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John Roberts' Chronological Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Chron File (01/01/1983-01/06/1983)
Box: 59
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
January 3, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS ase
SUBJECT:
Enrolled Bill H.R. 5238 - Orphan Drug Act
Richard Darman has requested comments by 5:00 p.m. today on
Enrolled Bill H.R. 5238, known as the Orphan Drug Act. The
main provision of this bill would authorize tax credits,
direct grants, and exclusive marketing rights for drug
manufacturers to develop and market drugs for rare diseases
-- so-called (for no apparent reason) "orphan drugs." The
companies have argued that it is economically unprofitable
for them to devote time and resources to such drugs, because
there are so few buyers or potential buyers, even though the
availability of the drugs is a matter of life and death for
those few. Treasury opposes the orphan drug provisions, on
the ground that the tax system should generally not be used
to distribute subsidies.
The main opposition to the bill within the Executive Branch,
however, focuses on section 7, a rider attached by Senator
Hatch. Section 7 would require HHS to devise and publish
charts demonstrating the probability that persons of different
ages, sex, etc. are likely to develop cancer as a result of
varying degrees of exposure to radiation fallout from
nuclear bomb testing. The Department of Justice recommends
a veto, on the ground that this provision would cripple the
government's defense of radiation suits. That defense has
focused on lack of evidence of causation, and the tables
contemplated by the bill could fill this void in the typical
plaintiff's case. The resulting exposure of the United
States would be in the billions of dollars. HHS, urging
approval, argues that the tables would clearly state their
limitations and would simply convey scientific information,
not predetermine legal questions. The bill contains a
number of other objectionable riders, specifying funding of
a categorical home health grant program, sickle cell cen-
ters, and EPA investigation of a particular reservoir.
OMB, Justice, Treasury, Energy, and OSTP recommend disap-
proval, primarily due to the radiation tables provision.
Defense joins HHS in recommending approval, apparently
-2-
because a number of people with orphan drug diseases are
associated with Defense. The bill is a high-profile one,
the subject of an open letter to the President and Post
editorial (attached). The legal objections raised by
Justice are serious ones, and the tables could potentially
be very costly to the United States. That depends, however,
on what the tables say, and how they are used by courts. In
essence the tables would simply provide more factual
information on what is a mixed factual and legal question.
While that may harm Justice's defense, it does not in itself
change existing legal rules. The tables should not
therefore be portrayed as determinative of the liability
question.
I recommend that the memorandum to Darman reiterate the
legal objections to the bill, but also correct the possible
misimpression that signing the bill would be tantamount to
conceding the radiation fallout cases.
Two draft memoranda of disapproval, prepared by OMB, are
attached. The longer one notes that disapproval is based
primarily on section 7, but also objects to the other riders
and the tax credit aspects of the orphan drug provisions.
The shorter memorandum simply objects to section 7 and
indicates support for the orphan drug provisions. OMB and
Treasury prefer the longer version. I favor the shorter
version, since Congressional and popular support for the
orphan drug provisions is so strong that the President's
opposition to this bill must be seen as completely unrelated
to those provisions.
I have attached a proposed memorandum to Darman.
Attachments
THE WHITE HOUSE
WASHINGTON
January 3, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 5238 - Orphan Drug Act
Counsel's Office has reviewed the above-referenced enrolled
bill. We share the concerns expressed by the Department of
Justice on section 7 of the bill. That section mandates the
preparation of probability tables that could undermine the
government's defense of radiation fallout cases. The
exposure of the government in such cases runs into the
billions of dollars.
The tables, however, would not be determinative of the
government's liability. They would provide factual informa-
tion of relevance to the question of causation. The signifi-
cance of the tables to the ultimate resolution of radiation
litigation will depend on what the tables say (unknown at
this point) and how they are used by the courts. Government
lawyers will be able to advance arguments limiting the use
of the tables, and -- unless the tables reveal an overwhelm-
ing causative link between exposure to radioactive fallout
and cancer -- the tables will be simply one of several
factors for judges to consider in assessing the mixed
factual and legal question of causation.
We do not, therefore, view the objections to section 7 of
the bill -- while serious -- as an absolute bar to Executive
approval, particularly in light of the strong support for
the orphan drug provisions of the bill in Congress and among
the public.
Counsel's Office has no legal objection to either of the
draft memoranda of disapproval. In light of the strong
support for the orphan drug provisions, however, we prefer
the shorter memorandum. That memorandum limits the basis
for disapproval to section 7, and expresses support for the
orphan drug provisions. It avoids the danger -- present
with the longer memorandum -- that the President may be
perceived as opposed to government support for orphan drug
development.
FFF: JGR:aw 1/3/82
CC: FFFielding/JGRoberts/Subj./Chron
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
January 3, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Proclamation Designating January 3, 1983
As the "One Hundred and Fiftieth Anniversary
of Greene County, Missouri"
Dodie Livingston, for Richard Darman, has requested comments
by noon today on the above-referenced draft proclamation.
House Joint Resolution 630 authorized and requested the
President to issue a proclamation designating January 3, 1983
the one hundred and fiftieth anniversary of Greene County,
Missouri. The attached draft does so. I see no legal
objections.
I do have a stylistic objection. The last part of the second
sentence -- "and has contributed many of its sons and
daughters to hold high public office and otherwise serve the
State of Missouri and our nation" -- strikes me as awkward.
The preposition "to" after the verb "contributed" calls for
objects, yet this construction supplies the verbs "hold" and
"serve." I suggest: "and has contributed many of its sons
and daughters to high public office and other service of the
State of Missouri and our nation." Better yet, the sentence
should be split, to read:
distinguished history. Many
of its sons and daughters have held high public office and
otherwise served the state
"
I have contributed a draft memorandum to discuss these minor
concerns.
THE WHITE HOUSE
WASHINGTON
January 3, 1983
MEMORANDUM FOR DODIE LIVINGSTON
ASSISTANT TO RICHARD G. DARMAN
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Proclamation Designating January 3, 1983
the "One Hundred and Fiftieth Anniversary
of Greene County, Missouri
Counsel's Office has reviewed the above-referenced draft
proclamation and has no legal objection.
We do, however, find the last part of the second sentence
somewhat awkward, and suggest either of the following
alternatives:
"Greene County
...
distinguished history, and has contributed
many of its sons and daughters to high public office and other
service of the State
"
"Greene County
distinguished history. Many of its sons
and daughters have held high public office and otherwise
served the State
"
THE WHITE HOUSE
WASHINGTON
January 4, 1983
MEMORANDUM FOR T. KENNETH CRIBB, JR.
ASSISTANT COUNSELLOR TO THE PRESIDENT
FROM:
JOHN G. ROBERTS are
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
New Study on Exclusionary Rule
I am attaching a recent story and editorial on the new NIJ
exclusionary rule study, which I mentioned at the last
Saturday Group meeting at Bruce Fein's. The study shows
that the exclusionary rule resulted in the release of 29% of
felony drug arrestees in Los Angeles in one year -- a far
cry from the highly misleading 0.4% figure usually bandied
about. This study should be highly useful in the campaign
to amend or abolish the exclusionary rule.
Attachment
THE WHITE HOUSE
WASHINGTON
January 4, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS are
SUBJECT:
FOIA Request from Budd Schulberg
James K. Hall, Chief of the FBI FOI/PA Section, has
submitted two documents from FBI files for your review as to
sensitivity prior to response to the requester. The
documents are a request for a name check on the FOIA
requester from Mildred Stegall, dated June 13, 1967, and the
Bureau's response to that request. The name check request
indicates Schulberg was being considered for a Presidential
appointment; the Bureau response reveals that he had been
the subject of security investigations in the 1940's and
1950's, and had been a member of the Communist Party from
1937-1940. Hall does not view the information as
sufficiently sensitive to warrant redactions pursuant to the
FOIA, and I agree.
I have prepared a memorandum to Hall for your signature.
THE WHITE HOUSE
WASHINGTON
January 4, 1983
MEMORANDUM FOR JAMES K. HALL
CHIEF, FOI/PA SECTION
RECORDS MANAGEMENT DIVISION
FEDERAL BUREAU OF INVESTIGATION
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
FOIA Request of Budd Schulberg
This is in response to your letter of December 14, 1982 in
which you requested my review of two documents responsive to
the above-referenced FOIA request. We have reviewed the two
documents and have no legal objection to their release to
the requester.
bcc: FFFielding
JGRoberts
Subject
Chron
THE WHITE HOUSE
WASHINGTON
January 4, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS osr
SUBJECT:
Enrolled Bill H.R. 5826 -
Oil and Gas Lease Reinstatement
Richard Darman has requested comments by today on Enrolled
Bill H.R. 5826, which would reinstate one particular oil and
gas lease. Through an oversight, the lessee of a particular
lease failed to advise the Bureau of Land Management (BLM)
that his lease had been communitized with a neighboring
leasehold. BLM therefore did not credit the lessee with
drilling efforts on the other leasehold, and ruled that the
lease had expired, due to the absence of drilling efforts.
This bill reinstates the lease, retroactive to its date of
expiration, upon filing of the communitization agreement and
payment of any accrued rent. OMB and Interior recommend
approval.
I have reviewed the memorandum for the President from James
Frey, Assistant Director of OMB for Legislative Reference,
and the bill itself. I see no legal objections.
THE WHITE HOUSE
WASHINGTON
January 4, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING 0.08
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 5826 -
Oil and Gas Lease Reinstatement
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled bill.
bcc: FFFielding
GRoberts
Subject
Chron
THE WHITE HOUSE
WASHINGTON
January 4, 1982
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS gsd
SUBJECT:
Enrolled Bill H.R. 4496 - Texas
Band of Kickapoo Reservation Act
Richard Darman has requested comments by Wednesday, January 5,
on Enrolled Bill H.R. 4496, which would heap Federal
benefits on the Texas Band of Kickapoo Indians. The
Kickapoos, originally from the Great Lakes area, did not
stop running from their encounter with Europeans until they
reached Mexico, where they now hold 17,000 acres of land.
The Kickapoos provide migrant labor in the United States,
and a group of them made Newsweek by choosing to live in
squalid conditions beneath the International Bridge in Eagle
Pass, Texas, rather than their Mexican homeland. The bill
would: (1) require the Secretary of Interior to develop a
list of Kickapoos, and grant U.S. citizenship to anyone on
that list; (2) entitle Kickapoos to cross the Mexican/U.S.
border free of any restrictions; (3) direct the Secretary to
accept up to 100 acres of donated land for a Kickapoo
reservation in Texas; (4) give the Kickapoos the benefits of
the Indian Reorganization Act; and (5) permit Federal
services to be provided the Kickapoos without regard to
restrictions that limit such services to Indians on a
reservation.
OMB, Interior, and State recommend approval; Justice defers
to Interior. While the approach of the bill -- ad hoc
exceptions to restrictions in general laws -- strikes me as
unfortunate, and while its provisions seem overly generous
-- particularly in light of the fact that these are, generally
speaking, Mexican Indians and not American Indians -- the
bill is consistent with the Administration's recommenda-
tions. I see no legal objections, and have prepared a
memorandum to that effect for your signature.
Attachment
THE WHITE HOUSE
WASHINGTON
January 4, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
:
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 4496 - Texas
Band of Kickapoo Reservation Act
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled bill.
FFF: JGR:aw 1/4/83
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GRoberts
Subj.
Chron
THE WHITE HOUSE
WASHINGTON
January 5, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
ask
SUBJECT:
Enrolled Resolution S.J. Res. 101 -
National High School Activities Week
Richard Darman has requested comments by January 6 on
enrolled resolution S.J. Res. 101, which designates the week
of October 17 - 23, 1982, as "National High School
Activities Week." The resolution notes the benefits of
extracurricular activities and states that former President
Ford has agreed to serve as honorary national chairman of
the effort to emphasize the importance of such activities.
OMB recommends approval; Education has no objection. In
light of the tardiness of the resolution, James Frey
recommends in his memorandum to the President that he sign
the resolution, but not issue a proclamation. I see no
legal objection to this course of action.
Attachment
THE WHITE HOUSE
WASHINGTON
January 5, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Resolution S.J. Res. 101 -
National High School Activities Week
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled resolution.
FFF:JGR:aw 1/5/83
CC: FFFielding
JGRoberts
Subj.
Chron
THE WHITE HOUSE
WASHINGTON
January 5, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
ask
SUBJECT:
Enrolled Bill S. 3105 - West
Virginia Federal Judicial Districts
Richard Darman has requested comments by January 6 on
enrolled bill S. 3105, which would realign the two federal
judicial districts in West Virginia, to balance the
workload, and provide an additional judge in each district
to replace a current judgeship shared by the two districts.
The bill reflects the wishes of the West Virginia judges and
congressional delegation. OMB and the Administrative Office
of U.S. Courts recommend approval; Justice has no objection.
I have reviewed the memorandum for the President from James
Frey, Assistant Director of OMB for Legislative Reference,
and the bill itself. I see no legal objections, and have
prepared a memorandum to Darman to that effect for your
signature.
Attachment
THE WHITE HOUSE
WASHINGTON
January 5, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill S. 3105 - West
Virginia Federal Judicial Districts
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled bill.
FFF: JGR:aw 1/5/83
CC: FFFielding
JGRoberts
Subj.
Chron
THE WHITE HOUSE
WASHINGTON
January 5, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DOR
SUBJECT:
Enrolled Bill S. 2273 - Earthquake
Hazard Reduction Act Reauthorization
Richard Darman has requested comments by close of business
January 6 on enrolled bill S. 2273, which authorizes appro-
priations for the earthquake hazard reduction activities of
the Federal Emergency Management Agency, the U.S. Geological
Survey, the National Science Foundation, and the National
Bureau of Standards. As noted in the memorandum to the
President from James Frey, Assistant Director of OMB for
Legislative Reference, the only areas in which the budget
amounts in S. 2273 differ from Administration requests have
been mooted by other authorization bills. All affected
agencies recommend approval.
I have reviewed the memorandum to the President from James
Frey and the bill itself, and see no legal objections. I
have prepared a memorandum to Darman to that effect for your
signature.
Attachment
THE WHITE HOUSE
WASHINGTON
January 5, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill S. 2273 - Earthquake
Hazard Reduction Act Reauthorization
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled bill.
FFF:JGR:aw 1/5/83
CC: FFFielding
JGRoberts
Subj.
Chron
THE WHITE HOUSE
WASHINGTON
January 5, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS ask
SUBJECT:
Enrolled Resolution H.J.
Res. 459 - American Indian Day
Richard Darman has requested comments by close of business
January 7 on enrolled resolution H.J. Res. 459, which
authorizes and requests the President to issue a
proclamation designating May 13, 1983 as "American Indian
Day." OMB recommends approval.
I have reviewed the memorandum for the President from James
Frey, Assistant Director of OMB for Legislative Reference,
and the resolution itself, and see no legal objections.
Attachment
THE WHITE HOUSE
WASHINGTON
January 5, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Resolution H.J.
Res. 459 - American Indian Day
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled resolution.
FFF:JGR:aw 1/5/83
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JGRoberts
Subj.
Chron
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
January 5, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
are
SUBJECT:
Withdrawal of Delegation of Authority
to Peace Corps Director to Appoint
Peace Corps Country Directors
Chris Hicks, Associate Director of the Office of Presidential
Personnel, has asked whether the President may withdraw his
delegation of authority to the Director of the Peace Corps
to appoint Peace Corps Country Directors. The Peace Corps
Act provides that "[i]n each country or area in which
volunteers serve abroad, the President may appoint an
employee or a volunteer as a Peace Corps representative to
have direction of other employees of the Peace Corps abroad
and to oversee the activities carried on under this chapter
in such country or area." 22 U.S.C. § 2506 (c). The power
of appointment is thus expressly given to the President by
statute. The President delegated all functions conferred
upon him by the Peace Corps Act (unless explicitly excepted)
to the Director of the Peace Corps in Executive Order 12137
(May 16, 1979).
As a general principle, delegations of authority are com-
pletely revocable. The Executive Order was expressly based
on 3 U.S.C. § 301 and the Peace Corps Act. The former
statute generally permits the President to designate other
officials to perform functions vested in him by law, and
explicitly provides that such designations "shall be revoc-
able at any time by the President in whole or in part." The
Peace Corps Act contains a more specific authorization of
delegation. At the time the Executive Order was promulgated,
22 U.S.C. § 2503 (b) provided: "The President may exercise
any functions vested in him by this chapter through such
agency or officer of the United States Government as he
shall direct" (emphasis supplied). The delegation in the
Executive Order, based in part on this provision, was thus
clearly permissive, and in no sense irrevocable.
The conclusion that the President may revoke his delegation
of authority to the Peace Corps Director is not affected
by Title VI of the International Security and Development
-2-
Cooperation Act of 1981, Pub. L. No. 97-113, 95 Stat. 1519,
which established the Peace Corps as an "independent" agency
within the Executive Branch. Nothing in that legislation
purported to address the power of the President in 22 U.S.C.
§ 2506 (c) to appoint Country Directors. That Act did change
the above-cited 22 U.S.C. § 2503 (b), to read "The President
may exercise any functions vested in him by this chapter
through the Director of the Peace Corps," as opposed to
"through such agency or officer of the United States Govern-
ment as he shall direct." This simply narrowed the permis-
sible delegation, and did not alter its revocable character.
Arguing that the delegation of authority in the Executive
Order became permanent and could not be changed except by
legislation would be tantamount to amending a statute (22
U.S.C. § 2506 (c), authorizing the President to appoint
Country Directors) by Executive Order, a plainly absurd
result.
I recommend that you advise the Office of Presidential
Personnel that the President may revoke his delegation of
authority to the Director of the Peace Corps to appoint
Peace Corps Country Directors, by appropriately amending
Executive Order 12137. I have attached a proposed memorandum
to that effect.
Attachment
THE WHITE HOUSE
WASHINGTON
January 5, 1982
MEMORANDUM FOR HELENE VON DAMM
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Appointment of Peace Corps Country Directors
This responds to your inquiry concerning the authority of
the President to withdraw his delegation of authority to the
Director of the Peace Corps to appoint Peace Corps Country
Directors, by amending Executive Order 12137. This office
has reviewed that question and we conclude that the Presi-
dent may, by appropriately amending Executive Order 12137,
withdraw his delegation of authority to the Director of the
Peace Corps to appoint Peace Corps Country Directors.
The President is given authority to appoint Peace Corps
Country Directors by 22 U.S.C. § 2506 (c). While that
authority was delegated to the Director of the Peace Corps
by Executive Order 12137, such delegations of authority are
revocable at any time. See 3 U.S.C. § 301. Title VI of the
International Security and Development Cooperation Act of
1981, Pub. L. No. 97-113, 95 Stat 1519, establishing the
Peace Corps as an "independent agency within the executive
branch," did not alter the President's authority to appoint
Country Directors pursuant to 22 U.S.C. § 2506 (c), nor in
any way affect the revocable nature of the delegation of
authority in Executive Order 12137.
FFF: JGR:aw 1/5/83
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JGRoberts
Subj.
Chron
THE WHITE HOUSE
WASHINGTON
January 6, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
Is
SUBJECT:
Enrolled Bill H.R. 3809 - Nuclear
Waste Policy Act of 1982
Richard Darman has requested comments by close of business
today on enrolled bill H.R. 3809, the Nuclear Waste Policy
Act of 1982. This bill, a leading item on the Administra-
tion's legislative agenda, is scheduled to be signed in
ceremony tomorrow. The bill establishes detailed procedures
for the selection and construction of nuclear waste reposi-
tory sites. These procedures require the Secretary of
Energy to submit candidate sites to the President, who must,
within a specified period of time, decide on a particular
site. An affected Governor or leader of an Indian tribe may
disapprove the decision, and that disapproval will be
binding unless Congress passes a joint resolution, which
becomes law, approving the President's original decision.
The Department of Justice has no "legislative veto" problems
with this procedure: the President's decision is subject to
veto not by Congress, but by outside groups, so no separa-
tion of powers problem is presented.
As a general policy matter it is objectionable to subject
the President's decision to veto by a Governor or Indian
chief, but as part of a comprehensive package on the siting
of nuclear waste -- including a tax on utilities to pay for
the site --- I think such a provision is tolerable. The bill
is replete with collateral provisions, requiring the President
to give notice to affected States and tribes and supply them
with information on siting plans. The President or Secretary
of Energy is also required to consult and cooperate with
affected States and tribes throughout the process, and enter
into a written agreement governing such specifics of cooper-
ation as how information on the siting decision will be
shared. These provisions do not, however, override possible
claims such as executive privilege. Indeed, the procedures
for sharing information are to be "in accordance with
applicable law."
-2-
OMB, State, Defense, Energy, the Nuclear Regulatory Commission,
and the Office of Science and Technology Policy all recommend
approval; other affected agencies have no objection. While
the numerous provisions permitting active participation of
States and Indian tribes in the siting selection decision
process of the Secretary of Energy and the President raise
policy concerns, those provisions were apparently necessary
to achieve passage of this high-priority package. In view
of the exceptional nature of the siting decision, and the
comprehensive package of which that decision is one part, I
do not see any legal objection to Presidential approval.
THE WHITE HOUSE
WASHINGTON
January 6, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 3809 - Nuclear
Waste Policy Act of 1982
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled bill.
FFF:JGR:aw 1/6/83
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JGRoberts
Subj.
Chron
THE WHITE HOUSE
WASHINGTON
January 6, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
&
SUBJECT:
Enrolled Bill H.R. 6679 - Civil Penalties
for the Violation of Laws Dealing with Dis-
semination of Livestock and Plant Diseases
Richard Darman has requsted comments by close of business
January 7 on enrolled bill H.R. 6679, which would add civil
penalties to the existing sanctions for violations of animal
and plant quarantine laws. The bill would generally add
civil penalties for violations of quarantine laws, currently
punishable only by criminal sentences for knowing violations.
This would make enforcement easier by providing more limited
and appropriate sanctions. The bill also makes violations
of agency rules and regulations punishable by civil and
criminal sanctions. OMB and Agriculture recommend approval;
Justice has no objection.
I have reviewed the memorandum for the President from James
Frey, Assistant Director of OMB for Legislative Reference,
and the bill itself. I see no legal objections.
Attachment
THE WHITE HOUSE
WASHINGTON
January 6, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Enrolled Bill H.R. 6679 - Civil Penalties
for the Violation of Laws Dealing with Dis-
semination of Livestock and Plant Diseases
Counsel's Office finds no objection from a legal perspective
to the above-referenced enrolled bill.
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THE WHITE HOUSE
WASHINGTON
January 6, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Customs Declaration Package
You asked that I check into the status of the proposal,
described in the attached Washington Post and New York Times
articles, to have a private advertising firm distribute
Customs declaration forms in a packet containing advertising
and greetings from the President. According to Stephen
Jacobs of the Customs Service, the packets have already been
printed by the private firm and are on the verge of being
distributed. (I am awaiting delivery of a sample.) The
packages contain a brief greeting from President Reagan to
foreign travelers, over a facsimile of his signature; a
customs declaration form for the traveler to fill out, and
turn in to the Customs Service; other information about what
may and may not be taken into the United States; and six
pages of private advertising.
The customs declaration form can be printed and distributed
by anyone. In the past, airlines and foreign governments
have printed and distributed the customs forms. Customs has
agreed to accept the form in the advertising package.
Customs believes that the advertising package scheme will
reduce its costs of printing the forms, and also provide the
added benefit of the Presidential greeting, at no cost to
Customs. The Presidential greeting is a new idea; such
greetings had not been distributed to travelers in the past.
The scheme is not an exclusive one: plain forms will
continue to be available, and others may distribute them or
their own packets with the forms as they see fit.
The concern of this office, of course, is with the use of
the Presidential message. Customs was advised by the
General Counsel of GPO that if the message were published in
a government document there would be no restrictions on its
duplication and distribution for private purposes. Customs
accordingly published the greetings in a pamphlet. My
concern is twofold: (1) the presence of the message may
suggest that the President has endorsed this particular
commercial venture, and (2) the juxtaposition of the Presi-
dential message and the six pages of advertising may suggest
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endorsement by the President of the advertised products.
While the private firm marketing the packet has every right
to reproduce non-copyrighted documents in the public domain
-- such as the President's greeting -- it does not have the
right to convey a false impression of Presidential sponsor-
ship either of its product or those of its advertisers. Had
the firm asked this office for approval of its plan to use
the President's greeting, we would have declined, consistent
with established policy, to approve the request -- even
though we probably could not have disapproved it either.
In light of the last-minute nature of our involvement, and
the enthusiastic complicity of the Customs Service in the
project, I think the best course would be to attempt to
obtain some sort of disclaimer on subsequent printings of
the package. If the page containing the President's message
contained a line indicating that it was reprinted or taken
from a government document, for example, that would go far
in disassociating the President from any direct involvement
with the packet or advertisers. The phrase "not a government
document" on the packet would also be helpful, or even a
more explicit announcement that the government in no way
endorses advertisers appearing in the packet. The exact
disclaimers would presumably be the subject of negotiations
with the private firm. Whoever raises the subject with them
should start with the concern about a false impression of
Presidential endorsement, suggest removal of the greeting,
and negotiate from there.
I think it would be advisable as a first step to have the
General Counsel at Customs approach the individuals involved,
and proceed from there. If you agree with this course of
action, I will draft a memorandum from you to the Customs
Service General Counsel.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
January 6, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS OBR
SUBJECT:
Request for Presidential Endorsement
of "Yellow Books"
Craig Fuller has asked whether the President could endorse a
plan by a private firm to publish federal government direc-
tories and distribute them free of charge to federal employ-
ees, while charging private subscribers and carrying adver-
tising. Jud Clark of Public Affairs Information, a legisla-
tive and regulatory reporting service, described the
proposal in a letter to Fuller, noting that the President
had written a letter "applauding" a similar effort by
California Journal when he was Governor.
Presidential endorsement of this private commercial venture
would of course be contrary to established White House
policy. I do not believe that the benefit of free direc-
tories for federal employees justifies departure from that
policy, particularly since the directories will carry
advertising and the President could be perceived as endors-
ing not only the directory and the directory company but its
advertisers as well.
I. have prepared a proposed reply to Fuller.
Attachment
THE WHITE HOUSE
WASHINGTON
January 6, 1983
MEMORANDUM FOR CRAIG L. FULLER
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Request for Presidential Endorsement
of "Yellow Book"
You have inquired whether the President could endorse a
proposal by a private firm to produce and distribute federal
government directories, free of charge, to federal employees.
The firm would charge private subscribers for the directories,
and the directories would also carry advertising. This
proposal was described in an October 20, 1982 letter to you
from Jud Clark of Public Affairs Information.
The White House adheres to a policy of not approving the use
of the name, likeness, photograph or signature of the
President in any manner that does or might suggest endorse-
ment of a commercial product or enterprise. This proposal
goes even further, seeking explicit Presidential endorsement
of a commercial venture. There is also the danger that the
President may be perceived as endorsing the products adver-
tised in the contemplated directory. The possible benefit
of free distribution of the directories to federal employees
does not warrant departure from the established policy.
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