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Ronald Reagan Presidential Library
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This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Testimony Approval
(06/13/1984-06/30/1984)
Box: 54
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THE WHITE HOUSE
WASHINGTON
June 18, 1984
MEMORANDUM FOR CONSTANCE BOWERS
LEGISLATIVE REFERENCE DIVISION
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL 228 TO THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
Testimony of Carol E. Dinkins Concerning
Amendments to the Coastal Zone Manage-
ment Act (H.R. 4589) on June 26, 1984
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective.
ID
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o . OUTGOING
H - INTERNAL
I - INCOMING
Date Correspondence
Received (YY/MM/DD)
1
Name of Correspondent:
Maria Walicki
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Testimony of Caral Dinkins concerning
Amendments to the Coastal Zone Management
Act CHR 4589) on June 26, 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
Cuttom
ORIGINATOR 84,06,18
Referral Note:
CUAT 18
&
8406118
384,06,25
Referral Note:
COB
-
Referral Note:
Referral Note:
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action
A Info Copy Only/No Action Necessary
A Answered
C Completed
c - Comment/Recommendation
R Direct Reply w/Copy
B . Non-Special Referral
S Suspended
D - Draft Response
$ 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
U.S. Department of Justice
Office of Legislative and
Intergovernmental Affairs
Office of the
Washington, D.C. 20530
Assistant Attorney General
June 15, 1984
To: Constance Bowers
Legislative Reference Division
Office of Management & Budget
From: Maria Walicki
Office of Legislative and
Intergovernmental Affairs
Enclosed is the statement of Carol E. Dinkins,
Deputy Attorney General, before the House
Merchant Marine and Fisheries Committee,
concerning H.R. 4589, a bill to amend Section
307 (c) (1) of the Coastal Zone Management Act,
on June 26, 1984. Please contact me as soon
as possible regarding clearance of this
statement. I may be reached at 633-3916.
Enclosure
cc: Fred Fielding
Counsel to the President
DRAFT
JUN 14 1984
TESTIMONY OF
CAROL E. DINKINS
DEPUTY ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
ON
AMENDMENTS TO THE
COASTAL ZONE MANAGEMENT ACT (H.R. 4589)
BEFORE
THE
HOUSE MERCHANT MARINE AND FISHERIES COMMITTEE
OF THE
UNITED STATES
HOUSE OF REPRESENTATIVES
June 26, 1984
DRAFT
JUN 14 1984
INTRODUCTION
Mr. Chairman, members of the Committee, I am pleased to be
here today to testify on H.R. 4589, a bill which has been introduced
to amend Section 307 (c) (1) of the Coastal Zone Management Act.
This particular area of federal mineral leasing has been of
continuing interest to me, both in my capacity as a federal
policymaker and as an attorney. Moreover, I am happy to speak
for the Administration as a whole on this issue today. The
importance of the OCS program can not be overstated in view of both
of our continuing need for energy reserves and the substantial
contribution the OCS leasing program makes in generating revenue
for the federal treasury.
The Administration is strongly opposed to this legislation
for four basic reasons: (1) there is no need to bring OCS lease
sales under the consistency provision because the consultation
process which was established by the OCSLA is sufficient and is
working well; (2) the language of H.R. 4589 would not, in fact,
accomplish its stated purpose, i.e., applying the consistency
provision to the lease-sale itself; (3) the bill's attempt to
transplant the National Environment Policy Act or NEPA standards
into an entirely different process, such as the CZMA, will only
encourage additional conflicts between the states and the federal
government and is guaranteed to also create litigation; and (4)
even though we believe the bill won't bring OCS leasing under
the CZM provisions, it will unintentionally apply to affect many
other federal activities -- a result not intended by the Congress
or this committee.
JUN 14 1984
DRAFT
- 2 -
CURRENT OCS LEASING PROCESS PROVIDES FOR CONSULTATION
WITH THE COASTAL STATES/THE AMENDMENTS ARE UNNECESSARY
The proposed amendments to the Coastal Zone Management
Act (CZMA) are not necessary to assure consultation between the
Federal government and the states with respect to OCS leasing.
In fact, the amendments would frustrate the consultative proce-
dures which are already in place, and which have been successfully
utilized to assure an appropriate balance of Federal and state
interests in OCS leasing.
Under Section 19 (a) of the Outer Continental Shelf
Lands Act (OCSLA) both governors and representatives of local
governments are entitled to make "recommendations" to the Secre-
tary of the Interior concerning the "size, timing and location" of
OCS leasing. The Department of Justice believes that Section 19
grants to the coastal states all the power they claim to seek-
under the CZMA short of an unrestrained veto. This process has,
in fact, been working as is demonstrated by the resolution of
differences involving California and Alaska in recent OCS sales.
Under Section 19, the Secretary must accept the governor's
recommendation and may accept the recommendations of local governments,
unless he determines that they do not provide for reasonable balance
between national interests and the well-being of the citizens of the
affected states. (OCSLA Section 19(c), 43 U.S.C. Section 1345(c).)
If the Secretary of Interior does make a determination not to
accept the recommendations of the local governments, he must
communicate to the governor in writing the reasons for this
JUN 14 1984
- 3 -
DRAFT
decision, after an opportunity for consultation to implement
alternatives that would result in a reasonable balance between
these interests. Section (d) also provides explicit procedures
for judicial review of the Secretary's action upon these recommen-
dations, making it "final" unless found to be "arbitrary or
capricious."
Section 19 of OSCLA was enacted in 1978 at the urging
of the states, which recognized that the CZMA was not a suitable
vehicle for state/federal coordination with respect to OCS-leasing
decisions. *On the basis of the testimony from the states, Congress
adopted this section "[to] ensure that the Secretary gives thorough
consideration to the voices of responsible regional and local
1/
state officials in planning OCS leasing development. " However,
Congress made clear that it was adopting the specific procedures
of Section 19 which give "final authority to the Secretary because
it "did not believe that any state should have a veto power over
the OCS oil and gas activities.
We believe that the consultation process has been
working effectively. For example, Governor Deukmejian of California
recommended that Interior delete some of the tracts from OCS Sale
73 nearest to shore in order to protect beaches, estuaries, and
other coastal resources. He also recommended that the Secretary
impose stipulations on the remaining tracts related to air quality,
1/ S. Rept. No. 284, 95th Cong., 1st Sess. 78 (1977).
2/ Id.
VON 14.00 1904
- 4 -
DRAFT
fishing operations and the transport of oil by pipeline. The
result of this consultation was a Memorandum of Agreement (MOA)
between California and Interior providing for the deletion of 21
near-shore tracts and the adoption of lease stipulations sought
by California. On signing the MOA, California stated that
these modifications would "accomplish the remaining balance
between production of needed oil and gas and protection of our
valuable environmental resources. Similarly, Governor Sheffield
of Alaska has had several discussions with Interior Secretary
Clark over the lease sale schedule for Alaska and the deletion of
blocks from proposed sale areas. Additionally, some of these
mitigation measures were adopted for past sales in response to
requests from the Governor pursuant to Section 19 of OCSLA.
The Department of the Interior has previously testified
before this committee that it is currently developing a procedure
requiring direct contact between the managers of the regional
OCS offices and the representatives of affected states to identify
relevant issues and seek technical solutions prior to formal
4/
Section 19 consultation process. As Interior noted, increased
importance has been placed on early and complete consultation
at the outset of preparing Environmental Impact Statements
3/ Letter from G.W. Duffy, Secretary of Environmental Affairs
to James Watt, Secretary of the Interior, dated October 6, 1983.
4/ Testimony of Department of the Interior Before the House Merchant
Marine and Fisheries Committee, Subcommittee on Panama Canal/Outer
Continental Shelf, April 25, 1984.
JUN 14 1984
- 5 -
DRAFT
(EIS's), including the reinstitution of public scoping meetings.
More public hearings are planned and the review period has been
expanded to 60 days to allow for a more extensive and complete
public review of the draft EIS. Finally, Interior has indicated
that at the "Call for Information" stage, which is very early in
the OCS planning process, states are being asked to identify
anticipated future Section 307(c)(3) conflicts between the state
CZM programs and post-lease oil and gas activities. The information
provided by the states will be fully analyzed throughout the
pre-lease process in an attempt to resolve any outstanding issues
prior to the sale.
We believe that, given these formal and informal consul-
tation processes, it is unnecessary to require consistency at the
lease-sale stage of the OCS process. The procedures that must
be followed in achieving consistency at the subsequent exploration
or development/production stages are clear and adequately protect
a state's coastal zone. An OCS lessee must submit a plan of
exploration for approval, or later a plan of development and
production which must certify to the state CZMA agency that its
activities, insofar as they affect land or water uses in the
coastal zone, will be conducted in a manner consistent with the
state program. At that time, the state is empowered either to
agree or disagree with the certification and, if it disagrees,
to suggest alternative means by which consistency can be achieved.
If the state decides that the operations are not consistent and
cannot be made so, the lessee can appeal to the Secretary of
JUN 14 1984
- 6 -
DRAFT
Commerce. The Secretary of Commerce may override the state's
objection based on the finding that the plan is consistent with
the objectives of the CZMA or is in the national interest. (The
Committee should take note of the fact that the Section 307(c)(3)
review process has been working well. For example, as of March
1984, the California Coastal Commission had received 98 Plans of
Exploration (POE's) and 7 Development and Production Plans (DPP's).
Concurrences were given to 89 of the 98 POE's and 6 of the 7
DPP's.
Finally, it cannot be said that these amendments are
necessary to assure adequate environmental protection of the
coastal zone. There is a full range of federal environmental
laws, such as the National Environmental Policy Act, the Endangered
Species Act, and the Clean Water Act, which apply to both state
-
coastal waters and to activities on the federal OCS. OCS activities
must meet these standards as Congress has defined in 74 sets of
federal regulations in achieving an appropriate balance between
industrial activity and environmental protection. As John Byrne
(Administrator of the National Ocean and Atmospheric Administra-
tion (NOAA)) stated before this committee on March 27, 1984,
the CZMA does not exist in a vacuum. There are ample opportunities
for constructive and meaningful state/federal collaboration since
the environmental and resource-management laws are administered
together. NOAA itself has demonstrated its intention to assure
that the state/federal consultation process works effectively.
For example, NOAA is supporting a comprehensive state/federal
on 17 1509.
DRAFT
- 7 -
study of the experience gained to date in applying the federal
consistency provisions. It is hoped that this study will identify
and document problem areas and examples of successful implementation
of the consistency review requirements, and form the basis for
reasoned revisions to the CZMA or the implementing regulations.
As you probably are aware, although the CZMA became law in 1972,
most of the state programs were not approved by the Department
of Commerce until the late 1970's and early 1980's.
Accordingly, the coastal states already have ample
opportunity to protect their interests and limit OCS development
off their coasts. The proposed amendment to Section 307 (c) (1) is
therefore not needed to protect their coastal zones.
II. THE PROPOSED AMENDMENTS TO THE CZMA WOULD NOT MAKE
OCS LEASE SALES SUBJECT TO SECTION 307 (c) (1)
CONSISTENCY REQUIREMENTS.
-
As the Supreme Court stated, the legislative history of
Section 307 (c) (1) discloses that Congress did not intend the
section to reach OCS lease sales. The "directly affecting"
language was aimed primarily at activities conducted or supported
by federal agencies on federal lands physically situated in the
coastal zone but excluded from the zone as formally defined by
the CZMA.
Section 307 (c), the court noted, contains three inte-
grated parts: Section 307 (c) (1) refers to activities "conduct[ed]
or support by a federal agency. Section 307 (c) (2) covers
"development projects undertak[en]" by a federal agency. Section
JUN 1 1007
- 8 -
DRAFT
307 (c) (3) deals with activities by private parties authorized by
a federal agency's issuance of licenses and permits. Thus, the
application of the consistency provisions of the CZMA depend upon
the type of federal action involved.
The proposed CZMA Amendments, however, only address
changes in the terms of Section 307 (c) (1) and not Section 307 (c) (3),
the section which the Court found pertinent to OCS lease sales.
Furthermore, the proposed Amendments only propose changes of the
terms "directly affecting the coastal zone" and "maximum extent
practicable" in Section 307 (c) (1). They do not attempt to alter
the meaning of activities conducted or supported by federal
agencies. The Court held, however, that OCS lease sales did not
fall within that category of activity under the statute. Put
simply, the Court ruled that OCS lease sales were not "activities"
-
within the meaning of Section 307 (c) (1), and because the proposed
Amendments do not explicitly change that ruling, the proposed
changes to Section 307 (c) (1) would appear to be inapplicable to
OCS lease sales.
III. THE AMENDMENTS WILL RESULT IN ADDITIONAL
LITIGATION BY INCORPORATING THE NEPA
"SIGNIFICANT" STANDARDS.
I would now like to turn to the specific language of
the proposed amendments and explain to the Committee why we are
so concerned with the present proposal. I believe that any action
this committee takes regarding the CZMA should be based upon
three goals: one, providing greater certainty to insure an
effective program of federal consistency where consistency is
required; two, minimizing the opportunities for federal/state
JUN 14 1984
DRAFT
- 9 -
conflict; and, three, decreasing the likelihood of recourse to
litigation with its attendant potential for disruption.
Unfortunately, the proposed amendments, I believe, would not
serve these goals.
Specifically, let us examine the proposal to substitute
the term "significantly" for the term "directly" as the criterion
for what types of effects will trigger the federal consistency
requirement.
-
To the extent that the use of the term "significantly"
is intended to incorporate NEPA standards into the CZMA, our
experience in litigating both NEPA and CZMA cases leads to the
firm conclusion that this approach is extremely unwise. Contrary
to the views of some, the definition of "significantly" is not at
all clear cut. The CEQ regulations provide no firm guidance!
And although NEPA has been in the statute books for over a decade,
the issue of significance has been and continues to be the most
frequently litigated issue in NEPA. Thus, no greater certainty
in the application of the program is achieved by use of this term.
Indeed, the interpretation of "significant effects" under NEPA would
differ from that under the CZMA amendments since NEPA effects are
considered in the context of the "quality of the human environment",
while under the CZMA amendments they would be considered in the
context of the "natural resources of, ,land or water uses in, the
coastal zone." As a result, greater uncertainty should be
expected.
To the extent that adoption of the term "significantly"
is an attempt to broaden the existing threshold standard of
JUN 14 1904
- 10 -
DRAFT
"directly", in order to reach indirect, remote and speculative
consequences of federal action, the actual result will be a
greater degree of uncertainty and a far higher potential for
federal/state conflict. Let me explain why.
In 1972, Congress sought to avoid conflict by having
federal agencies review state management programs before they
became effective. Requiring federal agencies to achieve consistency
with state management plans could only work if the federal agencies
knew what was required of them, and when those requirements were
applied in advance of plan approval.
In introducing the current measure, the Chairman of
the Subcommittee suggested that use of the term "significantly"
would allow "case-by-case decisions, based upon the context and
intensity of impacts." However, any scheme that does not provide
clear guidance for when consistency is required and results in
case-by-case determinations fosters uncertainty, threatens federal/
state cooperation and virtually guarantees litigation.
Nor will court decisions from the inevitable litigation
provide the direction and guidance that is absent in this proposed
measure. Many of the state coastal management programs are
extremely general and vague. The courts will lack the standards
necessary to decide consistency issues unless they simply defer
to whatever the coastal agency says that its plan requires.
For those reasons, based especially upon our years of
struggling with those issues in court, = offer no optimism to the
committee that the proposed amendments will even come close to
- 11 -
DRAFT
their hoped-for potential. Because of the inherent difficulty In
assuring what the indirect, remote or speculative impacts of
federal activities may be, this amendment, by requiring all agencies
to guarantee full consistency for all such activities, may spawn
a generation of divisive litigation that could cripple federal/state
relationships.
IV. THE PROPOSED CZMA AMENDMENTS WILL AFFECT MANY
OTHER FEDERAL ACTIVITIES OTHER THAN THE OCS
LEASING PROGRAM.
The proposed amendments are not narrowly circumscribed
to only OCS lease sales but rather would affect a broad range of
federal activities. As we have indicated, our understanding is
that this language is intended to incorporate the standard of
significance developed under NEPA. The committee should realize
that the term "significantly affecting" has no universal meaning
-
or application and has been interpreted broadly by many courts.
Incorporation of NEPA standards into the CZMA will be destructive
of both statutory schemes.
As we interpret the bill, any activity which is identified
in an EIS as one which could significantly affect "the natural
resources of, or land or water uses in, the coastal zone" would
require a consistency determination under Section 307(c)(1). In
the absence of any universal meaning for the term "significantly,"
and in view of the fact that this term will be interpreted by 28
different states with 28 different CZMA programs, it is obvious
that these amendments could have far-reaching consequences not
intended by the Congress.
JUN 14 1984
DRAFT
- 12 -
The amendments have the potential for adversely impacting
a wide variety of programs. By incorporating the definitions in
the proposed bill together with the existing regulatory language,
the following result is obtained: any function performed by or on
behalf of the federal agency which significantly affects the
natural resources of, or land or water uses in, the coastal zone
shall be conducted or supported in a manner which is fully con-
sistent with an approved state CZM program. The federal function
affected would not necessarily be limited to those having a primary
or an intended effect only in state coastal zones. In addition,
the committee should note that many approved state CZM programs
contain general statements of policy which are administered on a
case-by-case basis by state agencies which "interpret" these programs.
As a result, the proposed bill may effect a transfer of discretionary
authority over federal functions to state coastal zone agencies
which would exercise control through interpretation of general
policy statements contained in an approved state CZM program.
For example, consider the following circumstances under
which opponents of various federal actions could interpose a
demand for a consistency determination by relying on this
committee's efforts to encompass remote indirect and speculative
impacts within a consistency determination. They include: coal
leasing programs by the Department of the Interior if the coal
may possibly be transported by coal slurry pipeline to a coastal
port (discharge of coal wastewater affects the coastal zone);
DRAFT
- 13 -
federal approval of rate changes for bulk commodities potentially
affording one mode of transportation a competitive edge over
another (favorable barge rates may shift traffic from railroads
causing growth in coastal maritime facilities); resolution by
the Department of State of the North Atlantic Boundary Dispute
with Canada (relinquishment of United States' possessive claims
to a portion of its disputed seabed which would allow Canadian
authorities to institute all manner of activity in that area,
including OCS leasing, with potential effects on Maine's coastal
zone); FAA regulations governing planning grants for airport
improvement or extension projects (potential construction in a
coastal zone arising from changes in the airport operation in
places such as Boston, J.F. Kennedy, La Guardia, Philadelphia,
Norfolk, San Francisco, etc.). The number of such activites
which are unrelated to OCS leasing but which could be affected by
the CZMA amendments is unlimited.
Congress should realize that states, or others opposed to
certain federal activities, are likely to insist that virtually any
impact identified in an EIS can be interpreted as a significant
one, and therefore would fall within the consistency requirements
of Section 307 (c) (1). As we have indicated, it will take years of
litigation to define the term "significantly" as it applies to the
CZMA. Similarly, it has taken years of litigation to define the
term in the NEPA context. (For example, since fiscal year 1976,
the average number of NEPA cases has been 323 per year.) Such
litigation within the context of the CZMA could have an even greater
JUN 14 1984
DRAFT
- 14 -
impact on federal decisionmaking including the orderly development
of the OCS, and of course, our nation's energy security.
CONCLUSION
The Congress and the committee must remember that the
benefits derived by the United Sates from OCS mineral leasing
activities are national in scope. For example, revenues generated
from the OCS leasing program are the second largest source of
income after the federal income tax. The federal government has
received more than $59 billion in direct revenues from OCS leasing,
production and rentals. Moreover, the amount of petroleum reserves
produced so far has not been slight -- more than 58 trillion cubic
feet of natural gas and more than six billion barrels of crude oil
have been produced.
-
The continued production of offshore oil and gas is
essential to the future security of our nation. Offshore oil and
gas is widely distributed, not only to the coastal states, but to
commercial, residental, and industrial consumers across the
country. Thus, residents of the inland states also have an
interest in the production of OCS oil and gas just as those do
who live in the coastal states.
Vesting effective decisional authority in coastal states,
as these amendments would do, would lead to the striking of a
balance between national and state interests different than that
originally envisioned by the Congress when it passed OCSLA. These
JUN 14 1984
DRAFT
- 15 -
lmendments could effectively delay U.S. energy production for years
to come, by increasing our economy's vulnerability if imported oil
supplies are disrupted and delaying the orderly development of our
frontier regions. Moreover, these amendments will affect and
disrupt many other federal activities unrelated to the OCS leasing
program. This is contrary to the congressional intent of
five years ago, when Congress passed the 1978 OCSLA to permit
"expedited exploration and development of the [ocs] in order to
achieve national economic and energy policy goals, ensure national
security, reduce dependence or foreign resources, and maintain a
favorable balance of payments in world trade" (43 U.S.C. $1802(1)).
The adoption of the proposed amendments would certainly negate the
intent of this important congressional policy.
-
THE WHITE HOUSE
WASHINGTON
June 27, 1984
MEMORANDUM FOR CONSTANCE J. BOWERS
LEGISLATIVE ANALYST
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS
ASSOCIATE TO THE PRESIDENT
SUBJECT:
Draft Reports From the Department of the Navy
and the Department of Energy on H.R. 4589 and
S. 2324 -- Coastal Zone Management
Counsel's Office has reviewed the above-referenced draft
reports, and finds no objection to them from a legal
perspective.
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
SPECIAL
June 26, 1984
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Legislative Liaison Officer
Department of Commerce
Department of Justice
Environmental Protection Agency
Department of Energy
Department of Agriculture
Department of the Interior
Council on Environmental Quality
Department of Transportation
Department of Defense
SUBJECT:
Draft reports from the Department of the Navy and
the Department of Energy on H.R. 4589 and S. 2324 --
Coastal Zone Management.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
A response to this recuest for your views is needed no later than
COB -- June 28, 1984
Questions should be referred to Constance J. Bowers (395-3890),
the legislative analyst in this office.
James C. Murr for
Assistant Director for
Legislative Reference
Enclosures
cc:
Scott Gudes
Dave Allen
Randy Davis
Norm/Hartness
Margaret Carpenter
Ken Allen
Charlie Kolb
Ken Glozer
Jim Mietus
John Roberts
Sherry Fox
Dave Gibbons
E WITH
DEPARTMENT OF THE NAVY
OFFICE OF LEGISLATIVE AFFAIRS
WASHINGTON. D. C. 20350
IN REPLY REFER TO
LA-63:1rs
THE
Dear Mr. Chairman:
The Department of the Navy, on behalf of the Department of the Defense, opposes
H.R. 4589, 98th Congress, a bill "To amend the Coastal Zone Management Act of
1972 regarding Federal activities that are subject to the Federal consistency
provisions of the Act, and for other purposes," and S. 2324, 98th Congress, a
bill "To amend the Coastal Zone Management Act of 1972 regarding activities
directly affecting the coastal zone," as presently drafted. Both bills attempt
to overcome recent Supreme Court pronouncements concerning the limits of state
authority under the Coastal Zone Management Act (CZMA) of 1972 to influence the
Department of Interior's oil and gas lease sales on the Outer Continental Shelf.
As a major user and principal resident of this nation's coastal region, the
United States Navy cooperates conscientiously with state and local officials and
other federal agencies to protect and enhance the resources of the coastal zone.
In the vast majority of instances the Navy has found that acceptable agreements
can be reached which recognize the importance of the Navy mission and the
significance of a state's coastal zone. These agreements are based on a
recognition by all parties that under the existing statute and regulations, the
Navy has the responsibility to make the initial threshold determination as to
what activities "directly affect" the coastal zone. In addition, the CZMA,
16 U.S.C. § 1451 et seq., specifically excludes federal lands from the impact of
the Act's structure.
The Navy's experience to date with the existing statute and regulations has been
generally positive. Most states have recognized the Navy's need to operate in
the coastal zone, while the Navy has worked to assure compliance with state
coastal management plans to the fullest extent practicable. H.R. 4589 and
S. 2324 would destroy this inter-governmental cooperation by undermining the
delicate, but fair and effective, balance of state and federal interests found
in Section 307 (c) (1) of the CZMA for managing federal activities directly
affecting state coastal zones.
H.R. 4589 and S. 2324 are worded and structured differently, but both uncermine
the balanced approach found in the CZMA. That approach requires federally
supported activity directly affecting the coastal zone be conducted
consistent, to the maximum extent practicable, with state plans for managing the
coastal zone. H.R. 4589 and S. 2324 requires instead that federal activities,
with certain exceptions, must be fully consistent with state management plans.
This proposed standard of full consistency fully subordinates federal interests
to state interests. The complete subordination of federal interests
fundamentally restructures the ordering of state and federal interests under the
CZMA to the extent that the proposed legislation is inconsistent with the
Congressional finding that the key to coastal zone management is the full use of
state authority in cooperation with federal and other interests (Section 302 (i)
of the CZMA). Further, without directly repealing the existing provision of
law, the proposed amendments would render meaningless the Act's present
exclusion of federal lands.
Under H.R. 4589 such elemental Navy activities as port visits, training in
operation areas, amphibious landings on federal reserves, and weapons testing
could be subject to the control of state authorities if these officials
determined the activities produced identifiable physical, biological, social or
economic consequences in the coastal zone or initiated a chain of events likely
to result in such consequences. S. 2324 would require these activities be
consistent only to the maximum extent practicable if necessary for national
security, but even that formulation raises the real possibility that Navy
activities would be suspended while litigating whether the activity was one that
was "necessary for reasons of national security." Clearly, the enactment of
H.R. 4589 or S. 2324 would have an unacceptable impact on Navy operations.
The Navy has reviewed the recent Supreme Court decision in Secretary of the
Interior V. California, and has concluded that the opinion does not
significantly modify the existing relationship between states and the Navy. On
the contrary, it appears that the decision adds clarification to existing
regulations which have, to date, not been fully understood by states and federal
agencies, such as the right of federal agencies to establish the threshold of a
significant direct affect on the coastal zone. The Supreme Court decision may
indeed substantially modify oil and gas leasing requirements under the Coastal
Zone Management Act; however, if Congress intends to correct a perceived error
on the part of the Court regarding OCS oil and gas leasing, it is Navy's
position that H.R. 4589 goes far beyond accomplishing this intended purpose. In
fact, rather than support H.R. 4589, which Navy believes to be premature and far
reaching in scope, we would recommend that any changes in the CZMA consistency
provisions await an analysis based on experience with the existing statute and
the NOAA regulations, which may be amended in light of the Supreme Court
decision. This could be accomplished with a view toward CZMA re-authorization
in 1985.
Not only do current regulations provide adequate safeguards to states in the
area of oil and gas leases, such as Section 307 (c) (3) (b), relating to the need
for a consistency determination for exploration, development and production of
OCS areas subsequent to lease sales, but the Navy believes that Congress has
passed numerous other pieces of legislation which also provides states
protection against uncontrolled federal development. The Federal Water
Pollution Control Act, Federal Air Pollution Control Act, Resource Conservation
and Recovery Act all have waivers of sovereign immunity requiring the federal
agency to comply with state and local laws relating to those particular areas of
concern. The Federal Endangered Species Act and National Environmental Policy
Act are further examples of federal statutes that provide a viable handle to
states that believe a federal agency is proposing an action which will
significantly impact a valuable state resource, regardless of its location.
Another problem arises with the expansion of the term coastal zone to include
activities "whether within, or landward or seaward of, the coastal zone." This
expansion of the area which potentially is directly affected by an activity of a
2
federal agency is simply too broad. It would allow states to become planning
partners with the Navy for proposals inland and seaward of the coastal zone
without any limit on distance. This becomes even more possible if we consider
the bills' proposed definition of directly affects: "produces identifiable
physical, biological, social, or economic consequences in the coastal zone."
Almost any activity that any federal agency undertakes will produce a social or
economic consequence in a states coastal zone, especially when the coastal zone
is expanded to include areas landward and seaward of the coastal zone for an
undefined range.
It is virtually impossible to predict the increased cost of operations in the
event that either of these proposed amendments become law, though it can be
anticipated to be great in terms of administrative effort, manpower, time, and
dollars. Most importantly, the proposed amendments' broad scope would provide a
fertile breeding ground for endless and costly litigation over virtually every
detail of Navy operations in coastal areas.
The Department of the Army has requested that this legislative report present a
paragraph reflecting the specific views of the Army concerning H.R. 4589 and
S. 2324, with respect to the Army's military activities nationwide. The
potential impact of these bills on the Department of the Army's civil works
responsibilities will be addressed in separate Army legislative reports. The
Department of the Army operates numerous military bases, reservations, and
activities located in the coastal zone and elsewhere within states with approved
CZMA plans. The Army believes that enactment of either of the subject bills
could prove extremely disruptive to those facilities and to important Army
missions, could be extremely expensive, and would constitute an unacceptable
administrative burden. The Department of the Army agrees with the criticisms of
the subject bills presented in the Navy's report, and joins the Navy in opposing
enactment of each bill.
For the Secretary of the Navy.
Sincerely,
The Honorable Walter B. Jones
Chairman, Committee on Merchant
Marine and Fisheries
House of Representatives
Washington, D. C. 20515
Department of Energy
Washington, D.C. 20585
DRAFT
Honorable Walter B. Jones
Chairman, Committee on Merchant
Marine and Fisheries
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
On May 3, 1984 the Oceanography Subcommittee marked up and
referred for full Committee action H.R. 4589, a bill to
amend the Coastal Zone Management Act's federal consistency
provisions. The apparent intent of H.R. 4589 as amended is
to include the sale of federal leases on the Outer Continental
Shelf (OCS) within the activities that must be "fully consistent"
with the Coastal Zone Management (CZM) plans of affected
states.
The Department of the Interior (DOI) has principal responsibility
for managing the leasing of energy minerals on the Outer
Continental Shelf, including the holding of lease sales and
the issuance of leases. DOI's previous correspondence has
detailed the ways in which H.R. 4589 will affect adversely
that responsibility. In a recent letter to your Committee,
DOI opposed this legislation stating "the legislation
would be an unwise, overly broad interference with the
Federal Government's pursuit of important national objectives."
He concur.
The Department of Energy also is concerned with the production
of oil and gas on the OCS. Accordingly, this report addresses
that issue. It deals also with the possible adverse impacts
of H.R. 4589 on the Strategic Petroleum Reserve (SPR) program.
More generally, it discusses our concerns about the potential
serious adverse impact of the legislation on our national
energy policy goals.
H.R. 4589 would impose regulatory burdens on the OCS lease
sale process without enhancing the ability to ensure environmen-
tally sound development of the Coastal Zone; it would disrupt
the operation of the SPR, frustrating our efforts to achieve
our energy policy goals and increasing the vulnerability of
the United States in the event of an energy supply disruption.
These impacts are explained below.
DRAFT
- 2 -
The central goal of the National Energy Policy, as expressed
in the President's 1983 National Energy Policy Plan, is to
foster an adequate supply of energy at reasonable costs.
TWO basic strategies to achieve that goal are to promote a
balanced and mixed energy resource system, and to minimize
federal control and involvement in energy markets while
maintaining public health, safety, and environmental quality.
The Federal Government is implementing these strategies in a
variety of ways, including several programs to encourage the
development of domestic energy resources on public lands,
among them the Outer Continental Shelf.
Domestic production currently satisfies only two-thirds of
the annual oil demand in this country. Currently we import
about 5 million barrels of oil a day at a cost of $50 million.
A major oil supply disruption could present a significant
threat to this Nation's energy security. One of our richest
sources of domestic energy is the Outer Continental Shelf,
estimated to contain over 25% of this country's future
petroleum resources. Since current domestic sources of oil
are being depleted rapidly, the timely exploration for and
production of oil and gas resources on the OCS are vital to
achievement of the national energy goal. Congress recognized
this when it enacted the Coastal Zone Management Act Amendments
of 1978, directing the Secretary of the Interior to *
establish
policies and procedures for managing the oil and natural gas
resources of the Outer Continental Shelf
...
[to expedite]
exploration and development of the Outer Continental Shelf
in order to achieve national economic and energy policy
goals, assure national security, reduce dependence on foreign
sources, and maintain a favorable balance of payments in the
world trade
The OCS contains some of the most fertile potential sources
of petroleum reserves in the United States today. The U.S.
Geological Survey estimates that 28 billion barrels of oil
remain to be discovered in the offshore U.S., over one-third
of the remaining domestic undiscovered recoverable oil
resources. A soon-to-be published study, completed recently
by the Department of Energy on the replacement cost of U.S.
crude oil, highlights the importance of that offshore oil.
DOE's study shows that our offshore oil may be the lowest
cost oil yet to be found in this country. Even though
offshore oil fields are more expensive to find than conventional
onshore fields, much of the offshore oil is likely to be
found in large accumulations, which are relatively inexpensive
on a per-barrel basis to develop and produce.
DRAFT
- 3 -
If access to offshore 011 resources is withdrawn, only less
attractive alternative sources for domestic oil production
will be available. Domestic oil production would be forced
to move toward increasingly hostile arctic environments, to
smaller on-shore fields (of which several hundred may be
needed to equal the reserves of one large offshore field) i
or to alternative fuels. In many cases having to extract
011 from these sources involves longer lead times due to
geological, climatological and/or technological factors.
These factors and the added time required to produce these
resources make them more expensive and less desirable domestic
substitutes for OCS oil.
The key to the OCS picture is timing. We have identified a
need for greatly increased offshore production by the end
of the century but the lead times needed to achieve that
production are on the order of 10 to 15 years and more.
That means leasing decisions must be made soon if the
necessary activity, i.e., the cycle of exploration, develop-
ment and production, is to get underway in time. H.R. 4589
not only would delay leasing decisions unnecessarily, but
might preclude development of these resources altogether.
Not only would H.R. 4589 impede the Nation's ability to
locate and develop its OCS resources, but it also could
obstruct the Department of Energy's efforts to comply with
its statutory mandate to fill expeditiously and drawdown as
needed the Strategic Petroleum Reserve. The proposed legislation
would greatly extend the scope of State review over the
development and operation of the Reserve. H.R. 4589 is SO
broadly worded that it could be read to permit a State to
review the activities of the Department not only on the
Coastal zone but at SPR sites. Even more significantly, the
bill could permit State interference with the operation of
those sites. This could result in significant limitations
on the drawdown of the Reserve in an energy emergency.
To ensure our Nation's energy security, we must allow private
industry access to the oil and gas resources of the Outer
Continental Shelf, and we must be able to draw upon the SPR
to respond rapidly in an emergency. Current safeguards are
working effectively to protect the coastlines of states
affected by OCS leasing. This legislation would merely add
layers of unnecessary regulation, thereby disrupting effective
systems in the Coastal Zone Management Act and other statutes
that balance state and federal objectives and promote
environmentally benign energy activities in the coastal zone.
H.R. 4589 would hinder these activities, resulting in potentially
DRAFT
- 4 -
disastrous energy consequences, both in terms of our long-
term oil supply capabilities and our short-term emergency
response capabilities. Moreover, all of the Reserve storage
sites have received permits from the relevant State agencies
and the managers of those sites coordinate extensively with
the States.
For the reasons stated the Department of Energy opposes
enactment of H.R. 4589. The Office of Management and Budget
has advised that from the standpoint of the Administration's
program, there is no objection to the submission of this
report for the Committee's consideration.
Sincerely,
CC: Honorable Gene Snyder
Ranking Minority Member
THE WHITE HOUSE
WASHINGTON
June 22, 1984
MEMORANDUM FOR CONSTANCE J. BOWERS
LEGISLATIVE ANALYST
OFFICE OF MANAGEMENT AND BUDGET
FROM:
ASSOCIATE COUNSEL 9122 TO THE PRESIDENT
JOHN G. ROBERTS
SUBJECT:
Testimony of Robert J. McManus and
Revised Testimony of Carol E. Dinkins
Concerning the Coastal Zone Management
Act (H.R. 4589) on June 26, 1984
Counsel's Office has reviewed the above-referenced
statements, and finds no objection to them from a legal
perspective.
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
SPECIAL
June 22, 1984
2 PIECES OF TESTIMONY - TOTAL
PAGES = 25
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Legislative Liaison Officer
Department of Commerce - Mike Levitt (377-4264
Ervironmental Protection Agency - Stead Overman (382-5414)
Department of Defense. - Werner Windus (697-1305)
Army Corps of Engineers - Gabe Rozsa (272-0032)
Department of Energy - Bob Rabben (252-6718)
Department of Agriculture - Rob Wilkins (382-1272)
Department of the Interior - - Norma Perry (343-6797)
Council on Environmental Quality
Department of Transportation - John Collins (426-4694)
Department of Justice - Jack Perkins (633-2113)
SUBJECT: Department of Justice and NOAA testimony, as revised to
reflect comments on earlier drafts, on H.R. 4589, Coastal
Zone Management.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
A response to this request for your views is needed no later than
4:00 p.m. - Friday, June 22, 1984 (no extension possible).
Questions should be referred to Constance J. Bowers (395-3890),
the legislative analyst in this office.
James USM C. Murr for
Assistant Director for
Legislative Reference
Enclosures
CC: Scott Gudes
Dave Allen
Randy Davis
Norm Hartness
Margaret Carpenter
Ken Allen
Charlie Kolb
Ken Glozer
Jim Mietus
John Roberts
Sherry Fox
Dave Gibbons
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
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Richard Darman
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Testimony of Carol Dinkins concerning the
Coastal zone Management ACA CH.R. 4589)
on dine 26, 1984
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CUHOU
ORIGINATOR 84,06,21
Referral Note:
CUAT 18
R 84,06,21
584,06,25
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5/81
THE WHITE HOUSE
WASHINGTON
June 26, 1984
MEMORANDUM FOR GREGORY JONES
LEGISLATIVE ATTORNEY
OFFICE OF MANAGEMENT AND BUDGET
FROM:
JOHN G. ROBERTS
OZR
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Justice Draft Testimony Concerning
S. 52 and H.R. 1647, Providing Mandatory
Sentences for Armed Career Criminals
Counsel's Office has reviewed the above-referenced
testimony, and finds no objection to it from a legal
perspective. The Department of Justice may want to consider
adding a reference to Lewis V. United States, 445 U.S. 55,
61 n. 5 (1980) to footnote 2 on page 6. The proposition
that a pending appeal of a predicate conviction does not
offset the usability of the conviction, even if the appeal
is successful, may seem extreme at first blush. The concept
was, however, specifically sanctioned by the Supreme Court
in the analogous area of possession of firearms by a convict
in the above-referenced footnote from the recent Lewis case.
ID
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
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Subject: Justice Draft Testimony concerning
sentences.,Par armed career criminals
5.52 andH.R. 1647, providing mandatory
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/ 7
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CURT 18
R 84,06,22
584,06,27
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COB
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S For Signature
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X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
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Completion Date = Date of Outgoing
Comments:
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5/81
U.S. Department of Justice
Office of Legislative and
Intergovernmental Affairs
Office of the
Washington, D.C. 20530
Assistant Attorney General
6/22/84
Greg Jones --
Attached is our draft testimony
for the June 28 hearing of the House
Subcommittee on Crime re career criminal
legislation. AAG Steve Trott of the
Criminal Division will be our witness.
CHC
Cary Copeland
CC: Fred Fielding
Counsel to the President
Mr. Chairman and Members of the Subcommittee, I am pleased
to be here today to present the views of the Department of
Justice on two bills which provide lengthy mandatory sentences
for armed career criminals. These bills are S. 52 as passed by
the Senate on February 23, 1984, and H.R. 1647, a bill identical
to S. 52 as it was originally introduced.
The subject of federal prosecution of persons with two or
more robbery or burglary convictions who commit another one of
these offenses while armed with a firearm is a familiar one both
to the Department and to this Subcommittee. In the last
Congress, then Deputy Assistant Attorney General Roger M. Olsen
testified before you concerning H.R. 6386, a bill quite similar
to H.R. 1627. We took the position that the federal government
can lend some degree of assistance to the states in combatting
career robbers and burglars, provided that the problems inherent
in establishing concurrent federal-state jurisdiction in this
area can be resolved. That remains our position today. We are
not opposed to legislation creating federal jurisdiction over
armed robberies and burglaries committed by recidivist offenders,
although we think that the problems associated with concurrent
jurisdiction over these crimes are real and must be carefully
addressed.
In addition, I would emphasize that while we are willing to
accept some share of the load in prosecuting career robbers and
burglars, we do not regard legislation allowing us to do this as
- 2 -
having a particularly high priority. In our view, such legisla-
tion does not approach the same importance in the fight against
crime as most of the provisions in S. 1762 and other bills that
have passed the Senate as part of the Administration's anti-crime
package. We think that what is most urgently needed is compre-
hensive, effective reform of such major areas of the criminal
justice system as the sentencing, labor racketeering, bank
secrecy, bail and forfeiture laws, rather than the sort of
piecemeal tinkering with specific statutes that is done in S. 52
and H.R. 1627. Moreover, 1t bears mention that, of the fifteen
violent crime proposals in Title X of S. 1762, of which S. 52 is
not one, the Congress has thus far completed action on only one,
the proposal aimed at pharmacy robberies and burglaries. We
believe several of the remaining proposals contained in Title X
-- many of which we know are not within the purview of this
Subcommittee's jurisdiction -- are more important than the
matters addressed in S. 52 and H.R. 1627.
Turning to H.R. 1627, this bill sets out a new section 2118
in title 18 providing that any person who has already been
convicted of two felony robberies or burglaries and who commits a
third such offense in violation of either federal or state law
while armed with a firearm may be prosecuted in federal court. If
found guilty, he must be sentenced to imprisonment for at least
fifteen years or to life imprisonment. Regardless of the length
of the sentence, it may not be suspended or made probationary,
and the defendant would not be eligible for parole.
- 3 -
Our major difficulty with this bill is with proposed
subsection 2118(e) addressing the exercise of federal jurisdic-
tion which, because of its unusual wording, I have quoted below. 1
This subsection is apparently an attempt to overcome the Admini-
stration's chief problem with the version of this bill that was
passed in H.R. 3963 and S. 1688 in the last Congress. Those bills
would have allowed a state or local prosecutor to veto any
federal prosecution in his district even if the Attorney General
had approved prosecution. Such a restraint on federal prosecu-
torial discretion and delegation of executive responsibility
would have raised serious difficulties as well as possible
constitutional concerns. Although it is somewhat imprecisely
drafted, subsection (e) would apparently overcome any constitu-
tional difficulties by leaving the ultimate decision on whether
to seek a federal indictment to federal prosecutors. However,
since a case "lodged" in a state prosecutor's office may only be
considered for a federal indictment on the request or concurrence
1 Subsection 2118 (e) provides:
"(e) Ordinarily, armed robbery and armed burglary cases
against career criminals should be prosecuted in State court.
However, in some circumstances such prosecutions by state
authorities may face undue obstacles. Therefore, any such
case lodged in the office of the local prosecutor may be
received and considered for Federal indictment by the Federal
prosecuting authority, but only upon request or with the
concurrence of the local prosecuting authority. Any such
case presented by a Federal investigative agency to the
Federal prosecuting authority, however, may be received at
the sole discretion of the Federal prosecuting authority.
Regardless of the origin of the case, the decision whether to
seek a grand jury indictment shall be in the sole discretion
of the Federal prosecuting authority."
- 4 -
of the local prosecutor, it is not clear how the United States
Attorney's office would ever officially be made aware of such a
case if the state prosecutor did not request its consideration.
If federal authorities found out about such a case unofficially
they could still seek an indictment in spite of what the state
prosecutor might want, but the assertion of federal power in such
a manner is hardly conducive to good federal-state relations.
Moreover, there is, we submit, no rational basis for making even
an initial determination of whether the state (which nearly
always has jurisdiction over robbery and burglary) or the federal
government (which would be given jurisdiction over a limited
number of such cases under the proposed statute) should prosecute
turn on whether a state or federal agency investigated and
presented the case. The only justification for any federal
involvement in this area of traditional state responsibility is
to aid the states in certain unique situations. This necessi-
tates close coordination and cooperation between state and
federal investigators and prosecutors which can often best be
obtained by consultations and decisions on a case-by-case basis.
Accordingly, we recommend that subsection 2118(e) be deleted
and that a new provision be inserted in section four of the bill
expressing the intent of Congress that ordinarily no prosecutions
should be brought under this provision unless the appropriate
state or local prosecutor requests or concurs in federal prosecu-
tion. Since section four is non-jurisdictional in nature, this
language would not raise any of the constitutional problems
- 5 -
regarding a local prosecutor vetoing federal prosecution which I
have previously mentioned, and at the same time it would minimize
the risk of disrupting important federal-local law enforcement
relationships when prosecutions are brought under this statute.
In addition to our overriding concern with H.R. 1627 over
the way it allocates jurisdiction between the federal and state
prosecutors, we have several suggestions with respect to the new
armed robbery and burglary offense itself. First, subsection
2118(b) provides that the two prior felony convictions need not
be alleged in the indictment or proven at trial to establish an
element of the offense or the jurisdiction of the court. Rather,
subsection 2118(a) (2) provides that the prior convictions are to
be proven to the court at or before sentencing. We think that
the two prior felony convictions which provide the basis for
federal jurisdiction should be established prior to the attach-
ment of jeopardy. If verification of this jurisdictional element
is left until sentencing, a defective prior conviction, for
example, one in which the defendant did not have counsel at the
entry of a prior plea, could nullify the entire prosecution
because double jeopardy considerations would prevent retrial. We
would suggest the inclusion of language which would require the
prosecution to notify the court and the defendant prior to the
attachment of jeopardy of the prior convictions relied upon to
- 6 -
establish jurisdiction and mandate that the defendant contest the
validity of any such conviction prior to the attachment of
jeopardy. 2
Second, we think that the requirement that the firearm be in
the actual possession of the robber or burglar who has already
been convicted twice is too narrow. We believe that the statute
should reach such a recidivist robber or burglar while he or any
other participant in the offense is in possession of or has
readily available to him a firearm or an imitation thereof. Under
the provisions of the bill as drafted, a recidivist who planned
and organized a particularly life-endangering armed robbery or
burglary involving several persons could remove himself from the
reach of the new section simply by having his confederates carry
all the firearms. In certain types of robberies, such as of
banks, it is not uncommon for one or two persons to actually hold
the weapons while others remove the money. Since there is no
meaningful difference in their degree of culpability, all
participants who have the two prior convictions should be covered
by the new statute.
Third, section 2118(a) is silent on the question of how
federal jurisdiction, which is based on the possession of a
firearm, is to be shown. Presumably, it is intended as an
element of the offense which must be proven to the trier of fact,
inasmuch as the section's application is intended to be limited
2 The bill should make clear that the pendency of an appeal does
not affect the usability of the conviction, regardless of the
-N
outcome of the appeal.
- 7 -
to firearm-carrying recidivists, but the recidivism requirement
is explicitly not made an element. Thus, it would appear that a
conviction under section 2118(a) would require proof of posses-
sion of a firearm plus proof of all the elements of the state or
federal statute that the defendant is charged with having
violated. We would suggest that this point be specifically
addressed in the legislative history.
In addition, since the terms "robbery" and "burglary" are
not defined in the proposed statute, we would recommend that
either the bill or the legislative history make it clear that the
terms are to be given a generic rather than common law meaning
and include state offensesthat do not use the words "robbery" or
"burglary," such as a statute that proscribes criminal entry with
different gradations for the types of structures entered and the
act committed therein.
Finally, as we pointed out when we testified before the
Subcommittee on H.R. 6386 in the 97th Congress, we think that any
legislation in this area would benefit from Congressional
findings that armed robberies and burglaries have an adverse
effect on interstate commerce. See Perez V. United States, 402
U.S. 146(1971). While we think the Commerce Clause provides a
sustainable basis for asserting federal jurisdiction over the
traditionally state crimes of robbery and burglary, Congressional
findings would facilitate the bill's passing constitutional
muster.
- 8 -
S. 52
Turning to S. 52 as passed by the Senate, this bill elimin-
ates most of the problems I have noted with respect to H.R. 1627.
It provides that the two prior felony convictions necessary to
establish federal jurisdiction shall be proven to the court
before jeopardy attaches. It reaches the situation in which a
twice convicted robbery or burglary participates in another armed
robbery or burglary but does not himself handled the gun. And it
contains appropriately broad definitions of the terms "robbery"
and "burglary."
Most significantly, S. 52 solves the problems associated
with concurrent federal-state jurisdiction over third-time
robbers and burglars by making the new section 2118 applicable
only where the charged third-time robbery or burglary offense can
itself be prosecuted in a court of the United States. In effect,
while section 2118 does set out a new offense, it would actually
operate as an enhanced sentencing statute for personíwho have two
prior state or federal robbery or burglary convictions and who
are involved in another armed robbery or burglary that is a
violation of a federal statute such as robbery in the special
maritime and territorial jurisdiction (18 U.S.C. 2111), robbery
of federal property (18 U.S.C. 2112), robbery or burglary in the
Indian country (18 U.S.C. 1153), or bank or postal robbery or
burglary (18 U.S.C. 2113-2115). Thus, the coverage of S. 52 as
passed 18 considerably narrower than as introduced. It would not
-
- 9 -
nate, this bill to H.R. elimin- 1627. to
on over third-time state robberies and
ls of the sponsors of S. 52 and
1th respect necessary
art of my testimony, the Department
convictions De provenuation to the in in another which a
armed
ch an expansion, although we
5 directly concerned with law
:s participates the the gun. "robbery" And 1t
ch as the National District
to the concept of extending
nimself I initions of the terms associated
'ries and burglaries. Indeed,
ice, prosecutors, and the
<<<<<<<<<<<<<<<<<<<<<<<<< <<<<<<<<<<<<<<<<<<<<<<<<< the can
1 by even the most
'his obvious fact is the
2 :ing the new robbery or States. would
of federal jurisdic-
great significance
ird-time of the United offense, it personswho and have who two
red with other, more
justice system.
a 3. sentencing out a or burglary or burglary the 1s special robbery
al court robbery armed new robbery statute as convictions robbery U.S.C. 2111), a
V be a need for
here, for
dequate state
,ther such (18 or burglary robbery in or the
nay render
uate or
jeral staturisdiction bank robbery or postal of It S. would 52 as
ritorial ,erty (18 U.S.C. 1153), or Thus, as the introduced. coverage not
Congres-
not be
JI
onsiderably 3 U.S.C. (18 than
_st the states
- 10 -
and at the same time would serve to avoid any constitutional
problems associated with allowing a federal prosecution only with
the concurrence of or lack of objection from a non-federal
official. We strongly urge the Subcommittee to include such a
provision 1f it decides to report out legislation in this area.
Mr. Chairman, that concludes my prepared remarks and I would
be happy to respond to any questions at this time.