite llouse Press Secretary THE WHITE HOUSE TEXT OF 1 LETTER BY THE PRESIDENT TO REPRESENTATIVE JOHN J. RHODES March 17, 1976 Dear John: As I outlined to you on Tuesday, March 16, I support vigorous antitrust enforcement, but I have serious reservations concerning the parens patriae concept set forth in the present version of H.R. 8532. I question whether federal legislation is desirable which authorizes a state attorney general to sue on behalf of the state's citizens to recover treble damages that result from violations of the federal antitrust laws. The states have the ability to amend their own antitrust laws to authorize parens patriae suits in their own courts. If a state legislature, acting for its own citizens, is not convinced the parens patrice concept is sound policy, the Administration questions whether the Congress should bypass the state legislatures and provide state attorneys general with access to the federal courts to enforce it. In addition to ny reservations about the principle of parens patriae, I are concerned about some specific provisions of the legislation developed by the House Judiciary Committee. The present bill is too broad in its reach and should be narrowed to price fixing violations. This would concentrate the enforcement on the most important anti- trust violations. In addition, the Administration is opposed to mandatory treble damage awards in parens patriae suits, preferring instead a provision which would limit awards only to the damages that actually result from the violation. The view that federal penalties were inadequate, which has been used to justify mandatory treble damages in the past, is no longer justifiable given the substantial increases in these penalties in recent years. The Administration opposes extension of the statistical aggregation of damages, beyond parens patriae legislation, to private class action suits because this is outside of the appropriate reach of this legislation. Finally, the Administration prefers discretionary rather than mandatory award of attorney's fees, leaving such awards to the discretion of the courts. During the last two years, the Administration has sought to improve federal enforcement efforts in the antitrust area and the resources devoted to antitrust enforcement have increased substantially. In December 1974, I signed the Antitrust Penalties and Procedures Act which increased maximum penalties from $50,000 to $1 Billion for corporations and $100,000 for individuals. As I indicated above, I support vigorous antitrust enforcement, but I do not believe H.R. 8532 is a responsible way to enforce federal antitrust laws. Sincerely, & FORD /s/ Gerald R. Ford RALD The Honorable John J. Rhodes LIBRARY Minority Lender House of Representatives Washington, D.C. 20515 THE WHITE HOUSE WASHINGTON August 4, 1976 MEMORANDUM FOR: ED SCHMULTS FROM: Yesterday during the Congressional Dennis Taylor, JACK MARSH Jul Congressman John Rhodes' Legislative Assistant, brought to my attention the plan that is being discussed in the House concerning anti-trust legislation. Dennis says the present proposal is to lump in one package the three anti-trust measures passed by the House and send them as one bill to the Senate, and the purpose of his con- versation was to inquire as to what would be the Administra- tion's position on parens patriae which is one of the pro- visions. I indicated to Dennis that I felt the President's view on parens patriae had not significantly changed and before they proceed too far, there should be some further discussions and conferences. I think it would be very helpful if you could touch base with Dennis Taylor and mention this matter to him. His telephone number is 225-0608. Max and I will be glad to meet with you and go over this some- time when you would like. Many thanks. CC: Max Friedersdorf FORD is LIBRARY GERALD AUG 1 0 1976 THE WHITE HOUSE WASHINGTON August 10, 1976 MEMORANDUM FOR: LARRY SPEAKES FROM: KEN LAZARUS th Jack Marsh asked our office to provide you with some guidance in fashioning a response to inquiries arising from the news reports of an antitrust investigation of the auto manufacturers (see Tab A). Attached (at Tab B) is some background information on the subject provided by the Antitrust Division of the Department of Justice. The Department recommends that any questions which are received on this matter be referred to them for response. However, I have been apprised of the fact that all of this information is already a matter of public record. cy to Schmults do Attachments cc: Phil Buchen Jack Marsh FORD i LIBRARY GERALD TAB A 6817 BALD P. FORD Ken THE WHITE HOUSE WASHINGTON August 5, 1976 MEMORANDUM FOR: PHIL BUCHEN FROM: As you are aware, that there will JACK there MARSH Jane be an anti-trust investigation of the auto manufacturers. This is more fully reported on in today's New York Times. It is not unlikely that we are going to get some questions on this as to the President's view and position. Parti- cularly, Ron Nessen can expect these inquiries. I think it would be helpful if we could develop some guidance for Ron as to how to respond. It may be that he will want to refer the questions to Justice. Many thanks. & FORD RALD ANTITRUST STUDY ANTITRUST STUDY ON CARS PLANNED ON CARS PLANNED N.Y Times 8/4/76 Continued From Page 1, Col. 7 Move by F.T.C. and Justice the manufacture and distribu- Department is Deplored by tion of automobiles." General Motors and Ford "Among the matters to be investigated are pricing poli- cies, scale economics, vertical By The Associated Prese integration, and automobile WASHINGTON, Aug. 3-An distribution practices," the antitrust investigation of the terse statement added. nation's automobile makers The announcement said that was approved today by the "the existence of an investiga- Federal Trade Commission and tion does not imply that viola- the Justice Department. tions of law have occurred." The General Motors Corpo- Staff proposals for antitrust ration, which controls more activity against the auto indus- than half the United States try have been in existence for years in both. the commission market. was considered to ise and the Justice Department. the prime target, though the The Justice Department was other companies might also be on the verge of filing a suit drawn into a legal attack against General Motors in 1968, Thomas A. Murphy, G.M.'s but dropped the matter for lack chairman, said that he expect- of support from the incoming Administration of President ed to be able to show that the Richard M. Nixon. conspiracy to control the mar- industry. was competitive and A Justice Department spokes- ketplace. Instead, the argu- in compliance with the law. man confirmed today that the ment is that the industry lead- But he added that he deplored F.T.C.'s action had been cleared ers effectively block or stifle "the waste of public and pri- with the department. He said competition from smaller con- the Justice Department's own vate resources that this: task cerns through tacit similarities lawyers have been keeping an will entail." in marketing and prices. eye on the industry but "we 'Yet Another Investigation* weren't close to any kind of Lee A, Iacocca, president of imminent filing." However, it was agreed, he the Ford Motor Corporation, added, that if the F.T.C. devel- the No. 2 car maker, said that oped any kind of criminal case "the decision of the Federal against the auto makers, the Trade Commission to com- department would move in The mence yet another investiga- F.T.C. is empowered only to tion of the automobile industry bring civil actions. is unfortunate and unneces The investigation can be ex- pected to take considerable sary." time, and any resulting litiga- The Chrysier Corporation tion could last several years. ranks behind Ford and the Owen Johnson, director of American Motors Corporation the F.T.C.'s Bureau of Compe- is next in the industry tition, said that if an antitrust The F.T.C.'s announcement suit. should develop, General Motors, which had sales of $32 said that the inquiry would billion in 1974, would not focus on "the economic struc- necessarily be the only de- ture of the American automo- fendant. bile industry on the economic He noted, for example, that performance of firms, both do- the F.T.C. earlier this year mestic and foreign, engaged in brought a "shared monopoly' & FORD casa against all the major Continued on Page 52, Column 5 cereal makers. The shared mon- 110 opoly argument acknowledges that there may be no overt TAB B & FORD LIBRARY U.S. DEPARTMENT OF JUSTICE August 10, 1976 To: Kenneth A. Lazarus Associate Counsel to the President From: Joe Sims Deputy Assistant Attorney General Antitrust Division Subject: Automobile Investigation This memorandum is in response to your request last night for a short statement of the facts surrounding our clearance to the Federal Trade Commission to initiate their broad-scale investigation of the automobile industry. The Department of Justice and the Federal Trade Commission have, for many years, had an informal clearance process which basically involves each agency, prior to beginning an investigation, informing the other agency and asking whether such an investigation would conflict with anything underway or contemplated by the other agency. This "clearance" process is not binding on either agency, but is simply an attempt to avoid duplication of effort. Pursuant to this clearance process, the Federal Trade Commission in late July informed the Department that they were prepared to undertake a substantial investigation of the automobile industry, and were ready to commit significant resources to such an investigation. They asked whether such an investigation would conflict with anything underway or contemplated by the Department. In fact, although the Department has traditionally been the active agency in the automobile industry, we had no investigation underway and had in fact just completed an economic analysis of the industry which was not particularly sanguine about the desirability of antitrust investigations in that industry. Based on these facts, we ordinarily would routinely grant the requested clearance to the Commission. Because this industry had traditionally been in our bailiwick, however, and because of the obvious importance of this industry, we carefully considered the question of FORD REVOLUTION AMERICAN 1778-1978 clearance. In fact, we also met at their request with counsel for General Motors to hear their views on the question of clearance, which they opposed. After con- sidering the matter for about two weeks, we determined that there was no rational basis for refusing clearance to the Federal Trade Commission and, on August 2 we informed Chairman Collier by letter that we were prepared to clear the Commission's investigation subject to two conditions: first, that this clearance would not foreclose the Department from future investigations in the industry, including specifically criminal investigations; and second, that at the conclusion of the Commission's investi- gation, the Department would be given access to information developed by the Commission. On August 3, Chairman Collier responded to our letter by accepting the conditions contained therein. Attached are copies of the exchange of correspondence between the Antitrust Division and the Commission, which have been made available to the press with the Commission's concurrence. I would suggest that any questions that the White House receives on this matter be referred to the Department of Justice for response. Attachment FORD & LIBRARY FEDERAL TRADE COMMISSION WASHINGTON, D. C. 20580 OFFICE OF THE CHAIRMAN AUG 3 1976 The Honorable Donald I. Baker Acting Assistant Attorney General Antitrust Division Department of Justice Washington, D. C. 20530 Dear Mr. Baker: This is in reference to your letter of August 2, 1976, in which you agreed to clear to the Commission a broad investigation of the automobile industry, subject to the conditions specified in your letter. The specified conditions are acceptable to the Federal Trade Commission. Accordingly, the Commission will initiate the necessary papers for the formalization of this clearance agreement. Sincerely Calvin J. Collier Chairman FORD i LIBRARY 07V 02 AUG 1975 Honorable Calvin J. Collier Chairman Federal Trade Commission Washington, D.C. 20580 Dear Mr. Chairman: Pursuant to the liaison procedure between the Federal Trade Commission and the Department of Justice, the Commission has requested clearance to conduct a broad investigation of the automobile industry. We understand that the Commission has completed a detailed economic study and now desires to conduct a comprehensive investigation to determine whether or not violations of Section 5 of the Federal Trade Commission Act are present. Subject to the following conditions, the Department is prepared to process the clearance request without objection. First, this clearance would not foreclose the Department of Justice from future specific investi- gations in this industry, including particularly investi- gations of a criminal nature. Any such future investi- gations would be subject to normal clearance procedures, In that connection, the Commission, consistent with our established practice, would undertake to advise the Department if any evidence of a potential criminal nature is uncovered. Second, at the conclusion of the investigation, the Department would be given access to information obtained by the Commission. Obviously, this would be of particular importance if the Commission should decide that no action under Section 5 were appropriate. If these conditions are acceptable, please let us know and we will proceed to process the clearance request. & FORD LIBRARY As a final point, I should note that the Department has a substantial number of documents obtained by grand jury subpoena during the course of a prior investigation. That investigation was closed long ago, and the return of those documents has recently been requested. Since we have no basis to retain them, we will begin returning them on August 15. Sincerely yours, DONALD I. BAKER Acting Assistant Attorney General Antitrust Division FORD & LIBRARY FEDERAL TRADE COMMISSION WASHINGTON, D. C. 20580 OFFICE OF THE CHAIRMAN AUG 3 1976 The Honorable Donald I. Baker Acting Assistant Attorney General Antitrust Division Department of Justice Washington, D. C. 20530 Dear Mr. Baker: This is in reference to your letter of August 2, 1976, in which you agreed to clear to the Commission a broad investigation of the automobile industry, subject to the conditions specified in your letter. The specified conditions are acceptable to the Federal Trade Commission. Accordingly, the Commission will initiate the necessary papers for the formalization of this clearance agreement. Sincerely Calvin J. Collier Chairman FORD i LIBRARY 02 AUG 1975 Honorable Calvin J. Collier Chairman Federal Trade Commission Washington, D.C. 20580 Dear Mr. Chairman: Pursuant to the liaison procedure between the Federal Trade Commission and the Department of Justice, the Commission has requested clearance to conduct a broad investigation of the automobile industry. We understand that the Commission has completed a detailed economic study and now desires to conduct a comprehensive investigation to determine whether or not violations of Section 5 of the Federal Trade Commission Act are present. Subject to the following conditions, the Department is prepared to process the clearance request without objection. First, this clearance would not foreclose the Department of Justice from future specific investi- gations in this industry, including particularly investi- gations of a criminal nature. Any such future investi- gations would be subject to normal clearance procedures, In that connection, the Commission, consistent with our established practice, would undertake to advise the Department if any evidence of a potential criminal nature is uncovered. Second, at the conclusion of the investigation, the Department would be given access to information obtained by the Commission. Obviously, this would be of particular importance if the Commission should decide that no action under Section 5 were appropriate. If these conditions are acceptable, please let us know and we will proceed to process the clearance request. ERALD R. FORD As a final point, I should note that the Department has a substantial number of documents obtained by grand jury subpoena during the course of a prior investigation. That investigation was closed long ago, and the return of those documents has recently been requested. Since we have no basis to retain them, we will begin returning them on August 15. Sincerely yours, DONALD I. BAKER Acting Assistant Attorney General Antitrust Division & FORD ALD LIBRAR THE WHITE HOUSE WASHINGTON August 24, 1976 MEMORANDUM FOR: JACK MARSH FROM: MAX FRIEDERSDORF w.6. SUBJECT: H. Res. 1462, Anti-Trust Resolution The House will consider today H. Res. 1462, a parliamentary device reported by the Rules Committee which would permit three previously passed House bills to be taken to Conference with the Senate as a package. The bills include H.R. 8532 (Parens Patriae passed previously by voice vote); H.R. 13489, Anti-Trust Civil Process Amendments and H.R. 14580, Pre-Merger Notification, both previously passed on suspension. Chairman Rodino, supported by Representative Bob McClory, appeared before Rules prior to recess to seek the Resolution in order to facilitate a Conference. I recommend we oppose the Resolution. It marries good legislation, pre-merger and civil process, to objectionable legislation, namely, parens patriae which has passed both the House and Senate in objectionable form. To oppose the Resolution today would signal objections only to the unusual parliamentary procedure of merging three previously passed bills. Defeat of H.Res. 1462 would insure the President of considering the three bills on their separate merits and not having to buy all or nothing. Ed Schmults concurs that we oppose H. .Res. 1462. Bill Seidman disagrees, maintaining that this puts the Administration on the politically objectionable side of big business. CC: Bill Seidman Ed Schmults FORD 10 -2- ADDENDUM Minority Leader John Rhodes is putting out a whip advisory that he is personally opposed to the bill as a bad piece of legislation. Michel defers to the Republican Members of the House Judiciary Committee; John Anderson believes the House will adopt the Resolution and that the White House should not get out front on a Custer's Last Stand. Hutchinson favors the Resolution; opposes Parens Patriae. Wiggins is noncommital and Caldwell Butler's dislike of Parens Patriae is constrained because the Virginia attorney general is running for Governor. FORD & LIBRA August 31, 1976 CONGRESSIONAL RECORD-DAILY DIGEST D 1175 vide for participation by the Veterans' Administration tive relief against threatened loss or damage by a viola- in the national Swine Flu immunization program. tion of the antitrust laws. Page S15023 Pages S15045-S15046 (8) By 57 yeas to 25 nays, tabled Hruska amend- Postal Service Organization and Financing: Senate ment No. 2253, to provide that if a State fails to estab- agreed to the conference report on H.R. 8603, to amend lish that the defendant acted in willful violation of the the laws with respect to organizational and financial ántitrust laws, the mandatory relief shall be reduced matters of the United States Postal Service and the from treble to single damages; Page $15025 Postal Rate Commission, thus clearing the measure for (9) By 52 yeas to 26 nays, tabled Bellmon motion action by the House. Pages 514996-S14997 No. 3, calling for Senate to agree to the House amend- Government in Sunshine: Senate agreed to the con- ment to the Senate amendment with an amendment ference report on S. 5, to provide that meetings of gov- to provide that no portion of any monetary relief shall ernment agencies be open to the public, thus clearing be paid to any private counsel employed by the State, the measure for the White House. Pages $15043-515045 or any person other than the natural persons residing Antitrust Amendments: Senate continued to debate in such State in whose behalf such action was brought; House message on H.R. 8532, to improve and facilitate Page 515028 the expeditious and effective enforcement of the anti- (10) By 43 yeas to 2I nays, tabled Allen amendment trust laws, taking action on proposed amendments and No. 2239, to provide that no person may participate in motions made in connection therewith, as follows: bringing an action under Title III while seeking the (I) By 63 yeas to 27 nays, three-fifths of those Sena- nomination for election to any State or Federal public tors duly chosen and sworn having voted in the affirma- office; Page 515037 tive, agreed to motion to close further debate on Robert Senate reached unanimous consent agreement con- C. Byrd motion that Senate agree to the House amend- cerning the further consideration of this bill as follows: ment to the Senate amendment with an amendment To resume consideration thereof at 2 p.m. on Tues- in the nature of a substitute to this bill; Page $15003 day, September 7-2 hour time limitation for debate- (2) By 27 yeas to 62 nays, rejected Alten amendment when it will be in order for Senator Allen to reoffer his No. 2232, in the nature of a substitute for substitute amendment No. 2232, in the nature of a substitute; amendment embodied in Robert C. Byrd motion; To resume its consideration at 2 p.m. on Wednesday, Page S15004 September 8, with vote at 3 p.m. on question of adoption (3) By 82 yeas to 3 nays, agreed to motion to in- of Allen amendment No. 2232, and, if rejected, to be struct the Sergeant at Arms to request the presence of followed by vote on Robert C. Byrd motion; and that absent Senators; Abourezk unprinted amendment No. 410, in the nature Page $15014 of a substitute, be withdrawn from consideration. (4) By 83 yeas to 4 nays, agreed to motion to instruct Page $15047 the Sergeant at Arms to compel the presence of absent Pages $15000-$15043, 515047 Senators. Page $15017 Toxic Substances Control: Senate disagreed to the (5) Tabled Allen unprinted amendment No. 411, House amendments to S. 3149, to protect human health (in the nature of a substitute for the substitute amend- and the environment by requiring testing and necessary ment embodied in Robert C. Byrd motion) as follows: use restrictions on certain chemical substanees, agreed (a) Division I-Title Amendment-tabled by voice to conference with the House and appointed as con- vote; (b) Division 2-Declaration of Policy-tabled by ferees Senators Magnuson, Hartke, Hart of Michigan, 63 yeas to 2I nays; (c) Division 3-Antitrust Civil Pro- Durkin, Tunney, Baker, and Stevens. Page S14986 cedure Act Amendments-tabled by 6I yeas to 19 nays; Indian Claims Commission: Senate disagreed to the (d) Division 4-Parens Patriae amendments-tabled House amendment to S. 2981, authorizing funds for by 62 yeas to 24 nays; (e) Division 5-Premerger. No- the Indian Claims Commission for fiscal year 1977, tification and Stay-tabled by 63 yeas to 23 nays; and requested conference with the House and appointed as (f) Division 6-Making the bill effective no sooner than conferees Senators Jackson, Metcalf, Johnston, Abou- January I, 1977-tabled by 61 yeas to 23 nays. rezk, Fannin, and Bartlett. Pages $15117-515118 Pages $15009, $15017-515019 Water Pollution Control: Senate laid down for fur- (6) By 55 yeas to 23 nays, tabled Thurmond amend- ther consideration tomorrow S. 3037, authorizing funds ment No. 2255, placing compensation on plaintiffs at- for fiscal year 1977 for programs under the Water torney's fees on same basis as that paid by State to pri- Pollution Control Act. Page $15117 vate counsel retained; Page S15022 Presidential Communication: Senate received a com- (7) By 58 yeas to 24 nays, tabled Tower unprinted munication from the President transmitting a report amendment No. 412, to strike provision which provides setting forth his determination that import relief for the for court costs and attorney's fees in actions for injunc- U.S. industry engaged in the commercial production Rhudes - 150-180 or stury veto sig. D 1176 CONGRESSIONAL RECORD-DAILY DIGEST August 31, 1976 and extraction of honey is not in the national economic ticipation by foreign banks in domestic financial mar- interest, and explaining the reasons for his decision- kets, receiving testimony from George H. Dixon, referred to Committee on Finance. Page $15049 Deputy Secretary of the Treasury; Stephen S. Gardner, Presidential Messages: Senate received the following Vice Chairman, Board of Governors of the Federal messages from the President: Reserve System; John B. Olin, Conference of State Bank Transmitting annual report of the National Council Supervisors, Washington, D.C.; William Volckhausen, on the Arts and the National Endowment for the Arts First Deputy Superintendent of Banks of New York, for fiscal year. 1975-referred to Committee on Labor Albany; Carol Greenwald, Commissioner of Banks of and Public Welfare; and Massachusetts, Boston; Robert Ackerman, Pacific Transmitting legislation to establish a IO year national Coast Stock Exchange, San Francisco; Michael Tobin, commitment to double America's heritage of national Midwest Stock Exchange, Chicago; James Dowd, Bos- parks and national wildlife refuges-referred jointly to ton Stock Exchange, Boston; Theodor Schmidt- Committees on Interior and Insular Affairs and Scheuber, ABD Securities Corporation, New York Commerce. City; Hart Perray, So Gen-Swiss International Corpora- Pages S15047-S15048 tion, New York City; Dr. Wolfgang Jahn, Duesseldorf, Legislative Program: Majority Leader discussed Sen- representing European Economic Community Banking ate's legislative program for tomorrow and following Federation, accompanied by his associates; Paul E. forthcoming Labor Day Recess. Page S15119 Hollos, and Steuart L. Pittman, both of Institute of For- Committee Authority To Sit: Certain committees eign Bankers, Washington, D.C.; and Douglas A. were authorized to sit during sessions of the Senate on Smith, Bankers Association for Foreign Trade, Wash- Wednesday, September I, and on Wednesday, Septem- ington, D.C. ber 8. Page S15022 Subcommittee adjourned subject to call. Treaty Received: International Convention for the SECOND CONGRESSIONAL BUDGET RESOLUTION Safety of Life at Sea (Ex. O, 94th Cong., 2d sess.) was received, the injunction of secrecy removed therefrom Committee on the Budget: Committee ordered favor- and the treaty, together with accompanying papers, ably reported an original concurrent resolution revis- was referred to Committee on Foreign Relations. ing the congressional budget for the Federal Gov- Page S15045 ernment for fiscal year 1977. As approved by the Nominations: Senate received the nomination of committee the resolution recommends $412.8 billion Everett T. Keech, of the District of Columbia, to be an for outlays; $447.5 billion for new budget authority; and Assistant Secretary of the Air Force. $362 billion for total revenues for fiscal year 1977. Also, Senate received the withdrawal of the nomina- tions of Margareta E. White, of Virginia, and Joseph REVENUE SHARING AND WITHHOLDING RATES R. Fogarty, of Rhode Island, each to be a member of Committee on Finance: Committee announced that in the Federal Communications Commission, and the nominations were then resubmitted for different terms an evening session on Monday, August 30, it ordered of office. favorably reported the following bills: Page $15120 H.R. II997, to amend the Internal Revenue Code of Quorum Calls: Three quorum calls were taken today. 1954 with respect to the tax treatment of certain divesti- Pages $15004, $15014, $15017 tures of assets by bank holding companies; and Record Votes: Fourteen record votes were taken today H.R. 13367, to amend and extend the State and Local (total-559). Fiscal Assistance Act-"revenne sharing" (amended). Pages $15004-$15005, $15014, S15017, S15018-S15020, S15022, S15023, $15025, S15028, $15038 As approved by the committee, the bill would (a) ex- Recess: Senate met at II a.m. and recessed at 10:58 tend the program for an additional 53/4 years through p.m. until IO a.m. on Wednesday, September I. (For September 30, 1982; (b) set funding for fiscal year 1977 program for Wednesday, see last page of today's at $6.9 billion; and (c) increase annual increment by Record.). $150 million starting with fiscal year 1978. Page $15119 Also, committee agreed to an amendment to extend Committee Meetings the present withholding tax rates until September 15, (Committees not listed did not meet) 1976, intended to be offered as a committee amend- ment to H.R. 3052, to amend the Internal Revenue Code INTERNATIONAL BANKING of 1954 with respect to the tax treatment of the gain on Committee on Banking, Housing and Urban Affairs: the lapse of options to buy or sell securities, when such Subcommittee on Financial Institutions held hearings measure (now on Senate Calendar) is considered by the on H.R. 13876, to provide for Federal regulation of par- Senate. August 31, 1976 CONGRESSIONAL RECORD- DAILY DIGEST 1177 COMMITTEE BUSINESS ceiving testimony from Clifford I. Barrett, Assistant Committee on Foreign Relations: Committee ordered Commissioner, Bureau of Reclamation, Department of favorably reported the following business items: the Interior. Customs Convention on Containers, 1972, and the COAL MINE SAFETY International Convention for Safe Containers (Ex. X, 93d Cong., Ist sess.); Committee on Labor and Public Welfare: Committee Agreement on the Conservation of Polar Bears (Ex. ordered favorably reported, with amendments, S. 1302, I, 94th Cong., Ist sess.); to promote safety in the mining industry; and ordered Convention for the Conservation of Antarctic Seals, reported without recommendation H.R. 13555, House with Annex (Ex. K, 94th Cong., 1st sess.); companion measure. Protocol amending the Interim Convention on Con- BLACK LUNG servation of North Pacific Fur Seals (Ex. M, 94th Cong., 2d sess.); and Committee on Labor and Public Welfare: Subcommit- Fifth International Tin Agreement (Ex. J, 94th Cong., tee on Labor approved for full committee consideration 2d sess.); and with amendments, H.R. 10760, to improve program of The nominations of Robert J. McCloskey, of Mary- benefits for victims of black lung disease. land, to be Ambassador to the Kingdom of the Nether- KENNEDY CENTER FUNDS lands; and William G. Bradford, of Illinois, to be Am- bassador to the Republic of Chad. Committee on Public Works: Subcommittee on Build- ings and Grounds held hearings on H.R. 14360, author- Prior to these actions, committee received testimony izing $3.3 million for repair and reconstruction of the as follows: John F. Kennedy Center for the Performing Arts, re- On the nomination of Ambassador McCloskey from ceiving testimony from Roger Stevens, Chairman, Board J. Ashton-Greene, Pass Christian, Mississippi; of Trustees, John F. Kennedy Center for the Perform- On Ex. I, 94-1, Ex. K, 94-1, and Ex. M, 94-2 from ing Arts, and Jimmie L Dunning, Deputy Director, Lindsay Grant, Acting Deputy Assistant Secretary for National Park Service, Department of the Interior. Environmental and Population Affairs, Bureau of Hearings were adjourned subject to call. Oceans and International Environmental and Scientifie WATER RESOURCE DEVELOPMENT Affairs, Department of State; and Richard Frank, Cen- ter for Law and Social Policy, Washington, D.C.; and Committee on Public Works: Subcommittee on Water On Ex. X, 93-I from Richard Abbey, Assistant Chief Resources continued to consider proposed water resource Counsel, and David Bamowetz, International Opera- development legislation, but did not complete action tions Division, both of the U.S. Customs Service, Depart- thereon and will meet again tomorrow. ment of the Treasury; and Rear Admiral William M. SENATE COMMITTEE REORGANIZATION Benkert, Chief, Office of Merchant Marine Safety, U.S. Coast Guard, Department of Transportation. Select Committee on Committees: Committee met to consider proposals for "starting points" in dealing with WATER PROJECTS-TEXAS, the Senate committee jurisdictional problem, and an- NEW MEXICO/CALIFORNIA nounced that further hearings on this subject will be Committee on Interior and Insular Affairs: Subcom- held September I4 through 16. mittee on Energy Research and Water Resources con- cluded hearings on S. 3712, authorizing the construc- MEDICAID PRACTICES tion, operation, and maintenance of an extension to the Special Committee on Aging: Subcommittee on Long- existing American Canal, Rio Grande Project, Texas- Term Care continued hearings to report the results of New Mexico, after receiving testimony from Representa- its investigation into alleged fraud and abuse among tive White; Edwin F. Sullivan, Assistant Commissioner, participants in the medicaid program, receiving testi- Bureau of Reclamation, Department of the Interior; mony from Robert B. Fiske, Jr., U.S. Attorney, and E. H. Bacza, Mayor of El Paso; Jessie Gilmer, Rio George Wilson, Associate U.S. Attorney, both of the Grande Compact Commission, State of Texas, Austin; Southern District of New York; Joseph Ingber and and George Mosley, El Paso County Water Improve- Sheldon Styles, Chiropractors, New York City; Irving ment District, Texas; and Seidman representing Dr. Clyde Weissbart, and Dr. On S. 3727, authorizing the construction, operation, Nancy Kurke, East Harlem Medical Center, New York and maintenance of the Allen Camp Unit, Pit River City. Division, Central Valley Project, California, after re- Hearings were recessed subject to call. D 1178 CONGRESSIONAL RECORD-DAILY DIGEST August 31, 1976 House of Representatives Chamber Action Agreed to an amendment that inserts language con- tained in H.R. 12835, H.R. 12851, and H.R. 14070 as Bills Introduced: 36 public bills, H.R. 15337-15372; previously passed by the House. 4 private bills, H.R. 15373-15376; and 13 resolutions, H.J. Res. 1081, H. Con. Res. 726 and 727, and H. Res. 1503- Subsequently, the House insisted upon its amendment and asked a conference with the Senate. Appointed as 1512 were introduced. Pages H9319-H9321 conferees: Representatives Perkins, Thompson, Brade- Bills Reported: Reports were filed as follows: mas, O'Hara, Hawkins, Ford of Michigan, Mink, Conference Report on H.R. 8603, Postal Reorganiza- Meeds, Chisholm, Biaggi, Andrews of North Carolina, tion Act Amendments of 1976 (H. Rept. 94-1444); Lehman, Benitez, Blouin, Cornell, Simon, Beard of H.R. 13950, to provide for the cooperation between Rhode Island, Zeferetti, Miller of California, Mottl, the Secretary of the Interior and the States with respect Hall, Quie, Ashbrook, Bell, Erlenborn, Esch, Eshleman, to the regulations of surface coal mining operations, Buchanan, Jeffords, Goodling, and Smith. and the acquisition and reclamation of abandoned Pages H9249-H9251 mines, amended (H. Rept. 94-1445); Committee Elections: House agreed to H. Res. 1503, H.R. 15136, to authorize appropriations for construc- electing Representative Steed chairman of the Commit- tion of facilities on Guam, amended (H. Rept. tee on Small Business; and 94-1446); Conference report on S. 2184, to authorize appropri- H. Res. 1504, electing Representative Ichord as a member of the Committee on Small Business. ations for the winter Olympic games (H. Rept. Page H9251 94-1447); H. Res. 1507, providing for the consideration of H.R. Fire Prevention Authorization: By a voice vote the 14238, making appropriations for the Legislative House passed S. 2862, Fire Prevention and Control Act Branch for fiscal year 1977 (H. Rept. 94-1448); authorization for fiscal year 1977 and 1978; clearing the H. Res. 1472, providing funds for the Select Com- measure for the President. Pages H9251-H9252 mittee on Narcotics Abuse and Control (H. Rept. Private Bill: By a voice vote the House passed S. 3779, 94-1449); a private bill; clearing the measure for the President. H. Res. 1497, authorizing appropriations for special Page H9252 counsel to represent the Sergeant at Arms in the case Toxic Substances: Speaker appointed Representative of Pressler V. Simon, et al. (H. Rept. 94-1450); Brodhead, Scheuer, and Rinaldo as additional con- H. Res. 1510, providing for the consideration of H.R. ferees to the committee of the conference on S. 3149, 3605, relating to the Federal excise tax on beer (H. Rept. Toxic Substances Control Act; and Representative 94-1451); Devine, vice Representative McCollister, resigned. H. Res. 1511, providing for the consideration of H.R. Page H9252 6684, Exclusive Territorial Franchise Act (H. Rept. 94-1452); National Emergencies: House agreed to the Senate H. Res. 1512, providing for the consideration of H.R. amendments to H.R. 3884, National Emergencies Act; 14886, Presidential Transition Act of 1976 (H. Rept. clearing the measure for the President. Page H9253 94-1453); Presidential Message-Arts: Received and read a H.R. 14829, to provide for consumers a further means message from the President transmitting the Annual of minimizing the impact of inflation and economic Report on the National Council on the Arts and the depression by narrowing the price spread between costs National Endowment for the Arts for fiscal year 1975- to the producer and the consumer of needed goods, serv- referred to the Committee on Education and Labor. ices, facilities, and commodities through the develop- Page H9258 ment and funding of specialized credit sources for, and Government in Sunshine: By a yea-and-nay vote of 384 technical assistance, to self-help, not-for-profit coopera- yeas the House agreed to the conference report on S.5, tives (H. Rept. 94-1454) and Government in the Sunshine Act; clearing the measure H.R. 12808, to improve peanut programs (H. Rept. for Senate action. Pages H9258-H9262 94-1455). Page H9319 Electric Vehicles: By a voice vote the House agreed Education Amendments: By a voice vote the House to the conference report on H.R. 8800, Electric and passed S. 2657, to extend the Higher Education Act of Hybrid Vehicle Research, Development, and Demon- 1965, to extend and revise the Vocational Education stration Act of 1976; clearing the measure for the Act of 1963, amended. President. Pages H9262-H9267 August 31, 1976 CONGRESSIONAL RECORD-DAILY DIGEST D1179 Automotive Research: By a yea-and-nay vote of 344 An amendment which sought to retain the present yeas to 39 nays the House agreed to the conference law definition of "local elected officials" in the Regional report on H.R. 13655, Automotive Transport Research Planning Unit representation requirement; and and Development Act of 1976; clearing the measure An amendment in the nature of a substitute which for Senate action. Pages H9267-H9273 sought to require mutual resolution of differences be- Pueblo Indians: By a yea-and-nay vote of 387 yeas tween the State chief executive officer and the State legis- the House agreed to the conference report on S. 217, lature over statewide plans prior to submission to the to repeal the Act of May 10, 1926, relating to the con- Administration. demnation of certain lands of the Pueblo Indians in H. Res. 1246, the rule under which the bill was con- the State of New Mexico; clearing the measure for sidered, was agreed to earlier by a yea-and-nay vote of Senate action. 388 yeas. Pages H9273-H9274 Pages H9274-H9309 Committee to Sit: Objection was heard to a request Legislative Program: Majority leader announced the that the Committee on House Administration be per- legislative program for tomorrow. Page H9312 mitted to sit during proceedings of the House today Amendments Ordered Printed: Amendments ordered under the 5-minute rule. Pages H9275-H9276 printed pursuant to the rule appear on pages H9321- Late Report: Committee on Rules received permission H9338. to file certain privileged reports by midnight tonight. Quorum Calls-Votes: One quorum call, five yea- and-nay votes, and three recorded votes-developed dur- Page H9276 ing the proceedings of the House today and appear OR Law Enforcement: House completed all general debate pages H9261-H9262, H9272, H9273-H9274, H9275, and began reading for amendment H.R. 13636, to. H9287, H9298, H9304, H9307. amend title I (Law Enforcement Assistance) of the Adjournment: Adjourned at 7:06 p.m. Omnibus Crime Control and Safe Streets Act of 1968- but came to no resolution thereon. Proceedings under Committee Meetings the 5-minute rule will continue tomorrow. Pending when the Committee of the Whole rose NATIONAL FOREST MANAGEMENT ACT was an amendment that sought to strike out language Committee on Agriculture: Met for markup of H.R. prohibiting funds for improving state and local cor- 15069, National Forest Management Act, and will re- rectional institutions unless such improvements comply sume tomorrow. with Administration and State standards. INTERIOR APPROPRIATIONS Agreed to: A series of committee amendments en bloc; Committee on Appropriations: Subcommittee on Inte- A series of amendments of a clarifying nature; rior held a hearing on the National Visitors Center. An amendment to the committee amendment requir- ARMED SERVICES MISCELLANY ing that the civil rights enforcement procedures comply Committee on Armed Services: Met and ordered re- with the provisions of the revenue sharing bill as passed ported favorably to the House the following bills: by the House; H.R. 14773 as amended, to authorize cost-of-living A series of technical amendments; and adjustments of annuities under the Retired Service- An amendment which retains the language of pres- man's Family Protection Plan, to suspend retired-pay ent law requiring the approval of local governments for deductions under the Survivor Benefit Plan when there law enforcement program grants (agreed to by a re- is no eligible spouse beneficiary, and to reduce the dura- corded vote of 253 ayes to 133 noes). Earlier, the amend- tion-of-marriage requirement under the Survivor Bene- ment was rejected by a division vote of 38 ayes to 57 fit Plan from two years to, one year; and noes. H.R. 15136 as amended, to authorize appropriations Rejected: for construction of facilities on Guam. A committee amendment adding language requiring The Committee also approved reprogramming that no less than one-third of discretionary funds be action to provide funding for $15.7 million in abnormal used for improving the administration of criminal jus- escalation costs associated with the Economic Price tice in the courts (rejected by a recorded vote of 173 Adjustment clauses of the FY 1975 A-ro airframe and ayes to 214 noes); gun contracts; and An amendment extending the authorization for three Realignment of modification funds for the F-14 years (rejected by a recorded vote of 119 ayes to 268 program totalling $24.5 million. noes); An amendment authorizing mini-block grants to gen- SCHOOL LUNCH PROGRAM eral units of local government (rejected by a division Committee on Education and Labor: Subcommittee on vote of 42 ayes to 50 noes); Elementary, Secondary, and Vocational Education con- D 1180 CONGRESSIONAL RECORD- DAILY DIGEST August 31, 1976 tinued oversight hearings on the school lunch program WILDERNESS LANDS with testimony from public witnesses. Committee on Interior and Insular Affairs: Subcom- Hearings continue tomorrow. mittee on Public Lands met and approved for full com- SERVICE CONTRACT AMENDMENTS mittee action draft of an Omnibus Wilderness bill. Committee on Education and Labor: Subcommittee on EXPORT ADMINISTRATION ACT Labor-Management Relations met and approved for full Committee on International Relations: Continued committee action H.R. 15246, to amend the Service markup of H.R. 7665, to extend the Export Adminis- Contract Act to ensure that all "service employees" ex- tration Act of 1969, and will resume tomorrow. cept bona fide executive, administrative or professional employees will be covered by the Act. DETENTE TETON DAM COLLAPSE Committee on International Relations: Subcommit- tee on International Political and Military Affairs held Committee on Government Operations: Subcommit- a hearing on Détente: An Overview. Testimony was tee on Conservation, Energy, and Natural Resources heard from Helmut Sonnenfeldt, Counselor, Depart- continued hearings on the Teton Dam collapse. Testi- ment of State; and Arthur A. Hartman, Assistant Sec- mony was heard from Bureau of Reclamation Commis- retary of State for European Affairs. sioner Stam; Brig. Gen. Drake Wilson, Deputy Director Hearings continue Thursday, September 2. of Civil Works, Army Corps of Engineers; and Henry Eschwege, Director, Resources and Economic Devel- U.S. INVESTMENT OVERSEAS opment Division, GAO. Committee on International Relations: Subcommit- HOUSE ADMINISTRATION MISCELLANY tee on International Economic Policy met and ap- proved for full committee action S. 2839 amended, Inter- Committee on House Administration: Met and ordered national Investment Survey Act of 1976. reported favorably to the House the following resolutions: RAIL AMENDMENTS S. Con. Res. 85, authorizing the printing as a Senate Committee on Interstate and Foreign Commerce: Began document of a report by a special consultant to the Ad- markup of H.R. 14932, Rail Amendments of 1976, and ministrative Conference of the United States on some will continue tomorrow. administrative procedures of the Internal Revenue Service; MUNICIPAL SECURITIES FULL H. Res. 1472, to provide for the expenses of investiga- DISCLOSURE ACT tions and studies to be conducted by the Select Com- Committee on Interstate and Foreign Commerce: Sub- mittee on Narcotics Abuse and Control; and committee on Consumer Protection and Finance held H. Res. 1497 amended, authorizing appointment of a a hearing on H.R. 15205, Municipal Securities Full Dis- special counsel to represent the Sergeant at Arms in closure Act of 1976. Testimony was heard from SEC the case of Pressler V. Simon, et al. Commissioner Philip Loomis; Treasury Assistant Sec- By a vote of II to 7, the Committee tabled H. Con. retary Robert A. Gerard; and public witnesses. Res. 48 and 49, to provide for the printing of copies of the Constitution of the U.S. FTC RULING ON CONSUMER CLAIMS CONSULTANT CONTRACTS Committee on Interstate and Foreign Commerce: Sub- committee on Consumer Protection and Finance held a Committee on House Administration: Subcommittee hearing on Federal Trade Commission ruling ón pres- on Contracts met and reviewed consultant contracts. ervation of consumer claims and defenses, Testimony BOUNDARY CHANGES was heard from public witnesses. Committee on Interior and Insular Affairs: Subcom- COMMITTEE BUSINESS mittee on Public Lands held hearings on H.R. 3596, Committee on Interstate and Foreign Commerce: Sub- boundary changes in the Cibola National Forest in New committee on Oversight and Inyestigations met and ap- Mexico; H.R. 14799 and H.R. 14800, boundary changes proved a report entitled "The Arab Boycott and Amer- in the World and Mountain Home Tracts in Wyoming; ican Business." and private bills. Testimony was heard from Repre- sentatives Udall, Roncalio, Lujan and McFall; and PETROLEUM MARKETING PRACTICES Departments of Interior and Agriculture. Committee on Interstate and Foreign Commerce: On Following the hearing, the Subcommittee approved Monday evening, August 30, Subcommittee on Energy for full committee action H.R. 3596, H.R. 3818, H.R. and Power approved for full committee action H.R. 14227, and S. 2511, all private bills. 13000 amended, Petroleum Marketing Practices Act. August 31, 1976 CONGRESSIONAL RECORD-DAILY DIGEST D 1181 HABEAS CORPUS gations and Review met for joint briefing by Depart- Committee on the Judiciary: Met and ordered reported ment of Commerce on regulations and program guide- favorably to the House H.R. 15319 amended, to approve lines being developed for the administration of the Pub- in whole or in part, with amendments, certain rules lic Works Employment Act of 1976. relating to cases and proceedings under sections 2254 BEER TAX and 2255 of title 26 of the United States Code. The committee began but did not complete action Committee on Rules: Granted a closed rule providing on H.R. 13157, Victims of Crime Act of 1976. one hour of general debate on H.R. 3605, to amend sec- tion 5051 of the Internal Revenue Code of 1954 (relat- ORGANIC ACT OF GUAM AMENDMENT ing to the Federal excise tax on beer). Testimony was Committee on the Judiciary: Subcommittee on Courts, heard from Répresentatives Pickle, Vigorito, Lundine, Civil Liberties, and the Administration of Justice met Nolan, and Clancy. and approved for full committee action H.R. 4580, with an amendment in the nature of a substitute. INTERSTATE HORSERACING ACT WARM WATER FISH HATCHERY PROGRAM Committee on Rules: Held a hearing but postponed ac- Committee on Merchant Marine and Fisheries: Sub- tion on H.R. 14071, Interstate Horseracing Act of 1976. committee on Fisheries and Wildlife Conservation and Testimony was heard from Representatives Rooney, and Murphy of New York. the Environment held an oversight hearing on the Fish and Wildlife Service's warm water fish hatchery pro- PRESIDENTIAL TRANSITION ACT gram. Testimony was heard from Lynn A. Greenwalt, Committee on Rules: Granted an open rule providing Director, Fish and Wildlife Service; Paul Dembling, one hour of general debate and waiving section 402(a) General Counsel, GAO; Jack Crawford, Georgia De- of P.L. 93-344, the Congressional Budget Act, on H.R. partment of Natural Resources; and Charles Bowers, 14886, Presidential Transition Act of 1976. Testimony Director, Division of Fisheries, State of Kentucky. was heard from Chairman Brooks and Representative WATER RESOURCES DEVELOPMENT ACT Horton. Committee on Public Works and Transportation: Sub- LEGISLATIVE BRANCH APPROPRIATIONS committee on Water Resources continued hearings on the Water Resources Development Act of 1976. Testi- Committee on Rules: Granted a modified rule provid- mony was heard from U.S. Coast Guard and Members ing two hours of general debate; waiving all points of Congress. of order against title I of the bill for failure to comply Hearings continue tomorrow. with the provisions of clause 2, Rule XXI, and providing that no amendment shall be in order except amend- LOCAL SERVICE AIR CARRIER SUBSIDY- ments recommended by the Committee on Appropri- ALL-CARGO SERVICE ations and the amendments printed in the Congressional Committee on Public Works and Transportation: Sub- Record of August 31, 1976 by Representative Shipley, committee on Aviation held hearings on the following and said amendments shall be in order, clause 2 of bills: Rule XXI to the contrary notwithstanding, but shall H.R. 12349, to require retroactive adjustment of local not be subject to amendment except amendments rec- service air carrier subsidy for 1966. Testimony was heard ommended by the Committee on Appropriations and from Representative Pickle; Fred Chabot, CAB; Paul L. pro forma amendments, on H.R. 14238, making appro- Bradshaw, Ozark Airlines; and Francisco A. Lorenco, priations for the Legislative Branch for fiscal year 1977. Texas International Airlines, Inc.; and Testimony was heard from Representatives Schroeder, H.R. 14623, to permit CAB to authorize all-cargo Coughlin, Armstrong, Regula, Edwards, Archer, Bau- service by exemption pending CAB consideration of an man and Grassley. application for initial certification of such service. Tes- EXCLUSIVE TERRITORIAL FRANCHISE ACT timony was heard from John Robson, Chairman, CAB; John W. Barnum, Deputy Secretary of Transportation; Committee on Rules: Granted an open rule providing and Frederick W. Smith, Chairman of the Board, Fed- two hours of general debate; waiving the provisions of eral Express Corporation. clause 2(1) (5) (B) of Rule XI and dividing debate Hearings continue tomorrow. time between the Committee on Interstate and Foreign Commerce and the Committee on Judiciary, on H.R. PUBLIC WORKS EMPLOYMENT ACT 6684, Exclusive Territorial Franchise Act. Testimony GUIDELINES was heard from Chairman Rodino and Representatives Committee on Public Works and Transportation: Sub- Murphy of New York, McCollister, Flowers, Seiberling committees on Economic Development, and on Investi- and Cohen. D 1182 CONGRESSIONAL RECORD- DAILY DIGEST August 31, 1976 NATIONAL CEMETERIES 1977; (B) increase in tax credits for employee stock Committee on Veterans' Affairs: Subcommittee on ownership plan contributions; (C) greater moving ex- Cemeteries and Burial Benefits held a hearing on pro- pense deductions; and (D) liberalize investment tax posals to establish a national cemetery in Alabama and credit for movie and T.V. films. Pennsylvania; and changing criteria for burial in Arling- ton National Cemetery. Testimony was heard from COMMITTEE MEETINGS FOR WEDNESDAY, Representatives Brinkley, Nichols and Edgar; Deputy SEPTEMBER 1 Assistant Secretary of the Army Ford; and public witnesses. (All meetings are open unless otherwise designated) Senate Joint Committee Meetings Committee on Agriculture and Forestry, business meeting, NUCLEAR PROLIFERATION CONTROL 8 a.m., 324 Russell Office Building. Committee on Banking, Housing and Urban Affairs, Subcom- Joint Committee on Atomic Energy: Committee held mittee on Securities, to resume hearings in connection with its hearings on S. 377° and H.R. 15273, to provide for more study of the securities activities of commercial banks, IO a.m., efficient and effective control over the proliferation of 5302 Dirksen Office Building. nuclear explosives, receiving testimony from Robert Committee on the Judiciary, Subcommittee, to hold hearings on the nominations of Harry W. Wellford, of Tennessee, to be A. Fri, Deputy Administrator Energy Research and United States circuit judge for the sixth circuit; Kenneth K. Hall, Development Administration, and Director, White of West Virginia, to be United States circuit judge for the fourth House Nuclear Policy Review Group; and Marcus circuit; and John T. Copenhaver, Jr., to be United States District Rowden, Chairman, Nuclear Regulatory Commission; Judge for the southern district of West Virginia, 9:30 a.m., 2228 and Myron B. Kratzer, Deputy Assistant Secretary of Dirksen Office Building. Committee on Veterans' Affairs, business meeting, to consider State for Nuclear Energy and Energy Technology S. 969, the proposed Veterans Education and Employment As- Affairs. sistance Act; and S. 3596 and H.R. 14299, to increase the rates of Committee recessed subject to call. disability compensation for disabled veterans and rates of de- pendency and indemnity compensation for their survivors, 9:45 ARTS AND HUMANITIES a.m., 414 Russell Office Building. Conferees agreed to file a conference report on the dif- Committee on Public Works, Subcommittee on Water Re- sources, to continue markup of proposed legislation on water ferences between the Senate- and House-passed versions resource development, 10 a.m., 4200 Dirksen Office Building. of H.R. 12838, authorizing funds through fiscal year Committee on Interior and Insular Affairs, Subcommittee on 1980 for programs of the National Foundation on the Parks and Recreation, to hold oversight hearings on the Presi- Arts and Humanities. dent's Bicentennial Land Heritage Program, IO a.m., 3110 Dirk- sen Office Building. DEFENSE APPROPRIATIONS House Conferees, in closed session, continued to resolve the Committee on Agriculture, to continue markup of H.R. 15069, differences between the Senate- and House-passed ver- National Forest Management Act, 10 a.m., 1301 Longworth Building. sions of H.R. 14262, making appropriations for the de- Committee on Armed Services, Subcommittee on Military fense establishment for fiscal year 1977, but did not com- Installations and Facilities, to consider pending real estate proj- plete action thereon and will meet again tomorrow. ects, 2 p.m., 2212 Rayburn Building. Subcommittee on Seapower and Strategic and Critical Ma- EMERGENCY JOBS PROGRAM terials, to mark up H.R. 15081, to authorize the disposal of Conferees continued to resolve the differences between various materials from the national stockpile and the supple- the Senate- and House-passed versions of H.R. 12987, mental stockpile; hold a hearing on the President's request for authorizing funds through fiscal year 1977 for the pub- a supplemental fiscal year 1977 authorization for shipbuilding and conversion, Navy; and reconsider the Subcommittee's prior lic service jobs program under the Comprehensive Em- action disapproving the transfer of naval vessels to Ecuador, ployment and Training Act, but did not complete IO a.m., 2216 Rayburn Building. action thereon and will meet again on Thursday, Sep- Subcommittee on Military Personnel, to continue hearings tember 9. on the recently announced plan of the Secretary of the Army to cope with the Honor Code problem at West Point, 10 a.m., TAX REFORM 2118 Rayburn Building. Conferees continued in an evening session to resolve the Committee on Banking, Currency and Housing, Subcommit- differences between the Senate- and House-passed ver- tee on Economic Stabilization, to hold oversight hearing on the sions of H.R. 10612, proposed Tax Reform Act of 1976. Lockheed Aircraft Corp., 9:30 a.m., 2222 Rayburn Building. Committee on the Budget, to consider Budget Act waiver On Monday, August 30, the conferees tentatively (Section 402) on S. 1174, Hazard Reduction Act, IO a.m., 210 agreed to (A) extend some personal tax credits through Cannon Building. August 31, 1976 CONGRESSIONAL RECORD- DAILY DIGEST D 1183 Committee on the District of Columbia, to mark up H.R. Subcommittee on Criminal Justice, to continue hearings on 15276, Park Police pay comparability; and consider H. Con. H.R. 14476, Special Prosecutor Act of 1976, 9:30 a.m., 2141 Res. 694, to disapprove the Firearms Control Regulations Act Rayburn Building. of 1975, passed by the Council of the District of Columbia, 9:30 Committee on Merchant Marine and Fisheries, Subcommittee a.m., 1310 Longworth Building. on Coast Guard and Navigation, to markup H.R. 13585, to Committee on Education and Labor, Subcommittee on Ete- amend the Federal Boat Safety Act of 1971; and S. 3050, to mentary, Secondary, and Vocational Education, to continue authorize the Secretary of Transportation, when the Coast Guard oversight hearings on the school lunch programs, 9 a.m., 2175 is not operating as a service in the Navy, to lease for military Rayburn Building. purposes structures and their associated real propérty located in Committee on Government Operations, Subcommittee on a foreign country, IO a.m., 1334 Longworth Building. Intergovernmental Relations and Human Resources, to mark up Committee on Post Office and Civil Service, Subcommittee on H.R. 14761, to establish an Office of Inspector General in the Retirement and Employee Benefits, to continue oversight hear- Department of Health, Education, and Welfare, IO a.m., 2247 ings on physical examinations, 9 a.m., 311 Cannon Building. Rayburn Building. Committee on Public Works and Transportation, Subcom- Committee on Interior and Insular Affairs, to consider pend- mittee on Water Resources, to continue hearings on the Water ing legislation, 9:45 a.m., 1324 Longworth Building. Resources Development Act of 1976, IO a.m., 2167 Rayburn Committee on International Relations, to continue markup Building. of H.R. 7665, to extend the Export Administration Act of 1969, Subcommittee on Aviation, to continue hearings on H.R. IO a.m., 2172 Rayburn Building. 12349, to require retroactive adjustment of local service air Subcommittees on International Political and Military Affairs, carrier subsidy for 1966; and H.R. 14623, to permit CAB to and on International Organizations, to hold joint hearings on authorize all-cargo service by exemption pending CAB con- the August 18 incident in the Demilitarized Zone in Korea, sideration of an application for initial certification of such 2 p.m., 2172 Rayburn Building. service, 9:45 a.m., 2253 Rayburn Building. Committee on Interstate and Foreign Commerce, to continue Committee on Science and Technology, Subcommittee on the markup of H.R. 14932, Rail Amendments of 1976, IO a.m., Environment and the Atmosphere, to markup H.R. 14544, 2123 Rayburn Building. 10039 and S. 3383, weather modification legislation, 9 a.m., Subcommittee on Communications, to hold hearing on H.R. 2318 Rayburn Building. 15268, to provide just and reasonable rates, terms, and condi- Committee on Standards of Official Conduct, to consider tions for the use of certain rights-of-way by persons desiring to pending business, 4:15 p.m., H-310, Capitol Building. lease space for wire communications; to be followed by markup of penalties and forfeiture, and pole attachment legislation, Joint Committee Meetings 1:30 p.m., 2123 Rayburn Building. Conferees, on S. 3149, to protect human health and the envi- Committee on the Judiciary, Subcommittee on Courts, Civil ronment by requiring testing and necessary use restrictions on Liberties and the Administration of Justice, to continue markup certain chemical substances, 1:30 p.m., room S-407, Capitol. of pending legislation, IO a.m., 2226 Rayburn Building. Conferees, on H.R. 10339, authorizing the Secretary of Agri- Subcommittee on Immigration, Citizenship and International culture to provide information and technical assistance to encour- Law, to hold hearing on private immigration bills, IO a.m., age the direct marketing of farm products from farmer to 2237 Rayburn Building. consumer, 2 p.m., room S-126, Capitol. Subcommittee on Administrative Law and Governmental Conferees, closed, on H.R. 14262, making appropriations for Relations, to markup H.R. 11315, Foreign Sovereign Immuni- the defense establishment for fiscal year 1977, 9:30 a.m., room ties Act of 1975, and private bills, IO a.m., 219 Cannon Building. H-140, Capitol. D 1184 CONGRESSIONAL RECORD-DAILY DIGEST August 31, 1976 Next meeting of the SENATE Next meeting of the HOUSE OF REPRESENTATIVES 10 a.m., Wednesday, September 1 12 Noon, Wednesday, September 1 Senate Chamber House Chamber Program for Wednesday: After one special order Program for Wednesday: Consideration of H.R. for a speech and a period for the transaction of routine 14238, Legislative Appropriations for fiscal year 1977 morning business of not to exceed 15 minutes, Senate (modified closed rule, 2 hours of debate); will resume consideration of S. 3037, authorizing funds H.R. 13636, Law Enforcement Assistance Admin- for fiscal year 1977 for programs under the Water Pol- istration (conclude consideration); lution Control Act (two hours on the bill). H.R. 14886, Presidential Transition Act Amendments (open rule, I hour of debate); and H.R. 10498, Clean Air Act Amendments (continue consideration). Extensions of Remarks, as inserted in this issue HOUSE Hamilton, Lee H., Ind., E4753 Mosher, Charles A., Ohio, E4755 Hannaford, Mark W., Calif., E4750 Murtha, John P., Pa., E4756 Archer, Bill, Tex., E4754 Hansen, George, Idaho, E4749 Nedzi, Lucien N., Mich., E4788 Ashbrook, John M., Ohio, E4772, E4778 Harrington, Michael, Mass., E4756 Paul, Ron, Tex., E4761 Aspin, Les, Wis., E4790 Hungate, William L., Mo., E4763 Rogers, Paul G., Fla., E4759 Biaggi, Mario, N.Y., E4757, E4763 Johnson, Albert W., Pa., E4749, E4769 Rose, Charles, N.C., E4773 Breckinridge, John, Ky., E4785 Kemp, Jack F., N.Y., E4752, E4787 Roush, J. Edward, Ind., E4761 Brown, Clarence J., Ohio, E4747 Keys, Martha, Kans., E4789 Ryan, Leo J., Calif., E4750, E4777 Collins, Cardiss, Ill., E4769 Lujan, Manuel, Jr., N. Mex., E4757, E4768 Santini, Jim, Nev., E4771 Conte, Silvio O., Mass., E4748 McCormack, Mike, Wash., E4777 Scheuer, James H., N.Y., E4763, E4782 Crane, Philip M., III., E4751 McDonald, Larry, Ga., E4751, E4757, E4780 Vanik, Charles A., Ohio, E4754 Dingell, John D., Mich., E4773 Matsunaga, Spark M., Hawaii, E4750 Wiggins, Charles E., Calif., E4755 Downing, Thomas N., Va., E4770 Mezvinsky, Edward, Iowa, E4755 Wolff, Lester L., N.Y., E4748, E4764 Drinan, Robert F., Mass., E4772, E4779 Mikva, Abner J., Ill., E4764 Yates, Sidney R., III., E4787 Esch, Marvin L., Mich., E4747 Moorhead, William S., Pa., E4754, E4779 Young, Andrew, Ga., E4766 Congressional Record The public proceedings of each House of Congress, as reported by the Official Reporters thereof, are printed pursuant to direc- - tions of the Joint Committee on Printing as authorized by appropriate provisions of Title 44, United States Code, and published for each day that one or both Houses are in session, ex- cepting very infrequent instances when two or more unusually small consecutive issues are printed at one time. 1 The Congressional Record will be furnished by mail to subscribers, free of postage, for $3.75 per month, $45 per year, or 25 cents per copy, payable in advance. Remit check or money order, made payable to the Superintendent of Documents, directly to the Government Printing Office, Washington, D.C. 20402. 11 Following each session of Congress, the daily Congressional Record is revised, printed, permanently bound and is sold by the Superintendent of Documents in individual parts or by sets. I With the exception of copyrighted articles, there are no re- strictions on the republication of material from the Congressional Record. August 31, 1976 CONGRESSIONAL RECORD- DAILY DIGEST D 1183 Committee on the District of Columbia, to mark up H.R. Subcommittee on Criminal Justice, to continue hearings on 15276, Park Police pay comparability; and consider H. Con. H.R. 14476, Special Prosecutor Act of 1976, 9:30 a.m., 2141 Res. 694, to disapprove the Firearms Control Regulations Act Rayburn Building. of 1975, passed by the Council of the District of Columbia, 9:30 Committee on Merchant Marine and Fisheries, Subcommittee a.m., 1310 Longworth Building. on Coast Guard and Navigation, to markup H.R. 13585, to Committee on Education and Labor, Subcommittee on Ete- amend the Federal Boat Safety Act of 1971; and S. 3050, to mentary, Secondary, and Vocational Education, to continue authorize the Secretary of Transportation, when the Coast Guard oversight hearings on the school lunch programs, 9 a.m., 2175 is not operating as a service in the Navy, to lease for military Rayburn Building. purposes structures and their associated real propérty located in Committee on Government Operations, Subcommittee on a foreign country, IO a.m., 1334 Longworth Building. Intergovernmental Relations and Human Resources, to mark up Committee on Post Office and Civil Service, Subcommittee on H.R.- 14761, to establish an Office of Inspector General in the Retirement and Employee Benefits, to continue oversight hear- Department of Health, Education, and Welfare, IO a.m., 2247 ings on physical examinations, 9 a.m., 311 Cannon Building. Rayburn Building. Committee on Public Works and Transportation, Subcom- Committee on Interior and Insular Affairs, to consider pend- mittee on Water Resources, to continue hearings on the Water ing legislation, 9:45 a.m., 1324 Longworth Building. Resources Development Act of 1976, IO a.m., 2167 Rayburn Committee on International Relations, to continue markup Building. of H.R. 7665, to extend the Export Administration Act of 1969, Subcommittee on Aviation, to continue hearings on H.R. 10 a.m., 2172 Rayburn Building. 12349, to require retroactive adjustment of local service air Subcommittees on International Political and Military Affairs, carrier subsidy for 1966; and H.R. 14623, to permit CAB to and on International Organizations, to hold joint hearings on authorize all-cargo service by exemption pending CAB con- the August 18 incident in the Demilitarized Zone in Korea, sideration of an application for initial certification of such 2 p.m., 2172 Rayburn Building. service, 9:45 a.m., 2253 Rayburn Building. Committee on Interstate and Foreign Commerce, to continue Committee on Science and Technology, Subcommittee on the markup of H.R. 14932, Rail Amendments of 1976, IO a.m., Environment and the Atmosphere, to markup H.R. 14544, 2123 Rayburn Building. 10039 and S. 3383, weather modification legislation, 9 a.m., Subcommittee on Communications, to hold hearing on H.R. 2318 Rayburn Building. 15268, to provide just and reasonable rates, terms, and condi- Committee on Standards of Official Conduct, to consider tions for the use of certain rights-of-way by persons desiring to pending business, 4:15 p.m., H-310, Capitol Building. lease space for wire communications; to be followed by markup of penalties and forfeiture, and pole attachment legislation, Joint Committee Meetings 1:30 p.m., 2123 Rayburn Building. Conferees, on S. 3149, to protect human health and the envi- Committee on the Judiciary, Subcommittee on Courts, Civil ronment by requiring testing and necessary use restrictions on Liberties and the Administration of Justice, to continue markup certain chemical substances, 1:30 p.m., room S-407, Capitol. of pending legislation, IQ a.m., 2226 Rayburn Building. Conferees, on H.R. 10339, authorizing the Secretary of Agri- Subcommittee on Immigration, Citizenship and International culture to provide information and technical assistance to encour- Law, to hold hearing on private immigration bills, IO a.m., age the direct marketing of farm products from farmer to 2237 Rayburn Building. consumer, 2 p.m., room S-126, Capitol. Subcommittee on Administrative Law and Governmental Conferees, closed, on H.R. 14262, making appropriations for Relations, to markup H.R. 11315, Foreign Sovereign Immuni- the defense establishment for fiscal year 1977, 9:30 a.m., room ties Act of 1975, and private bills, IO a.m., 219 Cannon Building. H-140, Capitol. [sept. 1976? H.R. F532 3-18-76 the voric-final summital-study civil PeNALTI WIGGINS (150-223-59) 5Pm 9/3/76 Max: Per Frank Polk (H ouse Judiciary Committee) Addendum to our discussion re HR 3532 (The Antitrust Bill) The House Parliamentarian office is preparing to rule that the motion to accept the Senate amendment is privileged and does not require a resolution to that Effect from the Rules Committee. Consequently, a House motion to concur could come up as early as next Thursday. A majority vote is all that is needed to pass and send the bill to the President. No amendments would be in order since any further House amendments would be in the third degree. of 12. R. FORD LIGRE SERVICES THE WHITE HOUSE WASHINGTON September 18, 1976 MEMORANDUM FOR: JACK MARSH JIM LYNN WILLIAM SEIDMAN FROM: PHILIP BUCHEN T. Attached is a draft of a proposed Statement of the President on The Antitrust and Competition Policy of the Ford Administration. It was prepared originally at the Department of Justice and was revised slightly by me. I suggest that such a statement accompany the President's action on the new antitrust bill, just passed by Congress. It could be a part of his signing or vetoing statement or could be issued at the same time as such a statement. Please let me have your comments. Attachment Dictate Dictate Menday FORD LIBRA & CREATO STATEMENT OF THE PRESIDENT THE ANTITRUST AND COMPETITION POLICY OF THE FORD ADMINISTRATION This country has become the economic ideal of the free world because of its dedication to the free enterprise system. Full and vigorous .competition has been the watchword of America's economic progress. This Administration has long recognized that compe- tition is the driving force of our economy. Competitive markets promote efficiency and innovation by rewarding firms that produce desired products at low costs. In a competitive industry, inefficient producers are forced to become efficient or be driven out of business. Competition is also a mighty stimulus to the development of new products and manufacturing processes. The free market system rewards the successful innovator. In today's inter- national economy, members of a vigorously competitive economic system enjoy unlimited worldwide opportunities and contribute significantly to the stability of their domestic economies. In the United States, promotion of competition is consistent with our political and social goals. The undue concentration of economic and political power has tra- ditionally been seen as a threat to individual freedom. FORD is LIBRAR GERALD - 2 - Under competitive conditions, economic power is fragmented; no one firm can control prices or supply. Political power is also decentralized by competition because there is no need for massive governmental bureaucracies to oversee business operations. But perhaps the most compelling justification for a free market economy is that it best serves the interests of our citizens. In a freely competitive market, consumers enjoy freedom of choice from a wide range of products of all sizes, kinds, and varieties. Consumers, through their decisions in the marketplace, transmit their preferences and desires to businessmen who then translate those preferences into the best products at the lowest prices. The Federal Government must play an important role in protecting and advancing the cause of competition. Through enforcement of the antitrust laws, the Antitrust Division of the Department of Justice and the Federal Trade Commission must assure that competitors do not engage in anticompetitive practices. ULD R. FORD VIBEARY -3- A vigorous antitrust enforcement policy is most important in deterring price-fixing agreements between competitors that result in higher costs to consumers. As we come out of an inflationary period and into a period of economic growth and expansion, we must assure that the price mechanism is not artificially manipulated for private gain. This Administration has been the first one in forty years to recognize that there is a second respect in which the Federal Government vitally affects the state of competition. Not only must the Federal Government seek to restrain private anticompetitive conduct, but so, too, must the Federal Government see to it that the govern- mental process does not impede free and open competition. Too often in the past, the Federal Government has itself been a major source of restraints on competition. Many of our most vital industries have over the years been subjected to pervasive regulation. Although regulation has been imposed in the name of the public interest, there is a growing awareness that the consumer is often the real loser. Too many important managerial decisions are made today not by the marketplace responding to the forces of FORD : LIBRARY TOTAL -4- supply and demand but by the bureaucrat. The innovative and creative forces of major industries are suffocated by governmental regulation. In many instances a businessman cannot raise or lower prices, enter or leave markets, provide or terminate services without the prior approval of a Federal regulatory body. This is not the economic system that made this country great. Government regulation is not an effective substitute for vigorous competition in the marketplace. To be sure, in some instances governmental regulation may well protect and advance the public interest. But the time has come to recognize that many existing regulatory controls were imposed during uniquely transitory economic periods that bear no relation to today's economic conditions. We must repeal or modify those controls that suppress rather than support competition. The Administration's competition policy has proceeded along those very lines. We have set in motion a far- reaching regulatory reform program. This program has been accompanied by a policy of vigorous antitrust enforcement to implement our commitment to competition. & FORD LIBRAR - 5 - In the last two years, the antitrust laws have been vigorously enforced by strengthened antitrust enforcement agencies. The resources for the Antitrust Division and the Federal Trade Commission's Bureau of Competition have been increased by over 50 percent since Fiscal Year 1975. For the Antitrust Division, this represented the first real manpower increases since 1950. The Antitrust Division's crackdown on price fixing resulted in indictment of 183 individuals during this period, a figure equalled only once in the 86 years since enactment of the Sherman Act. The fact that the Division presently has pending more grand jury investi- gations than ever in history proves these efforts are not slackening. To preserve a competitive market structure by preventing competitive mergers and acquisitions, the Antitrust Division is devoting substantial resources to merger investigations. At the same time, the Division is litigating large and complex anti-monopoly cases in two of our most important industries. Cases FORD have also been filed involving such anticompetitive restraints as allocation of customers and markets which interfere with the free interaction of competitive forces. - 6 - The cause of vigorous antitrust enforcement was measurably advanced when I signed the Antitrust Procedures and Penalties Act of 1974, which made violation of the Sherman Act a felony punishable by up to three years' imprisonment of individuals and a corporate fine of up to $1 million. I also signed legislation repealing Fair Trade enabling legislation. This action alone, according to various estimates, will save consumers $2 billion annually. Two regulatory reform proposals I have signed -- the Securities Act Amendments of 1975 and the Railroad Revitalization and Regulatory Reform Act inject strong dosages of competition into industries that had long rested in the shade of Federal economic regulation. The Administration has also sponsored important legislative initiatives to reduce regulation of other modes of transportation and the regulation of financial institutions. An important element of the regulatory reform proposals has been the narrowing of legislative antitrust immunities which had been granted to industry rate bureaus and which permitted these groups to restrain i competition under official government sanction. Congress 110 FORD has not yet acted on these proposals. LIBRARY - 7 - The Administration also has underway a broad in- depth review of many other legislative immunities to the antitrust laws, to eliminate those immunities that are not truly justified. All industries and groups, however regulated and by whom, should be subject to the interplay of competitive forces to the maximum extent feasible. A full measure of the Administration's commitment to competition is its proposed Agenda for Government Reform Act that would include a comprehensive, disciplined look at ways of restoring competition in the economy. This would require in-depth consideration of the full range of Federal regulatory activities in a programmatic manner that would allow for an orderly transition to a more competitive environment. This competition policy, which includes regulatory reform and invigorated antitrust enforcement, will protect the businessman who desires to be competitive from both government regulators and anti-competitive competitors. In turn, the American consumers will benefit from full and open competition within the business community. : FORD SEP SO 1976 THE WHITE HOUSE WASHINGTON DATE: Sept. 30, 1976 TO: JACK MARSH FROM: JIM CAVANAUGH SUBJ: LEAA FYI X ACTION FORD i LIBRARY THE WHITE HOUSE WASHINGTON September 30, 1976 MEMORANDUM FOR THE PRESIDENT FROM: JIM CAVANAUGHT SUBJECT: LEAA The conference report on S. 2212, which is an authorization bill for LEAA, cleared conference a few days ago. The conference report has not been taken up by either House. The bill does contain a $10 million authorization for state attorney generals to improve and upgrade their offices and to engage in parens patriae activities. GERALD FORD THE WHITE HOUSE WASHINGTON December 7, 1976 MEMORANDUM FOR: PHILIP BUCHEN JAMES CANNON DICK CHENEY JACK MARSH BILL SEIDMAN FROM: ED SCHMULTS of The Department of Justice wishes to release a report on the Robinson-Patman Act prepared by the Antitrust Division. The report reflects the views of the Antitrust Division and would not be expressing a formal position of the Administration. Attached is an executive summary of the Robinson- Patman Act report. The report concludes that the Act creates serious anti-competitive effects and should, therefore, be repealed. In the alternative, fundamental amendments are suggested. If you wish to see a full copy of the report, which is about two inches thick, please give me a call. Attached also is a copy of a memorandum from the Deputy Assistant Attorney General in the Antitrust Division outlining the manner of the proposed release of the report. If you feel strongly that the Department of Justice should not release the report at this time, please give me a call before the close of business on December 10. Attachments FORD LIBRARY i EXECUTIVE SUMMARY OF DEPARTMENT OF JUSTICE REPORT ON THE ROBINSON-PATMAN ACT Background Last year the President indicated in several speeches his strong desire for consideration of reform or repeal of the Robinson-Patman Act. Following those Presidential statements, the Department of Justice and other concerned agencies (including Commerce, COWPS, SBA and OMB) under the direction of the Domestic Council Review Group (DCRG) considered various approaches to reform of the Robinson-Patman Act. An initial analytic paper was pro- duced by the Antitrust Division on the Act, together with two draft proposals for statutory reform. These were circulated within the Administration in July, 1975. These materials were then made available to the House and Senate Judiciary-Com- mittees looking toward possible congressional-consideration of Robinson-Patman Act reform. In addition, in August of 1975, a meeting of DCRG members with representatives of various small business interests was held at the White House to discuss possible reform proposals. Discussions with the staffs of the Judiciary Committees indicated that, because of the crowded legislative agenda of both committees, hearings on any Administration proposals for repeal or reform of the Robinson-Patman Act were unlikely during the Second Session of the 94th Congress. It was further suggested that additional public education as to the economic impact of the Act would be helpful prior to congressional con- sideration of any reform legislation In the interim, an ad hoc committee of the House Committee= on Small Business held a series of hearings on the Robinson- Patman Act. At these hearings a number of congressional and small business supporters of the Act testified and opposed any change in the Act. In addition, the FTC at the hearings was urged to undertake more vigorous enforcement of the Act and to devote increased resources to this effort. In this setting, the DCRG decided that the wisest course was for it to hold a series of public hearings on the economic impact of the Robinson-Patman Act. FORD LIBRA These hearings were held on December 8, 9 and 10. Testimony was taken from over twenty witnesses including members of the academic community, representatives of small business associations and other businessmen, as well as practicing attorneys. Testimony was also taken from the Assistant Attorney General for Antitrust, Thomas E. Kauper, and former Assistant Attorney General, Donald F. Turner. Following the conclusion of these hearings, the Antitrust Division was asked to prepare a report on the Robinson-Patman Act based on the record of the hearings and other available evidence. The Report summarized here represents the culmina- tion of those efforts. It should be noted that the Report represents the views solely of the Antitrust Division and does not express the position of the Administration. Summary of the Report The Report arrives at several important conclusions about the impact of the Robinson-Patman Act. First, the Act creates serious anticompetitive effects by deterring price flexibility, and indeed fostering price rigidity if not price fixing; second, the Act fosters major inefficiencies in distribution at great cost to consumers; third, the Act fails to achieve any significant antitrust or procompetitive objectives; finally, the Act represents a false and illusory hope for small busi- nesses because in the long run it fails to achieve the pro- tectionist advantages which it promises. On the basis of these conclusions, the Antitrust Division recommends that the Robinson-Patman Act be repealed. In our view, the costs of the Act far outweigh any discernible benefits.- However, it is recognized that others believe that some price discrimination statute is needed Therefore, an alternative reform recommendation has been advanced which in our judgment would produce less adverse impact on the economy than the present Act. The reform proposal has basically four elements. First, it is proposed that enforcement of the new price discrimination statute be left solely to the FTC rather than private plaintiffs. The FTC as a public agency would of course be concerned about a proper application of the Act. The elimination of private plaintiffs would remove the current ability of private business firms to use the threat of suit and treble damage exposure to 2 FORD blackmail competitors into withdrawing price reductions. A less far reaching alternative would be to eliminate the present treble damage provisions for private plaintiffs. The punitive effects of these treble damage provisions clearly deter legitimate price competition. Second, the Report recommends that the offense of price discrimination be narrowed to avoid the present whole- sale interference in legitimate price competition. This narrowing would be accomplished first by placing the burden of proof on the plaintiff to show that a price discrimination was not cost justified, and second, by limiting those circum- stances in which adverse competitive injury may be inferred to instances of systematic discrimination, or the charging of prices below marginal costs. The current standard, which permits a finding of liability for sporadic discrimination or the charging of prices below fully-allocated costs inherently inhibits a significant number of procompetitive price reductions. Third, the report recommends that the defenses to a charge of price discrimination reflect business realities. Thus, businessmen should be able to justify discrimination on the basis of reasonably anticipated future costs according to flexible groupings of customers. Similarly, businessmen should not be required to go through unrealistic and potentially anticompetitive verification procedures to qualify for the meeting competition defense. Finally, the report recommends that the Act's present flat prohibition against discounts in lieu of brokerage and "nonproportional" promotional allowances be eliminated. Since, at worst these practices can only be disguised price discriminations, it is recommended that they be evaluated under the Act's more general provisions, requiring a showing of competitive injury and permitting the interposition of basic defenses. Of course, the basic proposal is for repeal of the Act, reflecting the report's finding that the implementation of a price discrimination statute based on faulty economic assumptions necessarily impedes the competitive process to the great economic detriment of consumers. 3 FORD LIBRA Robinson-Patman Creates Serious Anticompetitive Effects The Robinson-Patman Act is a statute of broad applicability, governing the prices which can be charged for most commodities and sales among businesses, including nearly all products which are to be resold by merchants. While the statute is intended to prevent the abuse of purchasing power by large buyers, the actual effect of the statute is to discourage many procompetitive price reductions. Under Robinson-Patman, the Federal Trade Commission in an enforcement action, or a competing business firm in a treble damage action, can quite easily establish a prima facie case of violation. In most instances, the complainant need only show that one of his competitors was able to obtain a: lower price for a. product, and that such a discount was sufficient to affect the resale price for that item. - Once such a showing is made, the firm granting the discount must prove that the lower. price is justified by some cost saving in supplying the product to the favored customer, or that the lower price is necessary to meet-a lower price of a competing supplier. These defenses are difficult to use. The cost-justification defense requires detailed accounting studies, utilizing procedures which are not part of normal accounting practice, and excluding certain cost savings which a prudent businessman would take into consideration. Consequently, a businessman can never know until his case is finally adjudicated whether his cost- justification defense will be successful. Similarly, in order to defend a price cut on the grounds of meeting competition, the businessman cannot simply rely on a statement from his customer that a lower price has been offered Rather he must undertake affirmative action, such as checking invoices or price quotes, or actually calling his competitor: to verify the bid, before a "matching" discount can be given. Other provisions of the Act are even more restrictive, prohibiting certain payments in lieu of brokerage and promotional allowances regardless of their effects on competition or cost justification. As a consequence of this overreach of the Robinson- Patman Act, the prudent businessman wishing to lower a price to a particular customer must assume that a competitor or the Federal Trade Commission will be able to successfully 4 FORD challenge that price cut and that his ability to defend such a cut is highly uncertain. Rather than undergo the expense of litigation, pre-trial discovery of a firm's proprietary cost and price data, and the possibility of costly damages or injunctive relief, the cautious businessman will simply decide not to cut prices. Robinson-Patman thus promotes pricing inflexibility. Unfortunately, such a result serves to reinforce high prices in oligopolistic manufacturing industries. In industries where there are few sellers, list prices tend to remain sticky and the only way high prices will come down is through the granting of selective discounts. These discounts over time erode the industry's high price structure leading to the establishment of list prices at a lower level. By requiring that price cuts be an all or nothing affair, Robinson-Patman serves to ensure that prices will remain high oligopolists know it is not in their best interests to cut list prices across-the-board except in times of very weak demand The anticompetitive effect of Robinson-Patman is compounded by the fact that the meeting competition defense serves to encourage discussions about prices among compet- itors, and even price fixing agreements. While the defense does not require that a firm check directly with a competitor before meeting his price, courts have stated that if a businessman does discuss prices for the purpose of satis- fying Robinson-Patman, he can be exonerated of what would otherwise be a violation of the Sherman Act. Once such discussions begin, actual price fixing arrangements may result. Finally, restrictions on price cuts to particular customers or geographic areas serve to inhibit businesses from engaging in promotional pricing practices to gain new customers. To the extent that such promotional prices are necessary to enter a market, the Act serves to insulate the entrenched business firms from new competition. In addition to Robinson-Patman's protection of high prices, the Act also leads to higher costs for doing business. Various provisions of the Act serve to protect the existence of brokers and middlemen because the Act makes it difficult for businessmen to restructure their distribution systems to meet the needs of their various customers on an 5 FORD individual basis, Other restrictions on promotional allowances also may require businesses to engage in valueless promotional programs, again because of the inability to tailor such efforts to the realities of the marketplace. Lastly, Robinson-Patman leads to added costs when businessmen engage in product differenti- ation strategies to lawfully avoid the restrictions of the Act. In light of the legislative history of Robinson-Patman, Congressional passage of a statute having such effects becomes understandable. The Robinson-Patman Act was a product of two historical occurrences. The first was the Depression. During the early 1930s, the severe deflation, high unemployment, and increased volume of business bankruptcies led to the general belief that competition was not necessarily in the public interest because it led to prices which were destructively low. Through the NRA Codes of Fair Competition, the minimum rate provisions of the Motor Carrier and Civil Aeronautics Acts, and through Robinson-Patman, Congress sought to stabilize or actually enhance, price levels At about the same time a revolution was occurring in the distribution sector The growth of chain stores in the 1920s led to much concern among wholesalers that absorption of the wholesaling function by chains would force them out of business Similarly, it was feared that the growth of chains would also mean a decline in the number of independent retailers with whom they did business, a fear which the retailers soon adopted. Responding to pressures from these businessmen, state legislatures passed chain store taxes and fair trade laws, and the Congress passed the fair trade enabling amendment to the Sherman Act--and in 1936 passed Robinson-Patman. Because of the understandable congressional desire to do something about the adverse economic effects of the Depression, and to do something to allay the fears of inde pendent wholesalers and retailers, it passed the Robinson- Patman Act without thoroughly understanding the economic assump- tions and long-run economic consequences implicit in such a statute. Thus, we find upon examination that Robinson-Patman's basic assumptions are invalid. Today, prices should be lower, not higher. The granting of discounts is not inherently unfair; it is a necessary part of the dynamics of bringing down high oligopoly prices. Price differences do not normally reflect only differences in costs; they result from the interaction of both supply (cost[ and demand. Lower prices to some do not mean higher prices to others, high prices to certain 6 GERALD A. FORD customers indicate the presence of market power on the seller's side and lower prices may represent a transfer of oligopoly profits from manufacturers to consumers. The Robinson-Patman Act Fails to Achieve Any Significant Antitrust Goals Robinson-Patman is claimed to be an appropriate supplement to the other antitrust laws as a means of catching potentially anticompetitive situations in their "incipiency" by preventing the use of a market advantage gained through price discrim- ination to lessen the number of competitors and decrease competition. Unlike Section 7 of the Clayton Act which covers structural changes caused by mergers, the conclusion that price discrimination will have anticompetitive effects relies upon; a: series speculative and untested inferences. It must be assumed that if one manufacturer is permitted to discriminate in price to a retailer, the effect will necessarily be to force a disfavored businessman from the marketplace; that such a situation would affect many other similarly situated business- men; and that the number- of businessmen so eliminated would be sufficient to seriously reduce competition in the market. The evidence shows, however, that such a chain of events just is not likely in the case of most price discriminations. Yet, these inferences are permitted in order that the statute may be efficiently applied to the billions of pricing transactions in the economy. Thus, the Act virtually presumes that any price discrimination will have an anticompetitive effect when the more likely truth is that the discrimination is procompetitive. Robinson-Patman is, in fact, a regulatory statute, not an antitrust law. Those administering it seek to protect businesses regardless of their relative efficiencies, and regardless of varying demand characteristics- of the markets they serve. As such, the effect of the Act is strikingly similar to that of the other regulatory statutes which empower agencies to set minimum prices. Also, the Act compels businessmen to seek legal advice before making pricing decisions, and may require businessmen to seek advice from the Federal Trade Commission before changing a marketing practice. For all of this, Robinson-Patman provides no demonstrable antitrust benefits. Proponents argue that without Robinson- Patman, any immediate increase in competition and lowering 7 LIBRARY BERALD ? FORD of prices would be outweighed by the likelihood that markets would become increasingly concentrated and prices would rise. In order for that eventuality to occur, though, it would be necessary that a discrimination be so substantial as to force a large number of businesses out of a market, that prices thereafter would rise to a level higher than that charged before and that these higher prices would be maintained for a long enough time to outweigh the benefit of the initial price reductions. No evidence of any such instance has been demonstrated, while testimony to the contrary was heard by the Review Group. Likewise, studies conducted by the Federal Trade Commission of its own enforce- ment orders have not demonstrated that its actions had any appreciable effect in improving competition. Rather, one study found such orders to have no effect, and its authors doubted that price discrimination and increases in concentration were related. Genuinely predatory practices, like below-marginal-cost pricing can be dealt with under the Sherman Act Likewise, small businessmen can counteract the buying power of larger firms through-the formation of cooperative wholesaling operations: Indeed, testimony was. heard from one Review Group witness that his cooperative was so successful in countering the buying power of the chains, that one national food chain joined his group. Robinson-Patman Provides a False Promise to Small Business Perhaps the greatest irony of Robinson-Patman is that it does not protect small businesses as a class. Distribution is a dynamic sector of the economy. In order to remain successful, businessmen must deal with changing population and income characteristics, changing lifestyles, changing products, changing ways of doing business, and competition from new shopping locations. Moreover, businessmen must contend with competition from those who, though doing business in the same manner and in the same area, neverthe- less do so in ways more responsive to the desires of the buying public. In such an environment, it is simply not the case that the ability of one competitor to get a somewhat lower price--on merchandise of like grade and quality, which discount is not cost-justified and is not 8 FORD LIBRA given to meet competition--plays any significant role in determining the success or failure of small business as a class. The fact is that large and small businesses frequently do not engage in precisely the same selling function. Small businesses tend to provide higher price and higher service options, while larger businesses often utilize a lower price, lower service, mass marketing approach. The determinant of the success or failure of a given business in such a situation is not the cost of goods purchased, it is consumer preference for the price/quality/service mix of the large or small business. If a business satisfies its customers, it will survive, if it does not, it will exit the market, and no statute can--or should--prevent this. Not surprisingly, the evidence available to the Review Group does not demonstrate any effect of Robinson-Patman on the viability of small businesses as a group. A comparison between the position of small businesses--retailers:having only one location- in the United States with Robinson-Patman and in Canada without it, shows that the percentage of stores attributable to small business is almost identical in both countries. In Canada, without an effective price discrimination law, small business actually has a higher portion of sales than does the United States. Fair Trade laws were more protective of small business than is the Robinson-Patman Act. Yet, Congress recently found in repealing the Fair Trade enabling statute that Fair Trade simply did not protect small business. Thus, for all its cost, Robinson-Patman gives only illusory protection to the small businessman. Most small businessmen work, very hard, to survive, and will support any statute which offers the promise of protection. But Robinson-Patman only offers a false promise, at a great cost to our society as a whole. SERIAL FORD LIBRARA UNITED STATES DEPARTMENT OF JUSTICE WASHINGTON, D.C. 20530 Address Reply to the Division Indicated and Refer to Initials and Number November 30, 1976 MEMORANDUM FOR: EDWARD C. SCHMULTS DEPUTY COUNSEL TO THE PRESIDENT STANLEY MORRIS DEPUTY ASSOCIATE DIRECTOR FOR MANAGEMENT OFFICE OF MANAGEMENT AND BUDGET FROM: JONATHAN C. ROSE DEPUTY ASSISTANT ATTORNEY GENERAL ANTITRUST DIVISION SUBJECT: ROBINSON-PATMAN REPORT Enclosed for your review is a copy of the Robinson- Patman Report which you have indicated should be released after you have had a chance to look at it. Upon reflection, we are inclined to think that this document should be issued as a Department of Justice Report. The reason for this rests upon our expectation about its ultimate utility: we see the Report having its primary impact on courts and the FTC considering Robinson-Patman issues. In this regard, we think it would have its greatest impact if it were viewed like the 1955 Attorney General's Report on the Antitrust Laws, i.e., as a non-political evaluation of an antitrust law. You will note the Report contains various typographical errors which we estimate could be cleaned up in a matter of hours. ce: ( mems & Report) - Stanley marris (OMB) FORD is 076830 LIBRARY MYOLUTION / / 1 1976