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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Enrolled Bills - August 1984
(3 of 5)
Box: 21
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 82R
SUBJECT:
Enrolled Bill S. 2436 -- Public
Broadcasting Amendments Act of 1984
Richard Darman has asked for comments on the above-
referenced enrolled bill as soon as possible. This bill
would authorize appropriations for the Corporation for
Public Broadcasting (CPB) and a grant program of the
National Telecommunications and Information Administration,
both at levels far beyond Administration requests. The bill
would also repeal 47 U.S.C. § 396 (k), which requires public
broadcasters who pay taxes on earned income unrelated to
broadcasting to refund to CPB an amount equal to the taxes
paid. The bill contains no other provisions beyond the
setting of the funding levels.
OMB and Commerce recommend a veto. The draft disapproval
statement recognizes the contributions of public broadcasting
but objects to the levels in the bill as incompatible with
the clear and urgent need to reduce Federal spending. The
statement notes that legislation providing for Federal
funding at realistic and reasonable levels would be "appro-
priate and welcome."
Assuming the recommendations to veto this bill are accepted,
the question arises whether to use a pocket veto or a return
veto. The use of the pocket veto during an intrasession
adjournment of Congress was addressed in the attached
memorandum prepared for you by Deputy Assistant Attorney
General Robert Shanks on July 10, 1984. That memorandum
noted that while use of the pocket veto during an intrasession
adjournment would be contrary to Kennedy V. Sampson, 511
F.2d 430 (D.C. Cir. 1974), the Government is presently
arguing in Barnes V. Kline, No. 84-5155 (D.C. Cir., filed
May 18, 1984) that use of the pocket veto is appropriate
during any adjournment lasting longer than three days. The
Shanks memorandum concluded that during intrasession adjourn-
ments of longer than three days the President should, if he
desires to disapprove a bill, send it to the originating
House with his objections as well as a statement to the
effect that he is doing so only to comply technically with
Kennedy V. Sampson and not because of any doubts concerning
the availability of the pocket veto.
- 2 -
I have raised this matter with Shanks and he has confirmed
that the advice in the July 10 memorandum is applicable to
this case. The attached memorandum for Darman for your
review and signature alerts Darman to the pocket veto
problem and suggests appropriate revision of the draft
message of disapproval.
CC: Richard A. Hauser
Peter J. Rusthoven
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill S. 2436 -- Public
Broadcasting Amendments Act of 1984
Counsel's Office has reviewed the above-referenced enrolled
bill. If the President decides to disapprove this bill, as
recommended by the Office of Management and Budget and the
Department of Commerce, the proposed message of disapproval
should be revised to preserve the argument that the "pocket
veto" is available during this adjournment of Congress. It
is unclear whether use of the pocket veto is appropriate
during an intrasession adjournment of Congress. Case law in
the District of Columbia suggests that it is not, Kennedy V.
Sampson, 511 F.2d 430 (D.C. Cir. 1974), but the Department
of Justice is presently arguing in court that the pocket
veto is available during any adjournment of Congress lasting
longer than three days. Barnes V. Kline, No. 84-5155 (D.C.
Cir., filed May 18, 1984).
In light of the uncertainty surrounding this issue, the
Department of Justice has recommended that the President
send the instant bill back to the Senate with his objections
as well as a statement that he is doing so only to comply
technically with Kennedy V. Sampson and not because of any
doubts concerning the availability of the pocket veto. The
following language should be substituted for the first
sentence of the draft message of disapproval:
Since the adjournment of the Congress has prevented
my return of S. 2436 within the meaning of Article I,
section 7, clause 2 of the Constitution, my withholding
of approval from the bill precludes its becoming a law.
Notwithstanding what I believe to be my constitutional
power regarding the use of the "pocket veto" during an
adjournment of Congress, however, I am sending S. 2436
to the Senate with my objections, consistent with the
Court of Appeals decision in Kennedy V. Sampson, 511
F.2d 430 (D.C. Cir. 1974).
FFF:JGR:aea 8/27/84
CC: FFFielding/RAHauser/JGRoberts/PJRusthoven/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill S. 2436 -- Public
Broadcasting Amendments Act of 1984
Counsel's Office has reviewed the above-referenced enrolled
bill. If the President decides to disapprove this bill, as
recommended by the Office of Management and Budget and the
Department of Commerce, the proposed message of disapproval
should be revised to preserve the argument that the "pocket
veto" is available during this adjournment of Congress. It
is unclear whether use of the pocket veto is appropriate
during an intrasession adjournment of Congress. Case law in
the District of Columbia suggests that it is not, Kennedy V.
Sampson, 511 F.2d 430 (D.C. Cir. 1974), but the Department
of Justice is presently arguing in court that the pocket
veto is available during any adjournment of Congress lasting
longer than three days. Barnes V. Kline, No. 84-5155 (D.C.
Cir., filed May 18, 1984).
In light of the uncertainty surrounding this issue, the
Department of Justice has recommended that the President
send the instant bill back to the Senate with his objections
as well as a statement that he is doing so only to comply
technically with Kennedy V. Sampson and not because of any
doubts concerning the availability of the pocket veto. The
following language should be substituted for the first
sentence of the draft message of disapproval:
Since the adjournment of the Congress has prevented
my return of S. 2436 within the meaning of Article I,
section 7, clause 2 of the Constitution, my withholding
of approval from the bill precludes its becoming a law.
Notwithstanding what I believe to be my constitutional
power regarding the use of the "pocket veto" during an
adjournment of Congress, however, I am sending S. 2436
to the Senate with my objections, consistent with the
Court of Appeals decision in Kennedy V. Sampson, 511
F.2d 430 (D.C. Cir. 1974).
FFF: JGR:aea 8/27/84
CC: FFielding/RAHauser/JGRoberts/PJRusthoven/Subj/Chron
ID #. 216854 CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H . INTERNAL
JGR
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Richard Darman
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Ennolled Bill S. 2436 - Public Broadcasting
Amendments Act of 1984
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
Cuttou
ORIGINATOR 84,08,23
/ /
Referral Note:
CUAT 18
D 84,08,23
384,08,27
Referral Note:
9:00AM
/
/
/ /
-
Referral Note:
/ /
/ /
Referral Note:
/ /
/ /
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
R/J
Into Copy Only/No Action Necessary
A Answered
C Completed
C. Comment/Recommendation
R. R . Direct Reply w/Copy
B. - Non-Special Referral
S Suspended
D Draft Response
S For Signature
F * Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code
=
"A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
Document No.
216854SS
WHITE HOUSE STAFFING MEMORANDUM
8/23/84
8/27 - 9:00 a.m.
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
ENROLLED BILL S. 2436 - PUBLIC BROADCASTING AMENDMENTS ACT OF 1984
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MURPHY
MEESE
OGLESBY
BAKER
ROGERS
DEAVER
SPEAKES
STOCKMAN
SVAHN
DARMAN
P
ISS
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
HERRINGTON
HICKEY
McFARLANE
McMANUS
REMARKS:
May we have your comments on the attached enrolled Bill by 9:00 a.m.
Monday, August 27. Thank you.
Approval
Disapproval
If recommending disapproval, please comment on
the attached suggested veto message.
RESPONSE:
Richard G. Darman
Assistant to the President
1984 AUG 23 PII 3: 13
Ext. 2702
OMPRESIDENT
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE
MM19
UNITED
OFFICE OF management AND BUDGET
WASHINGTON, D.C. 20503
AUG 23 1984
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill S. 2436 - Public Broadcasting Amendments
Act of 1984
Sponsors - Sen. Goldwater (R) Arizona and 56 others
Last Day for Action
August 29, 1984 - Wednesday
Purpose
To authorize appropriations for (1) the Corporation for Public
Broadcasting and (2) the facilities grant program of the National
Telecommunications and Information Administration.
Agency Recommendations
Office of Management and Budget
Disapproval (Veto
message attached)
Department of Commerce
Disapproval (Veto
message attached)
Department of the Treasury
No objection(Informally)
Discussion
-- Authorization of appropriations for the Corporation for
Public Broadcasting
Funds for public broadcasting are both authorized to be appro-
priated and appropriated two years in advance of the normal
government timetable, in order to increase the ability of the
public broadcasting system to plan for the future, as well as to
facilitate the production of programs requiring long lead times.
The recent authorization and appropriation history of Federal
funds for the Corporation for Public Broadcasting (CPB) is as
follows:
Authorizations in Millions of Dollars
Enrolled Bill
Administration's
Current Law
S. 2436
Proposals
1984
145
110 a)
1985
153
100 a)
1986
162
100 a)
1987
238
100
1988
253
85
1989
270
70
a) March 1981 revisions to Carter budget
2
Appropriations for 1984-1986 -- $137.5 for 1984, $150.5 million
for 1985, and $159.5 million for 1986 -- are only slightly below
the authorized levels. (These figures include supplemental
appropriations contained in H.R. 6040, the Second Supplemental
Appropriations Act, 1984, which is enrolled and awaiting your
action.) Although 1987 funds have not yet been appropriated, the
Labor-Health and Human Services-Education appropriations bill for
1985, H.R. 6028, as passed by the House, contains no funds for
CPB only because of the lack of authorization. As reported in
the Senate, however, the bill contains $238 million, the amount
that would be authorized by this enrolled bill.
-- Facilities grant program of the National Telecommunications
and Information Administration
The facilities grant program of Commerce's National Telecommuni-
cations and Information Administration (NTIA) was originally
intended to provide public broadcasting stations with "seed
money" to acquire new equipment.
The authorization level for the program for 1984 is $12 million;
$11.88 million was appropriated. The Administration's 1985
budget requested no funds for the program on the grounds that the
original aim of the program had been achieved. The enrolled
bill, however, would authorize appropriations for the facilities
grant program of $50 million for 1985, $53 million for 1986, and
$56 million for 1987. H.R. 5712, the Commerce-Justice-State-
Judiciary appropriations bill for 1985, which is enrolled,
contains $24 million for the program for 1985.
-- Other amendments
The enrolled bill would amend the Communications Act of 1934 in
three additional ways. First, the bill would delete an existing
requirement that at least 75% of funds distributed under the
facilities grant program go for construction of new broadcast
stations. According to the report of the House Committee on
Energy and Commerce, more of this money is needed to repair or
replace equipment at existing stations. Second, CPB's authority
to fund certain research, technical, and training activities
would be clarified. Finally, the bill would repeal the so-called
"unrelated business income tax penalty," which requires public
broadcasters who pay taxes on income earned from activities
unrelated to broadcasting (e.g., leasing of excess satellite
distribution capacity for paging purposes) to refund to CPB an
amount equal to the tax paid. Public broadcasters have argued
that this is an unfair system of double taxation.
3
-- Agency views
The Department of Commerce recommends disapproval of the enrolled
bill. In its enclosed views letter, Commerce indicates that the
CPB authorization levels in S. 2436 "grossly exceed those
recommended by the Administration" and states that such
expenditure levels "cannot be justified in this climate of fiscal
austerity." Commerce makes a similar argument with respect to
the facilities grant program.
Commerce notes that during the House debate on this legislation,
Congressman Oxley offered an amendment that received 176 votes
that would have reduced the increases in the CPB and facilities
grants authorizations to levels considerably below the increases
contained in the enrolled bill. Commerce believes that the
probability of a veto override of this bill would be materially
reduced if the Administration indicated a willingness to accept
authorization levels on the order of those included in the Oxley
amendment. The Department's enclosed draft veto message alludes
to such a willingness.
-- Recommendation
This Administration has consistently but unsuccessfully sought to
reduce Federal support for CPB and to close out NTIA's facilities
grant program. We have repeatedly expressed our very strong
opposition to the appropriation authorization levels in this
bill. I sent letters to the Senate Committee on Commerce,
Science, and Technology and the House Committee on Energy and
Commerce on April 30, 1984, and May 8, 1984, respectively,
stating that enactment of this legislation would "not be in
accord with the program of the President." In addition, the
Administration sent clear veto signals on the bill both when it
was before the House Rules Committee and when it was under
consideration on the floor.
In my view, the massive increases in funding for CPB that the
enrolled bill contemplates, as well as the continuation of the
facilities grant program, cannot be justified as a sound use of
the taxpayers' money. Particularly in a time of severe fiscal
constraint, programs of this nature can and should be phased down
and terminated, not continued and expanded. Extraordinary
increases -- involving, in this case, authorization levels that
are triple the Administration's request -- are especially
objectionable.
I should also note something that supporters of increased funds
for CPB seldom acknowledge: that Federal financial support for
CPB amounts to little more than a subsidy for a service whose
primary beneficiaries are a small number of relatively affluent
viewers and listeners who constitute the bulk of the audience of
public broadcasting stations. A typical public radio station,
4
for example, generally attracts less than a 1% market share for
any given program. Of these listeners, most are rather better
off than the community-at-large. Public television stations
attract a larger, but still very small, audience that is somewhat
broader-based than the public radio audience. In these
circumstances, acquiesence in large increases in taxpayer support
of CPB, as we try to hold the line on unnecessary Federal
subsidies elsewhere, strikes me as exceedingly unwise.
With respect to NTIA's facilities grant program, the original
purpose of the program, to assist public broadcasting stations
acquire new equipment, has been achieved. For that reason,
further Federal assistance in this area is neither necessary nor
appropriate.
Moreover, to the extent that the enrolled bill would change the
emphasis of the grant program from the acquisition of new
equipment to the repair and replacement of existing equipment, it
represents a highly questionable departure from previous policy.
It has been argued in the past that alternative funding
arrangements were not available to new public broadcast stations,
and that NTIA seed money for equipment was necessary to get a new
station going and on the air. Once a station is on the air and
operating, however, I am convinced that it can reasonably be
expected to develop new, non-Federal funding sources -- private,
corporate, educational, or the like -- that it can draw on for
financial support for equipment and related items. If the
station cannot develop these kinds of sources, I suggest that it
might be appropriate to assign its license to an entity that can.
Regarding the lineup in Congress on this legislation: it passed
the Senate by voice vote, where it had broad support,
particularly by Senators Goldwater, Packwood, and Hollings.
H.R. 5541, the House counterpart to S. 2436, passed the House by
302-91, while the Oxley amendment, noted earlier, that would have
reduced the bill's authorization levels was defeated by a vote of
176-217. (This amendment would have reduced the authorization
levels for CPB from $238 million to $186 million for 1987; $253
million to $214 million for 1988; and $270 million to $246
million for 1989. The reductions for the facilities grant
program would have been from $50 million to $14 million for 1985;
$53 million to $16 million for 1986; and $56 million to $18
million for 1987.) A Dannemeyer amendment cutting the
authorization levels more deeply lost by a larger margin, 95-298.
The vote on the Oxley amendment, however, is a solid indication
of considerable support in Congress for lower funding levels for
CPB and of the possibility that a veto could be sustained.
Indeed, in a recent letter to me, Congressmen Michel, Broyhill,
and Frenzel urge disapproval of this bill and express optimism
that a veto would be upheld; they also say that they believe
there is little political risk in a veto, and even that could be
5
minimized if Congress, after the veto, passed new legislation
with the authorization levels proposed by Representative Oxley.
I concur in the recommendation of the Commerce Department and am
convinced that disapproval of the enrolled bill is warranted. A
draft veto message is attached for your consideration. It is
virtually identical to Commerce's draft message, but it has been
edited in a few minor respects.
Dorl
Dalashat
David A. Stockman
Director
Enclosures
TO THE SENATE OF THE UNITED STATES:
I am returning herewith without my approval S. 2436, the
"Public Broadcasting Amendments Act of 1984."
This Act would authorize appropriations of $238 million, $253
million, and $ 270 million, respectively, for fiscal years 1987,
1988, and 1989 for the Corporation for Public Broadcasting. It
would also authorize appropriations of $50 million, $53 million,
and $56 million for the Public Telecommunications Facilities
Program administered by the Department of Commerce for fiscal
years 1985, 1986, and 1987.
Public broadcasting constitutes an important national
resource and contributes significantly to the diversity of news,
information, and entertainment choices available to the American
public. Under S. 2436, however, Federal subsidies to public
broadcasting could increase by up to 47 percent between fiscal
years 1986 and 1987. This is a level some 238 percent above what
I have recommended. Spending on new public broadcasting
facilities in 1985 would be authorized at levels more than four
times this year's appropriation. When all of the demands on the
Federal budget are taken into account, increases in spending on
public broadcasting of the magnitude contemplated by this
legislation cannot be justified. They are incompatible with the
clear and urgent need to reduce Federal spending.
2
Legislation which provides for Federal support of public
broadcasting at realistic and reasonable levels, and which
provides public broadcasters with the means and incentives to
explore alternative revenue sources, would be both appropriate
and welcome. If, however, we are to succeed in reducing Federal
spending -- as we must -- massive increases in subsidy payments,
such as those contemplated by S. 2436, cannot be justified.
Accordingly, I am disapproving S. 2436.
Ainety-eighth Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the twenty-third day of January,
one thousand nine hundred and eighty-four
An Act
To amend the Communications Act of 1934 to extend certain authorizations of
appropriations contained in such Act, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SHORT TITLE
SECTION 1. This Act may be cited as the "Public Broadcasting
Amendments Act of 1984".
AUTHORIZATION OF APPROPRIATIONS FOR PUBLIC
TELECOMMUNICATIONS FACILITIES
SEC. 2. Section 391 of the Communications Act of 1934 (47 U.S.C.
391) is amended-
(1) by striking out "and" after "1983," and
(2) by inserting after "1984," the following: "$50,000,000 for
fiscal year 1985, $53,000,000 for fiscal year 1986, and $56,000,000
for fiscal year 1987,"
AUTHORIZATION OF APPROPRIATIONS FOR PUBLIC BROADCASTING
SEC. 3. (a) Section 396(k)(1)(C) of the Communications Act of 1934
(47 U.S.C. 396(k)(1)(C)) is amended—
(1) by striking out "and 1986" and inserting in lieu thereof
"1986, 1987, 1988, and 1989";
(2) by striking out "and" after "1985,"; and
(3) by inserting before the period at the end thereof the
following: ", $238,000,000 for fiscal year 1987, $253,000,000 for
fiscal year 1988, and $270,000,000 for fiscal year 1989".
(b) Section 396(k)(3)(A)(i)(I) of such Act (47 U.S.C. 396(k)(3)(A)(i)(II)
is amended by striking out "research, training, technical assistance,
engineering, instructional support, payment of interest on indebted-
ness,".
S. 2436-2
CRITERIA FOR APPROVAL AND EXPENDITURES BY SECRETARY OF
COMMERCE
SEC. 4. Section 393 of the Communications Act of 1934 (47 U.S.C.
393) is amended by striking out subsection (c) and by redesignating
subsection (d) as subsection (c).
REPEAL OF THE UNRELATED BUSINESS INCOME TAX PENALTY
SEC. 5. Section 396(k) of the Communications Act of 1934 (47
U.S.C. 396(k)) is amended by striking out paragraph (8) and by
redesignating paragraphs (9) and (10) as paragraphs (8) and (9),
respectively.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
Office of Legal Counsel
July 10, 1984
TO:
Mr. Peter J. Rusthoven
Associate Counsel to
the President
FROM: Robert B. Shanks Riss
Deputy Assistant Attorney
General
Office of Legal Counsel
-
-
-
The attached is for your information.
U.S. Department of Justice
Office of Legal Counsel
Office of the
Washington, D.C. 20530
Deputy Assistant Attorney General
M 10 1984
MEMORANDUM FOR FRED F. FIELDING
COUNSEL TO THE PRESIDENT
Re: Use of the "Pocket Veto" During Intrasession Adjournments
This supplements our memorandum to you of December 19,
1983, concerning the use of the "pocket veto" during an
intersession adjournment of Congress. In that memorandum, we
reaffirmed the prior consistent advice of this Office that
disapproval of a bill by presidential inaction, that is, by a
pocket veto, is the appropriate method of disapproval after a
sine die intersession adjournment of the Congress where the
end of the President's constitutional period for approving
or disapproving the bill falls during the adjournment. We
considered the particular resolutions by which the House and
Senate adjourned on November 18, 1983, and agreed to reconvene
on January 23, 1984, and concluded that neither the designa-
tion of an agent to receive messages from the President nor
the provision for the possible recall of Members affected the
appropriateness of the pocket veto.
On Friday, June 29, 1984, both Houses of Congress adjourned
during the second session of the 98th Congress and agreed to
reconvene on July 23, 1984. H. Con. Res. 334, 98th Cong., 2d
Sess., 130 Cong. Rec. S8978, H7533 (daily ed. June 29, 1984).
The question which we now consider is whether the pocket veto is
the appropriate method for disapproval of bills presented during
the current three-week intrasession adjournment. We conclude
that, consistent with the position currently being taken by the
Department in litigation, the pocket veto is the appropriate
method of disapproval. We caution, however, that this position
is inconsistent with a decision of the United States Court of
Appeals for the District of Columbia Circuit and would be likely
to generate a challenge in court by the Congress. We have
therefore attached suggested language for inclusion in a
statement of the President's objections, should he elect to
act in technical compliance with that decision and send a
bill to its originating House with his objections.
I
BACKGROUND
Our memorandum of December 19, 1983, described in detail
the constitutional provision relating to presidential vetoes,
U.S. Const. Art. I, § 7, cl. 2, pursuant to which the President
may use the pocket veto at a time ten days (Sundays excepted)
after a bill has been presented to him if "the Congress by
their Adjournment prevent its Return." 1/ As that memorandum
explained, the practical difference between the return veto and
the pocket veto is that Congress has no opportunity to override
the latter. We will not here repeat our discussion in the
earlier memorandum of the history and the scope of the pocket
veto power, but we will instead limit our discussion to the
appropriateness of the pocket veto during this intrasession
adjournment. For a more detailed description of the Pocket Veto
Clause, we would refer you to our December 19, 1983, memorandum.
1/ Article I, § 7, cl. 2 of the Constitution provides:
Every Bill which shall have passed the House
of Representatives and the Senate, shall,
before it become a Law, be presented to the
President of the United States; If he approve
it he shall sign it, but if not he shall
return it, with his Objections to that House
in which it shall have originated, who shall
enter the Objections at large on their Journal,
and proceed to reconsider it. If after such
Reconsideration two thirds of that House shall
agree to pass the Bill, it shall be sent,
together with the Objections, to the other
House, by which it shall likewise be recon-
sidered, and if approved by two thirds of that
House, it shall become a law. If any
bill shall not be returned by the President
within ten Days (Sundays excepted) after it
shall have been presented to him, the Same
shall be a Law, in like Manner as if he had
signed it, unless the Congress by their
Adjournment prevent its Return, in which Case
it shall not be a Law.
(Emphasis added.) The underscored phrase is commonly referred
to as the "Pocket Veto Clause" because it empowers the Presi-
dent to prevent a bill from becoming law simply by placing it
in his pocket, that is, without returning it with his objections.
-2-
II
THE CASE LAW
As noted in our December 19, 1983, memorandum, use of the
return veto during a brief, intrasession recess of one House
of Congress was upheld in Wright V. United States, 302 U.S.
583 (1938). The Supreme Court stated that "Congress" had not
adjourned, within the meaning of the Pocket Veto Clause, in
circumstances in which only one House, the Senate, had recessed
for three days while the House of Representatives was in ses-
sion. The Court relied in part upon Article I, section 5,
clause 4 of the Constitution, which provides that "[n]either
House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days
:
Accordingly, the Court held that the return veto was the
appropriate form of disapproval even though the particular
bill had originated in the Senate and, pursuant to Article I,
section 7, clause 2 of the Constitution, was required to be
returned to that House. See note 1, supra. The Court rejected
both legal and practical arguments that the Senate's recess
had "prevented" the President from returning the bill:
In returning the bill to the Senate by
delivery to its Secretary during the recess
there was no violation of any express
requirement of the Constitution
Nor was there any practical difficulty
in making the return of a bill during a
recess. The organization of the Senate
continued and was intact. The Secretary of
the Senate was functioning and was able to
receive, and did receive, the bill
There is no greater difficulty in returning
a bill to one of the two Houses when it is
in a recess during the session of Congress
than in presenting a bill to the President
by sending it to the White House in his
temporary absence.
302 U.S. at 589-90. The Court expressly refused to conjecture
whether an intrasession adjournment by one House of more than
three days, for which the consent of the other House is required
pursuant to Article I, section 5, clause 4, would prevent the
return of a bill and thereby trigger the Pocket Veto Clause.
Id. at 598.
-3-
More recently, the issue of the use of a pocket veto
during an intrasession adjournment of both Houses of Congress
was considered in Kennedy V. Sampson, 511 F. 2d 430 (D.C. Cir.
1974). In that case, which involved an adjournment of six
days by one House and five days by the other, the court of
appeals concluded that "intrasession adjournments of Congress
have virtually never occasioned interruptions of the magnitude
considered in the Pocket Veto Case, [279 U.S. 655 (1929), 1"
and that " [m]odern methods of communication" made the return
veto appropriate. 511 F.2d at 441. The court held that "an
intrasession adjournment of Congress does not prevent the
President from returning a bill which he disapproves so long
as appropriate arrangements are made for the receipt of
presidential messages during the adjournment." Id. at 437.
In Kennedy V. Jones, 412 F. Supp. 353 (D.D.C. 1976),
the Government settled a challenge to the President's pocket
veto of two bills, one during an intersession adjournment and
the other during an intrasession election adjournment of
thirty days, by a consent judgment. On the day that judgment
was entered, President Ford announced that he would use the
return veto rather than the pocket veto during intrasession
and intersession recesses and adjournments of the Congress,
provided that Congress designated an authorized agent to
receive returned vetoes. The Department has taken the posi-
tion that this announcement was limited to President Ford's
actions and that it did not bind, nor could it have bound,
future Presidents. 2/
On November 18, 1983, the last day of the first session
of the 98th Congress, H.R. 4042, 98th Cong., 1st Sess. (1983),
was presented to the President. This bill would have continued
through fiscal year 1984, or until Congress enacted new legis-
lation, the requirements of existing law for continued military
aid to El Salvador, pursuant to which the President would have
been required to make a semi-annual certification that human
rights conditions in that country were progressing. The
President did not sign H.R. 4042 and did not return it to the
2/ This Office reached this conclusion in our memorandum of
December 19, 1983, at pp. 8-9. The brief on appeal to the
District of Columbia Circuit in Barnes V. Kline, No. 84-5155,
which is discussed infra in text, contains similar statements.
See id. at 27.
-4-
House of Representatives with a veto message. On November 30,
1983, the White House issued a statement which announced that
the President was withholding his approval from H.R. 4042 and
explained his reasons for doing SO. 19 Weekly Comp. Pres. Doc.
1627 (Nov. 30, 1983). H.R. 4042 has not been published as a
law of the United States.
On January 4, 1984, thirty-three individual Members of the
House of Representatives filed suit against the Administrator
of the General Services Administration and the Executive Clerk
of the White House because of their failure to publish H.R. 4042
as a law. Plaintiffs have alleged that the President's failure
to return the bill allowed the bill to become law without his
signature because the pocket veto power is not available during
an intersession adjournment. The Senate and the bipartisan
elected leadership of the House of Representatives intervened
in support of the plaintiffs. Plaintiffs and the intervenors
sought a declaratory judgment that the bill had become law and
that the defendants were required to publish it. Plaintiffs
also asked for an injunction or a writ of mandamus directing
the defendants to effect publication.
The district court dismissed the complaint, stating that
the case was "identical" to the question presented in the
Pocket Veto Case, supra, which held that the Pocket Veto Clause
was applicable when Congress was in an intersession adjourn-
ment. See Barnes V. Carmen, 582 F. Supp. 163, 167 (D.D.C.
1984). The district court also rejected the plaintiffs'
argument that the subsequent decisions in Wright and Kennedy
V. Sampson "have so attenuated Pocket Veto as to deprive it of
controlling force." Id. Of particular importance to the use
of the pocket veto during an intrasession adjournment is that
the court distinguished both Wright and Kennedy V. Sampson on
the ground that they were expressly limited to the facts of
those cases, that is, intrasession vetoes. 582 F. Supp. at
167-68. Accordingly, the court held that "neither Wright nor
Kennedy V. Sampson give it license to depart from the only case
directly in point, Pocket Veto. Unless and until the Supreme
Court reconsiders the rule of that case, the Court must, as
must all lower federal courts, follow it." 582 F. Supp. at
168.
The Barnes case was argued to the Court of Appeals for
the District of Columbia Circuit on June 4, 1984 (with Acting
Administrator Kline of the General Services Administration
substituted as a defendant). No decision has been reached in
the appeal.
-5-
III
DISCUSSION
This Office has previously identified distinctions in the
the use of the pocket veto during intersession and intrasession
adjournments. In a memorandum of February 10, 1982, for Deputy
Counsel to the President Richard A. Hauser from Assistant
Attorney General Olson, we concluded, for example, that the
"historical practice
strongly supports the pocket veto
during final and intersession adjournments, but is inconclusive
for intrasession adjournments." Id. at 3.
That memorandum also identified the interests served by
the pocket veto -- mutuality, prompt reconsideration, and
public certainty -- and examined these interests in an attempt
to identify the contours of the pocket veto power. We indi-
cated that, in some circumstances, these interests were
differently served by intersession and intrasession pocket
vetoes. For example, the memorandum can be read to conclude
that use of the pocket veto to serve the President's interest
in mutuality is required during an intrasession adjournment
only if "Congress failed to provide any effective means by
which the President may return a bill during the adjournment."
Id. at 11. The memorandum also concluded that the interest
in prompt reconsideration was difficult to quantify and that
between the extremes of the five-month adjournment at issue in
the Pocket Veto Case and the three-day and five-day adjournments
at issue in Wright and Kennedy V. Sampson, respectively, lay
"a broad area of uncertainty, in which the argument favoring
the validity of a pocket veto becomes stronger as the period of
adjournment increases." Id. At times, we noted, the interest
in mutuality would reinforce the interest in prompt reconsidera-
tion; at other times, it would conflict.- Finally, we identified
two separate components, factual and legal, of the interest in
public certainty. The factual component could be satisfied by
the " [m]odern methods of communication" referred to in Kennedy
V. Sampson, while the legal component required a bright line
rule. In this respect, the interest in prompt reconsideration,
measured along a continuum of increasing strength over time,
was in tension with the legal need for public certainty.
Applying these factors, the memorandum concluded that the
pocket veto was appropriate during intersession adjournments,
but that its use during an intrasession adjournment would be
"directly contrary to the language in Kennedy and inconsistent
with at least the spirit of Wright. The interests underlying
-6-
the pocket veto provision do not clearly resolve the question
whether pocket vetoes are appropriate during intrasession
adjournments." Id. at 16. We specifically noted that use of
the pocket veto should not be precluded within a session of
Congress, for there was room to argue that Kennedy V. Sampson
was erroneous and that the broad dicta in Wright should not be
followed. Nevertheless, we predicted that such an argument
would face an uphill battle in the courts. We therefore
advised that the President should not exercise the pocket veto
during an intrasession adjournment unless he was willing to
face an almost inevitable legal challenge in which he might
not be successful, at least in the lower courts. 3/
The brief filed in the court of appeals on behalf of the
United States in Barnes V. Kline, No. 84-5155 (D.C. Cir.,
filed May 18, 1984), points out that the applicability of the
Pocket Veto Clause to intersession adjournments is a sufficient
basis upon which to decide that case. The brief nevertheless
makes the broader argument that a pocket veto of H.R. 4042 was
appropriate because the adjournment during which it was
vetoed was longer than three days. The brief thus advances
a theory for use of the pocket veto power that does not depend
upon a distinction between intersession and intrasession
adjournments, which, as both parties in Barnes concede, is
nowhere mentioned in the Constitution in connection with the
Pocket Veto Clause. Rather, the brief draws another line
which is equally bright and which has the added advantage of
providing the only rational constitutional basis for distin-
quishing "adjournments," when the pocket veto is appropriate,
from "recesses," when it is not.
The distinction stems from the Supreme Court's character-
ization in Wright of Article I, section 5, clause 4 as "the
constitutional permission" granted to each House to adjourn
for not more than three days without the consent of the other.
See Wright, supra, 302 U.S. at 598. The Wright Court termed
these particular adjournments "recesses, a term which has
3/ In a supplemental memorandum of November 15, 1982, for
Deputy Counsel to the President Hauser from Assistant Attorney
General Olson, we again stated our conclusion that the pocket
veto was the appropriate method of disapproval during both
intersession and extended intrasession adjournments. We again
advised, however, that the case law suggested caution in
exercising that power during at least intrasession adjournments
until more favorable court decisions had been obtained.
-7-
parliamentary significance for Congress, but no constitutional
significance. Consistent with this distinction, the Court then
held that a "recess
while Congress is in session" does
not prevent a return veto. Id. Because the Court relied on
this "constitutional permission" to distinguish "recesses" from
adjournments under the Pocket Veto Clause, the brief maintains
that only a recess within the constitutionally prescribed
three-day limit is outside the Pocket Veto Clause. The Depart-
ment has thus argued that the analysis in Wright leads to the
conclusion that the Pocket Veto Clause applies to all adjourn-
ments in excess of three days. As the brief notes, the majority
in Wright expressly declined to "conjecture" about the result
if "Congress" has not adjourned its session but one House has
adjourned for more than three days, 302 U.S. at 598, but
Justice Stone's separate concurring opinion concluded that the
Court had in fact "intimat[ed]" that a return of the bill is
prevented within the meaning of the Pocket Veto Clause by an
adjournment of more than three days. Id. at 601-02.
Fully explained, under the theory advanced in the Depart-
ment's brief, "Congress" is "adjourned" within the meaning of
the Pocket Veto Clause whenever the adjournment is longer than
three days, even if the adjournment is limited to one House,
because either a one-House or a two-House adjournment of longer
than three days requires action by the "Congress." In other
words, if both Houses are adjourned, the adjournment is "by the
Congress," under the analysis of the Court in Wright, whether
the adjournment is intersession or intrasession. If only one
House is adjourned, but the adjournment is for more than three
days, the adjournment of that House still results in an adjourn-
ment "by the Congress" within the meaning of the Pocket Veto
Clause because Article I, section 5, clause 4 of the Constitu-
tion requires at least the consent of the other House to an
adjournment of longer than three days. See generally Brief in
Barnes at 49-57.
The Brief in Barnes further argues that the decision by the
court of appeals in Kennedy V. Sampson was based on a misreading
of Wright. The "fundamental error" in Sampson, according to the
brief, was that court's failure to recognize that the Supreme
Court in Wright had considered two separate issues: whether a
return was legally prevented within the meaning of the Pocket
Veto Clause and whether a return was practically impossible. By
confusing these issues, the court in Sampson ignored the basis
for the Supreme Court's holding in Wright -- the fact that there
was no "adjournment" by Congress within the meaning of that term
as used in the Constitution -- and instead incorrectly relied on
the lack of any physical impossibility preventing the President's
return of the bill.
-8-
There are, however, certain obvious limitations to reliance
on the distinction between "recesses" and "adjournments" as the
constitutional basis for the exercise of the pocket veto during
this current intrasession adjournment. First, of course,
the veto would be inconsistent with the decision in Kennedy V.
Sampson, which is currently the law of this circuit.
Second, it is important to remember (notwithstanding our
argument in Barnes that a constitutional distinction should
be recognized between recesses of less than three days, by one
or both Houses, on the one hand, and adjournments of longer
than three days, by one or both Houses, on the other) that the
district court's opinion in Barnes nevertheless appears to
rely heavily on the distinction, which seems to exist under
prior cases, between intersession and intrasession adjourn-
ments. For example, the district court in Barnes dismissed
the complaint because it found that the case was identical to
the Pocket Veto Case, concerning an intersession adjournment,
and distinguishable from Wright and Kennedy V. Sampson, which
concerned intrasession adjournments. Thus, notwithstanding
that the result of the district court's decision in Barnes
was to uphold the President's exercise of the pocket veto
power, the decision probably should not be read as recognizing
a pocket veto power broad enough to include intrasession, as
well as intersession, adjournments. Rather, the decision
serves to emphasize the difference under current law between
intersession and intrasession adjournments.
4/ As noted, the brief in Barnes argues that Kennedy V.
Sampson was incorrectly decided. If the court of appeals
reverses the district court in that case, and the case goes on
to further proceedings, either in the court of appeals en banc
or in the Supreme Court, the Department will argue that Sampson
should be overruled. Nevertheless, it is the law at this time.
5/ A number of these distinctions have been previously noted
by this Department. For example, the Brief in Barnes in the
court of appeals emphasizes a number of ways in which the
exercise of the pocket veto during an intersession adjournment
is based upon different -- and more convincing -- constitu-
tional considerations, including the difference in historical
practice and the introduction in Congress of legislation
directed solely against the use of the pocket veto during
intersession adjournments. These factors are cited as support
(footnote continued on next page)
-9-
Finally, given Congress's eagerness to challenge the
President's exercise of the pocket veto during the intersession
adjournment of the 98th Congress, a procedure that was clearly
supported by the Pocket Veto Case, there is a very high
probability that Congress would challenge the exercise of the
pocket veto during this intrasession adjournment, when the use
of the pocket veto is less clearly established by history and
legal precedent.
IV
RECOMMENDATION
Given the pendency of the appeal in Barnes, and the law in
this circuit that the pocket veto cannot be exercised during an
intrasession adjournment, we would counsel against the use of
the pocket veto at this time during an intrasession adjournment.
We would advise instead that if the President wishes to disap-
prove a bill presented to him during this intrasession adjourn-
ment, he should send the bill to its originating House with a
message which contains his objections, as well as an explanation
that he is doing so merely to comply technically with the
decision of the court of appeals in Kennedy V. Sampson, and not
because of any doubts concerning the availability of the pocket
veto during an intrasession adjournment. He should state his
conviction that the bill will fail to become law merely because
he is withholding his approval, inasmuch as the Congress has
prevented its return by their adjournment. We have attached
suggested language for this purpose.
5/ (continued)
for the proposition that the pocket veto power is available
during intersession adjournments, but they might also be per-
ceived to support the conclusion that the pocket veto power is
not appropriate during intrasession adjournments. Similarly,
prior memoranda of this Office have construed the purpose of
the provision in House Rule III-5 for receipt of presidential
messages as facilitating, if possible, the use of the return
veto during intrasession adjournments and thereby discouraging
the use of the pocket veto at that time. We concluded that the
Rule was not intended to, and did not, require the use of the
return veto during intersession adjournments. The implication
may be present, therefore, that the use of the pocket veto
during intrasession adjournments presents a different legal
situation from intersession adjournments.
-10-
We do not believe that such a course would amount to an
unfavorable admission regarding the scope of the pocket veto
power or that it would have any adverse precedential conse-
quences in the future. When the law in this area is clarified
-- hopefully, after the decision in the Barnes case --- it
should then be possible to exercise the pocket veto during
intrasession adjournments without this precautionary step.
We believe that a court would be unlikely to view a return
veto accompanied by the disclaimer described above as anything
other than an attempt by the President to act in technical
compliance with Kennedy V. Sampson while, at the same time,
preserving his constitutional power.
Paint Shank
Robert B. Shanks
Deputy Assistant Attorney General
Office of Legal Counsel
Attachment --
Suggested language for presidential
statement concerning disapproval
CC: Richard K. Willard
Acting Assistant Attorney General
Civil Division
-11-
ATTACHMENT
Suggested Language For Presidential Statement
Concerning Disapproval
Since the adjournment of the Congress has prevented
my return of H.R.
within the meaning of Article I,
section 7, clause 2 of the Constitution, my withholding
of approval from the bill precludes its becoming a law.
Notwithstanding what I believe to be my constitutional
power regarding the use of the "pocket veto" during an
adjournment of Congress, however, I am sending H.R.
to the Clerk of the House of Representatives with my
objections, consistent with the court of appeals' decision
in Kennedy V. Sampson, 511 F.2d 430 (D.C. Cir. 1974).
-i- -
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
August 27, 1984
STATEMENT BY THE PRESIDENT
I have today signed H.R. 5890, which establishes a
temporary commission to encourage and advise on appropriate
observances of the first legal holiday commemorating the birth
of Martin Luther King, Jr., which will occur on January 20,
1986.
The Commission can make a significant contribution by
assisting governmental and private organizations in arranging
for appropriate ceremonies to honor this great and distin-
guished man.
I have been advised by the Attorney General that, in
view of the requirements of the Appointments and the
Incompatibility Clauses of the Constitution, a majority of
the Members of the Commission, and therefore the Commission
itself, may perform only ceremonial and advisory functions.
# # # #
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS asd
SUBJECT:
Enrolled Bill H.R. 4214 -- Mineral
Resources Research Institutes
Richard Darman has asked for comments on the above-
referenced enrolled bill by noon today. This bill,
consistently opposed by the Administration, would extend for
five years Federal matching funding for 31 mineral institutes,
typically established at universities. The affected agencies
do not recommend a veto, since funding levels are low and
the President's February 1984 veto of a similar water
research institutes bill was easily overriden.
The bill does, however, contain a troublesome provision that
Justice recommends addressing in a signing statement. The
Surface Mining Control and Reclamation Act of 1977, which
created the mineral institutes program extended by this
bill, also established a Committee on Mining and Mineral
Resources Research ("the Committee"). The membership of the
Committee includes two private individuals who serve ex
officio -- the President of the National Academy of Sciences
and the President of the National Academy of Engineering.
Under the 1977 Act, the responsibilities of the Committee
were purely advisory, so the fact that these two individuals
were not appointed by the President or an executive branch
official presented no constitutional concerns. The instant
bill would, however, expand the responsibility of the
Committee, to include determining the eligibility of a
college or university to participate in the mineral institutes
program. Section 10 (a).
Justice has advised, and I agree, that the Committee's new
responsibility must be considered advisory rather than final
if the bill is to survive scrutiny under the Appointments
Clause, as interpreted in Buckley V. Valeo, 424 U.S. 1
(1976). The proposed signing statement makes this point.
I have reviewed the memorandum for the President prepared by
OMB Director David Stockman, the bill itself, and the draft
signing statement, and have no objections.
Attachment
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 4214 -- Mineral
Resources Research Institutes
Counsel's Office has reviewed the above-referenced enrolled
bill, and the accompanying signing statement, and finds no
objection to them from a legal perspective.
FFF:JGR:aea 8/27/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 27, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 4214 -- Mineral
Resources Research Institutes
Counsel's Office has reviewed the above-referenced enrolled
bill, and the accompanying signing statement, and finds no
objection to them from a legal perspective.
FFF:JGR:aea 8/27/84
cc: FFFielding/JGRoberts/Subj/Chron
ID #. 216814 CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O . OUTGOING
H INTERNAL
I * INCOMING
Date Correspondence:
Received (YY/MM/DD)
1
Name of Correspondent:
Richard Darman
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Emotled Bill H.R. 4214 - mineral Resources
Research Institutes
ROUTE TO:
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DISPOSITION
Tracking
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Date
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CUHOU
ORIGINATOR 84,08,22
/
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Referral Note:
CLIAT 18
ee 80' 48 Φ
5 84,08,27
Referral Note:
noon
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-
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Referral Note:
ACTION CODES:
DISPOSITION CODES:
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R - Direct Reply w/Copy
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S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code
=
"A"
Completion Date = Date of Outgoing
HECOMER
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference. ext. 2590.
5/81
216814SS
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE: 8/22
8/27 - NOON
ACTION/CONCURRENCE/COMMENT DUE BY:
ENROLLED BILL H.R. 4214 - MINERAL RESOURCES RESEARCH INSTITUTES
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MURPHY
MEESE
OGLESBY
BAKER
ROGERS
DEAVER
SPEAKES
STOCKMAN
SVAHN
DARMAN
P
785
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
ELLIOTT
HERRINGTON
HICKEY
McFARLANE
McMANUS
REMARKS:
May we have your comments on the attached Bill and suggested signing
statement by noon Monday, August 27. Thank you.
RESPONSE:
1984 AUG 22 Pil 5: 04
Richard G. Darman
Assistant to the President
Ext. 2702
UNITED OFFICE OF
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET 1934 AUG 22 Fill 2: 50
WASHINGTON, D.C. 20503
AUG 22 1984
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill H. R. 4214 - Mineral Resources Research
Institutes
Sponsors - Rep. McNulty (D) Arizona and 10 others
Last Day for Action
August 31, 1984 - Friday
Purpose
Extends for five-years the authorization of appropriations for
the Department of the Interior's mineral research institute
program, which expires on September 30, 1984.
Agency Recommendations
Office of Management and Budget
Approval (Signing
statement attached)
Department of the Interior
No objection
National Science Foundation
Defers to Interior
Department of Justice
Cites concerns
(Signing statement
attached)
Discussion
Background
The Surface Mining Control and Reclamation Act 1977 established a
State mining and mineral resources research program in the
Department of the Interior. Under the program, Interior makes
one-to-one matching grants to 31 mineral institutes to stimulate
research and train scientists in mining and metallurgy. The
authorization of appropriations for the program expires
September 30, 1984.
Substantial changes have occured in the mineral industry since
the inception of the program, reducing the demand for newly
trained mining engineers and extractive metallurgists. Moreover,
the mineral institutes aided by the program are all components of
large, viable educational institutions, which derive a large
portion of their financial support from State revenues and other
2
non-Federal sources. The Administration has, therefore,
consistently recommended no funding for this program, arguing
that it is time the States and the private sector assume these
responsibilities. Nevertheless, Congress has continued to
appropriate funds for the program. An amount of $9.4 million was
appropriated for 1984. The Senate-reported version of the 1985
Interior appropriations bill includes $9.65 million for this
purpose.
The Enrolled Bill
The enrolled bill, which passed both Houses by voice vote, would:
-- authorize appropriations to the Secretary of the Interior
adequate to provide each State institute with $300,000 in
fiscal year 1985, and $400,000 annually for fiscal years
1986 through 1989 (with 31 institutes, this would amount to
$9.3 million in fiscal year 1985 and $12.4 million annually
for 1986 through 1989, for a total of $58.9 million);
-- increase the ratio of matching funds the States must
contribute to the institutes from one-to-one to 1.5-to-1
for fiscal years 1985 and 1986, and 2-to-1 for fiscal years
1987 through 1989;
-- authorize appropriations to the Secretary of the Interior
of $10 million in fiscal year 1985, increasing $1 million
each year through fiscal year 1989 (for a total of $60
million), for specific research and demonstration projects;
-- authorize annual appropriations of $1 million for fiscal
year 1985 and succeeding years to the Secretary for
publishing results of the program and other administrative
costs;
-- require the Secretary to establish a center for cataloging
research in all mining and mineral resources fields;
-- require the President to clarify and coordinate Federal
mining and mineral resources research "by such means as he
deems appropriate;"
-- expand the membership of the Committee on Mining and
Mineral Resources Research established under the 1977 Act
from 9 to 12 members, including six members chosen by the
Secretary--two university administrators involved with the
program, two individuals from the mining industry, a
working miner, and a representative of the conservation
3
community (Current membership consists of three officers of
the Executive branch, four individuals chosen by the
Secretary of the Interior, the President of the National
Academy of Sciences, and the President of the National
Academy of Engineering); and
-- require the Committee, which currently serves a purely
advisory role, to determine the eligibility of new
institutes to participate in the program using specified
criteria, which could be interpreted as an Executive branch
function, as discussed below.
Executive Branch Position
On behalf of the Administration, the Interior Department
testified and reported in opposition to both H.R. 4214 and its
Senate companion bill, S. 2186 (Warner (R) VA and 33 others)
before the House Committee on Interior and Insular Affairs and
the Senate Committee on Energy and Natural Resources in February
and March of this year. Moreover, in February I sent a letter to
Senator McClure strongly opposing S. 2186, and in a Statement of
Administration Policy we expressed opposition to H.R. 4214. The
reasons for Administration opposition were:
-- the current institutes are well-established and able to
support themselves with funding from their States and the
private sector;
-- each institute is associated with a major college or
university funded primarily by non-Federal sources;
-- the institutes will continue to receive grants and
contracts under other ongoing Federal research programs;
-- several changes have occurred in the mining industry since
the inception of the program in 1978, including a reduced
demand for technical personnel; and
-- it would be inadvisable to expand the role of the Committee
on Mining and Mineral Resources Research to include
inappropriate duties going beyond those of an advisory
nature.
4
Congressional Views
During House floor debate on H.R. 4214, Representatives Lujan
(R-New Mexico), McNulty (D-Arizona), Emerson (R-Missouri),
McCain (R-Arizona), Vucanovich (R-Nevada), Richardson
(D-New Mexico) and Daschle (D-South Dakota) persuaded their
colleagues that the bill is necessary to reverse the growing
dependence of the United States on foreign supplies of essential
minerals. In addition, supporters in both Houses pointed to a
decrease in total authorizations for the program and the
increased State matching requirements as signals to the States
and private industry that both will have to assume greater
responsibility for continuation of the program.
Agency Views
The Department of the Interior has no objection to your approval
of the bill, given the overwhelming congressional support for
this legislation and the improved matching and the institutes'
more specific eligibility requirements.
The Department of Justice advises that the sections of the bill
dealing with the Committee on Mining and Mineral Resources
Research "raise important and fundamental constitutional issues."
Justice notes the bill's provisions which require the Committee
to determine eligibility for Federal funds might be held to be
unconstitutional unless interpreted to require the Committee to
make eligibility recommendations to the Secretary of the Interior
for final determination. The Senate Report on the bill supports
this interpretation, and Justice recommends that, should you
decide to approve this bill, you issue a signing statement
"recognizing the need for the bill to be construed carefully to
avoid these constitutional problems."
Conclusion
I concur in Interior's assessment that given the overwhelming
congressional support for this program there is nothing to be
gained from attempting to veto this legislation. In this regard
I note that the issues raised by this measure are directly
parallel to those posed by S. 684, the Water Resources Act of
1984. That bill extended a five-year appropriation authorization
for a program of grants to State water research institutes for
which the Administration has sought unsuccessfully for three
years to end Federal funding in favor of State and private sector
support. You vetoed S. 684 on February 21, 1984, but the Senate
overrode the veto by 87-12 on March 21, 1984, and the House
overrode by 309-81 the next day.
5
Moreover, appropriations for this program have historically been
far below the amounts authorized. In fiscal year 1984, as noted
above, appropriations were $9.4 million, compared to an
authorization of over $37 million. The 1985 appropriation will
be about the same as for 1984. While the elimination of all
funding for the program is a desirable but probably unattainable
goal in the short run, appropriations are likely to remain at a
modest level and considerably less than the authorized amounts.
Accordingly, I recommend that you approve the enrolled bill.
Attached for your consideration is a revision of Justice's
signing statement regarding the constitutional concerns raised by
the bill. We modified Justice's draft statement to (1) delete
favorable comments on the substantive provisions of the enrolled
bill and (2) reflect the fact that it is the statutory assignment
of arguably Executive duties to a committee that already includes
members chosen by private organizations, rather than vesting new
appointment authority in such organizations, that raises
constitutional concerns.
David A. Stockman
Director
Enclosures
STATEMENT BY THE PRESIDENT
I have today signed H.R. 4214, a bill to establish a State
Mining and Mineral Resources Research Institute program, and for
other purposes.
As its title suggests, the bill would reauthorize the
Department of the Interior's program for funding State mining and
mineral resources research institutes. In order to assist in the
operation of this program, the bill also continues the Committee
on Mining and Mineral Resources Research, which was originally
established in 1977 under the Surface Mining Control and
Reclamation Act to advise the Secretary of the Interior on
matters relating to mining and mineral resources research.
H.R. 4214 would require the Committee to assist in the
determination of organizations eligible for funding under this
Act.
I am concerned that since two of the current Committee's
members were appointed by private organizations, the requirement
to assist in determining eligibility for Federal funds could
raise fundamental constitutional questions. The Attorney General
has advised me that this vesting of authority to assist in the
determination of eligibility for Federal funds in a Committee
that includes members appointed by private organizations could
constitute a violation of the Appointments Clause, Article II,
Sec. 2, cl. 2, unless the responsibilities of the Committee are
given a careful narrowing construction. The Supreme Court has
decided that all persons "exercising significant authority
pursuant to the laws of the United States," must be appointed by
the President. Buckley V. Valeo, 424 U.S. 1, 126 (1976). For
this reason, I am signing the bill based on my understanding that
this Committee, which includes members appointed by private
organizations, would only perform advisory functions.
The research goals which this bill seeks to further must be
carried out consistent with the Constitution. Accordingly, I
have directed the Secretary of the Interior to seek the advice of
the Attorney General in implementing this Act to ensure that it
does not transgress constitutional limitations.
Finally, I must reiterate my concerns that the mineral
institute program is no longer an appropriate use of Federal
funds, given changes in the mineral industry since the program's
inception in 1977 that have reduced the demand for technical
personnel. My Administration will continue to propose reductions
in Federal funds for the program, in the belief that it should be
funded primarily by State and private sources.
CORRECTED SHEET
Ainety-eighth Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the twenty-third day of January,
one thousand nine hundred and eighty-four
An Art
To establish a State Mining and Mineral Resources Research Institute program, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
AUTHORIZATION OF STATE ALLOTMENTS TO INSTITUTES
SECTION 1. (a)(1) There are authorized to be appropriated to the
Secretary of the Interior (hereafter in this Act referred to as the
"Secretary") funds adequate to provide for each participating State
$300,000 for the fiscal year ending September 30, 1985, and $400,000
to each participating State for each fiscal year thereafter for a total
of five years, to assist the States in carrying on the work of a
competent and qualified mining and mineral resources research
institute or center (hereafter in this Act referred to as the "insti-
tute") at one public college or university in the State which meets
the eligibility criteria established in section 10.
(2)(A) Funds appropriated under this section shall be made avail-
able for grants to be matched on a basis of no less than one and one-
half non-Federal dollars for each Federal dollar during the fiscal
years ending September 30, 1985, and September 30, 1986, and no
less than two non-Federal dollars for each Federal dollar during the
fiscal years ending September 30, 1987, September 30, 1988, and
September 30, 1989.
(B) If there is more than one such eligible college or university in
a State, funds appropriated under this Act shall, in the absence of a
designation to the contrary by act of the legislature of the State, be
granted to one such college or university designated by the Gover-
nor of the State.
(C) Where a State does not have a public college or university
eligible under section 10, the Committee on Mining and Mineral
Resources Research established in section 9 (hereafter in this Act
referred to as the "Committee") may allocate the State's allotment
to one private college or university which it determines to be eligible
under such section.
(b) It shall be the duty of each institute to plan and conduct, or
arrange for a component or components of the college or university
with which it is affiliated to conduct research, investigations, dem-
onstrations, and experiments of either, or both, a basic or practical
nature in relation to mining and mineral resources, and to provide
for the training of mineral engineers and scientists through such
research, investigations, demonstrations, and experiments. The sub-
ject of such research, investigation, demonstration, experiment, and
training may include exploration; extraction; processing; develop-
ment; production of mineral resources; mining and mineral technol-
ogy; supply and demand for minerals; conservation and best use of
available supplies of minerals; the economic, legal, social, engineer-
ing, recreational, biological, geographic, ecological, and other as-
CORRECTED SHEET
H.R. 4214-2
pects of mining, mineral resources, and mineral reclamation. Such
research, investigation, demonstration, experiment, and training
shall consider the interrelationship with the natural environment,
the varying conditions and needs of the respective States, and
mining and mineral resources research projects being conducted by
agencies of the Federal and State governments and other institutes.
RESEARCH FUNDS TO INSTITUTES
SEC. 2. (a) There is authorized to be appropriated to the Secretary
$10,000,000 for the fiscal year ending September 30, 1985. This
amount shall be increased by $1,000,000 for each fiscal year thereaf-
ter for four additional years, which shall remain available until
expended. Such funds when appropriated shall be made available to
institutes to meet the necessary expenses for purposes of-
(1) specific mineral research and demonstration projects of
broad application, which could not otherwise be undertaken,
including the expenses of planning and coordinating regional
mining and mineral resources research projects by two or more
institutes; and
(2) research into any aspects of mining and mineral resources
problems related to the mission of the Department of the Inte-
rior, which are deemed by the Committee to be desirable and
are not otherwise being studied.
(b) Each application for funds under subsection (a) of this section
shall state, among other things, the nature of the project to be
undertaken; the period during which it will be pursued; the qualifi-
cations of the personnel who will direct and conduct it; the esti-
mated costs; the importance of the project to the Nation, region, or
State concerned; its relation to other known research projects there-
tofore pursued or being pursued; the extent to which the proposed
project will provide opportunity for the training of mining and
mineral engineers and scientists; and the extent of participation by
nongovernmental sources in the project.
(c) The Committee shall review all such funding applications and
recommend to the Secretary the use of the institutes, insofar as
practicable, to perform special research. Recommendations shall be
made without regard to the race, religion, or sex of the personnel
who will conduct and direct the research, and on the basis of the
facilities available in relation to the particular needs of the research
project; special geographic, geologic, or climatic conditions within
the immediate vicinity of the institute; any other special require-
ments of the research project; and the extent to which such project
will provide an opportunity for training individuals as mineral
engineers and scientists. The Committee shall recommend to the
Secretary the designation and utilization of such portions of the
funds authorized to be appropriated by this section as it deems
appropriate for the purpose of providing scholarships, graduate
fellowships, and postdoctoral fellowships.
(d) No funds shall be made available under subsection (a) of this
section except for a project approved by the Secretary and all funds
shall be made available upon the basis of merit of the project, the
need for the knowledge which it is expected to produce when
completed, and the opportunity it provides for the training of indi-
viduals as mineral engineers and scientists.
(e) No funds made available under this section shall be applied to
the acquisition by purchase or lease of any land or interests therein,
CORRECTED SHEET
4214-3
or the rental, purchase, construction, preservation, or repair of any
building.
FUNDING CRITERIA
SEC. 3. (a) Funds available to institutes under sections 1 and 2 of
this Act shall be paid at such times and in such amounts during
each fiscal year as determined by the Secretary, and upon vouchers
approved by him. Each institute shall-
(1) set forth its plan to provide for the training of individuals
as mineral engineers and scientists under a curriculum appro-
priate to the field of mineral resources and mineral engineering
and related fields;
(2) set forth policies and procedures which assure that Federal
funds made available under this Act for any fiscal year will
supplement and, to the extent practicable, increase the level of
funds that would, in the absence of such Federal funds, be made
available for purposes of this Act, and in no case supplant such
funds; and
(3) have an officer appointed by its governing authority who
shall receive and account for all funds paid under the provisions
of this Act and shall make an annual report to the Secretary on
or before the first day of September of each year, on work
accomplished and the status of projects underway, together
with a detailed statement of the amounts received under any
provisions of this Act during the preceding fiscal year, and of its
disbursements on schedules prescribed by the Secretary.
If any of the funds received by the authorized receiving officer of
any institute under the provisions of this Act shall by any action or
contingency be found by the Secretary to have been improperly
diminished, lost, or misapplied, such funds shall be replaced by the
State concerned and until so replaced no subsequent appropriation
shall be allotted or paid to any institute of such State.
(b) The institutes are authorized and encouraged to plan and
conduct programs under this Act in cooperation with each other and
with such other agencies and individuals as may contribute to the
solution of the mining and mineral resources problems involved.
Moneys appropriated pursuant to this Act shall be available for
paying the necessary expenses of planning, coordinating, and con-
ducting such cooperative research.
DUTIES OF THE SECRETARY
SEC. 4. (a) The Secretary shall administer this Act and, after full
consultation with other interested Federal agencies, shall prescribe
such rules and regulations as may be necessary to carry out its
provisions. The Secretary shall furnish such advice and assistance
as will best promote the purposes of this Act, shall participate in
coordinating research initiated under this Act by the institutes,
shall indicate to them such lines of inquiry that seem most impor-
tant, and shall encourage and assist in the establishment and
maintenance of cooperation by and between the institutes and
between them and other research organizations, the United States
Department of the Interior, and other Federal establishments.
(b) On or before the first day of July in each year beginning after
the date of enactment of this Act, the Secretary shall ascertain
H. 4214-4
whether the requirements of section 3(a) have been met as to each
institute and State.
(c) The Secretary shall make an annual report to the Congress of
the receipts, expenditures, and work of the institutes in all States
under the provisions of this Act. The Secretary's report shall indi-
cate whether any portion of an appropriation available for allot-
ment to any State has been withheld and, if so, the reason therefor.
AUTONOMY
SEC. 5. Nothing in this Act shall be construed to impair or modify
the legal relationship existing between any of the colleges or univer-
sities under whose direction an institute is established and the
government of the State in which it is located, and nothing in this
Act shall in any way be construed to authorize Federal control or
direction of education at any college or university.
MISCELLANEOUS PROVISIONS
SEC. 6. (a) The Secretary shall obtain the continuing advice and
cooperation of all agencies of the Federal Government concerned
with mining and mineral resources, of State and local governments,
and of private institutions and individuals to assure that the pro-
grams authorized by this Act will supplement and not be redundant
with respect to established mining and minerals research programs,
and to stimulate research in otherwise neglected areas, and to
contribute to a comprehensive nationwide program of mining and
minerals research, with due regard for the protection and conserva-
tion of the environment. The Secretary shall make generally avail-
able information and reports on projects completed, in progress, or
planned under the provisions of this Act, in addition to any direct
publication of information by the institutes themselves.
(b) Nothing in this Act is intended to give or shall be construed as
giving the Secretary any over mining and mineral
resources as research repealing conducted or diminishing by any existing authorities or respon- and
ment, sibilities or of agency of the Federal Government to plan
conduct, contract any for, or assist in research in its area of responsibil-
ity and concern with regard to mining and mineral carried resources. out
under (c) this Act by an institute financed by grants under this Act,
No research, demonstration, or experiment shall be
unless all uses, products, processes, patents, and other developments the
resulting therefrom, with such exception or limitation, if any, as made
Secretary may find necessary in the public interest, are
available promptly to the general public. Patentable inventions
shall be governed by the provisions of Public Law 96-517. Nothing
contained in this section shall deprive the owner of any background
patent relating to any such activities of any rights which that owner
may have under that patent.
(d) There are authorized to be appropriated after September 30, of
the 1984, results of activities carried out by institutes under this Act
such sums as are necessary for the printing and publishing and
for administrative planning and direction, but such appropriations
shall not exceed $1,000,000 in any single fiscal year.
H.R. 4214-5
CENTER FOR CATALOGING
SEC. 7. The Secretary shall establish a center for cataloging
current and projected scientific research in all fields of mining and
mineral resources. Each Federal agency doing mining and mineral
resources research shall cooperate by providing the cataloging
center with information on work underway or scheduled by it. The
cataloging center shall classify and maintain for public use a catalog
of mining and mineral resources research and investigation projects
in progress or scheduled by all Federal agencies and by such non-
Federal agencies of government, colleges, universities, private
institutions, firms, and individuals as may make such information
available.
INTERAGENCY COOPERATION
SEC. 8. The President shall, by such means as he deems appropri-
ate, clarify agency responsibility for Federal mining and mineral
resources research and provide for interagency coordination of such
research, including the research authorized by this Act. Such coordi-
nation shall include-
(1) continuing review of the adequacy of the Government-wide
program in mining and mineral resources research;
(2) identification and elimination of duplication and overlap
between agency programs;
(3) identification of technical needs in various mining and
mineral resources research categories;
(4) recommendations with respect to allocation of technical
effort among Federal agencies;
(5) review of technical manpower needs, and findings concern-
ing management policies to improve the quality of the Govern-
ment-wide research effort; and
(6) actions to facilitate interagency communication at man-
agement levels.
Mineral SEC. 9. Resources (a) Assistant Research Secretary composed of of- the Interior responsible for
(1) the and mining research, or his delegate; his
minerals (2) (3) the the Director, Director, Bureau United of Mines, States or Geological delegate; Survey, or his his
delegate; (4) the Director of the National Science Foundation, or his
delegate; (5) the President, National Academy of Sciences, or his
delegate; (6) the President, National Academy of Engineering, or
delegate; and other persons who are knowledgeable including in
the two grams Reclamation (7) fields university not more of mining than administrators by six and section of mineral 1977, 301 involved two of resources the representatives Surface in the research, conduct Mining from Control of from pro- the
a Act working miner, and a representative six appointments,
mining conservation industry, community. In making these groups.
the the Secretary shall consult with interested
H.R. 4214-6
(b) The Committee shall consult with, and make recommendations
to, the Secretary on all matters relating to mining and mineral
resources research and the determinations that are required to be
made under this Act. The Secretary shall consult with, and consider
recommendations of, such Committee in such matters.
(c) Committee members, other than officers or employees of Fed-
eral, State, or local governments, shall be, for each day (including
traveltime) during which they are performing Committee business,
paid at a rate fixed by the Secretary but not excess of the daily
equivalent of the maximum rate of pay for grade GS-18 of the
General Schedule under section 5332 of title 5 of the United States
Code, and shall be fully reimbursed for travel, subsistence, and
related expenses.
(d) The Committee shall be jointly chaired by the Assistant Secre-
tary of the Interior responsible for minerals and mining and a
person to be elected by the Committee from among the members
referred to in paragraphs (5), (6), and (7) of subsection (a) of this
section.
(e) The Committee shall develop a national plan for research in
mining and mineral resources, considering ongoing efforts in the
universities, the Federal Government, and the private sector, and
shall formulate and recommend a program to implement the plan
utilizing resources provided for under this Act. The Committee shall
submit such plan to the Secretary, the President, and the Congress
on or before March 1, 1986, and shall update the plan annually
thereafter.
(f) Section 10 of the Federal Advisory Committee Act (5 U.S.C.
App.) shall not apply to the Committee.
ELIGIBILITY CRITERIA
SEC. 10. (a) The Committee shall determine the eligibility of a
college or university to participate as a mining and mineral re-
sources research institute under this Act using criteria which
include-
(1) the presence of a substantial program of graduate instruc-
tion and research in mining or mineral extraction or closely
related fields which has a demonstrated history of achievement;
(2) evidence of institutional commitment for the purposes of
this Act;
(3) evidence that such institution has or can obtain significant
industrial cooperation in activities within the scope of this Act;
and
H.R. 4214-7
(4) the presence of an engineering program in mining or
minerals extraction that is accredited by the Accreditation
Board for Engineering and Technology, or evidence of equiva-
lent institutional capability as determined by the Committee.
(b) Notwithstanding the provisions of subsection (a), those colleges
or universities which, on the date of enactment of this Act, have a
mining or mineral resources research institute program which has
been found to be eligible pursuant to title III of the Surface Mining
Control and Reclamation Act of 1977 (91 Stat. 445) shall continue to
be eligible pursuant to this Act for a period of four fiscal years
beginning October 1, 1984.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
August 29, 1984
STATEMENT BY THE PRESIDENT
I have today signed H.R. 4214, a bill to establish a
State Mining and Mineral Resources Research Institute program,
and for other purposes.
As its title suggests, the bill would reauthorize the
Department of the Interior's program for funding State mining
and mineral resources research institutes. In order to assist
in the operation of this program, the bill also continues the
Committee on Mining and Mineral Resources Research, which was
originally established in 1977 under the Surface Mining
Control and Reclamation Act to advise the Secretary of the
Interior on matters relating to mining and mineral resources
research. H.R. 4214 would require the Committee to assist in
the determination of organizations eligible for funding under
this Act.
I am concerned that since two of the current Committee's
members were appointed by private organizations, the
requirement to assist in determining eligibility for Federal
funds could raise fundamental constitutional questions. The
Attorney General has advised me that this vesting of authority
to assist in the determination of eligibility for Federal
funds in a Committee that includes members appointed by
private organizations could constitute a violation of the
Appointments Clause, Article II, Sec. 2, cl. 2, unless the
responsibilities of the Committee are given a careful
narrowing construction. The Supreme Court has decided that
all persons "exercising significant authority pursuant to the
laws of the United States,' must be appointed by the
President. Buckley V. Valeo, 424 U.S. 1, 126 (1976). For
this reason, I am signing the bill based on my understanding
that this Committee, which includes members appointed by
private organizations, would only perform advisory functions.
The research goals which this bill seeks to further must
be carried out consistent with the Constitution. Accordingly,
I have directed the Secretary of the Interior to seek the
advice of the Attorney General in implementing this Act to
ensure that it does not transgress constitutional limitations.
Finally, I must reiterate my concerns that the mineral
institute progràm is no longer an appropriate use of Federal
funds, given changes in the mineral industry since the
program's inception in 1977 that have reduced the demand for
technical personnel. My Administration will continue to
propose reductions in Federal funds for the program, in the
belief that it should be funded primarily by State and private
sources.
# # # #