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Title Headnotes
Ex Parte Communications During FCC Rulemaking

Ex parte communications by White House officials to Federal Communications Commission commissioners that advocate positions on the FCC rulemaking proceeding to evaluate financial interest and syndication rules would be permissible.

According to FCC regulations, as interpreted by the FCC General Counsel, communications by the White House must be disclosed in the FCC rulemaking record if they are of substantial significance and clearly intended to affect the ultimate decision.

Although solicitation of the views of White House officials by FCC commissioners would be permissible and need not be included in the rulemaking record, any response by White House officials to such a solicitation would be subject to the same disclosure requirements that apply to unsolicited communications.

Secretary of Education Review of Administrative Law Judge Decisions

Section 22 of the Drug-Free Schools and Communities Act Amendments of 1989 provides that a decision of an administrative law judge reviewing the termination of federal assistance to educational institutions or agencies “shall be considered to be a final agency action.” This provision does not preclude the Secretary of Education from reviewing such administrative law judge decisions.

Because section 22 makes an administrative law judge decision a final agency action for purposes of judicial review, it deprives the Secretary of the power to require exhaustion of secretarial review procedures before an aggrieved party may seek judicial review.

FBI Authority to Charge User Fees for Record Check Services

The Federal Bureau of Investigation has authority to charge the Department of State user fees for FBI record check services used by the State Department to determine whether visa applicants have criminal records and are thus ineligible for visas.

The imposition of user fees by the FBI for record check services is discretionary.

Application of the Airport and Airway Improvement Act to the Proposed Lease of the Albany County Airport

Section 511(a)(12) of the Airport and Airway Improvement Act permits an airport owner or operator to recoup its unreimbursed capital or operating costs from airport revenues, regardless of when the expenses were incurred. The Federal Aviation Administration, however, in the exercise of discretion conferred upon the Secretary of Transportation by the Act, may oversee the rates charged to airport users by private lessees to ensure that such rates remain fair and reasonable.

Military Use of Infrared Radars Technology to Assist Civilian Law Enforcement Agencies

The Department of Defense has statutory authority to assist civilian law enforcement agencies to identify or confirm suspected illegal drug production within structures located on private property by providing them with aerial reconnaissance that uses Forward Looking Infrared Radars technology.

Severability of Legislative Veto Provision

A legislative veto provision in the Selective Service Act, which would authorize either House of Congress to disapprove contracts in excess of $25,000,000, is unconstitutional under Immigration and Naturalization Service v. Chadha, but is severable from the rest of the statute.

This unconstitutional provision must be severed from the statute in its entirety, including its language calling for notification to Congress of proposed contracts.

Indemnification of Treasury Department Officers and Employees

The Department of Treasury may use its general appropriations funds to indemnify any of its officers and employees against personal liability for conduct arising out of actions taken within the course and scope of their employment, if the Department concludes that such indemnification is necessary to ensure effective performance of the Department’s mission.

28 U.S.C. § 2006 and 26 U.S.C. § 7423(2) also provide specific authority for the Department of the Treasury to indemnify, in certain circumstances, officers and employees who collect tax revenue and who enforce federal tax laws.

Applicability of 18 U.S.C. § 219 to Members of Federal Advisory Committees

Section 219(a) of Title 18 of the United States Code applies to members of federal advisory committees, including the Advisory Committee for Trade Policy and Negotiations, that are governed by the Federal Advisory Committee Act.

Section 219(b) may be used to exempt advisory committee members who are “special government employees,” but may not be used to exempt “representative” members, who are generally not considered government employees.

The Emoluments Clause prohibits an individual who is an agent of a foreign government from serving on an advisory committee, unless Congress has consented to such service.

Liability of the United States for State and Local Taxes on Seized and Forfeited Property

Property seized by, and ultimately forfeited to, the federal government is not subject to state and local taxes that arise after the date of the offense that leads to the order of forfeiture.

Authority of the Nuclear Regulatory Commission to Collect Annual Charges from Federal Agencies

The Nuclear Regulatory Commission has statutory authority to collect annual charges from federal agencies that hold licenses issued by the NRC.

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