[Congressional Record Volume 141, Number 48 (Wednesday, March 15, 1995)]
[Senate]
[Pages S3929-S3939]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           AFFIRMATIVE ACTION

  Mr. DOLE. Mr. President, to his credit, President Clinton has 
initiated a long-overdue review of all Federal affirmative action laws.
  After nearly 30 years of government-sanctioned quotas, timetables, 
set-asides, and other racial preferences, the American people sense all 
too clearly that the race-counting game has gone too far. The President 
is responding to these pressures, and his review could not have come at 
a more propitious time.
  But first things first. As the President conducts his review, he 
should also revisit some of the misguided affirmative action policies 
of his own administration.
  For starters, he should take a few moments to read the Justice 
Department's brief in the Piscataway Board of Education case, which is 
now pending before the Third Circuit Court of Appeals.
  In Piscataway, the Justice Department has taken the position that, 
when an employer is laying off employees, an individual American can 
legally be fired from her job because of her race. That is right: Our 
Nation's top law enforcement agency says that it is perfectly legal, as 
a way to achieve work force diversity, to tell a person that she can no 
longer keep her job because she happens to have the wrong skin color.
  This is an insidious position--one that goes beyond current law and 
one that the President should emphatically reject.
  I note that he had a little meeting as reported in the Washington 
Post last night with a number of people. I hope they discussed the 
Piscataway case, and I hope the President might respond to this 
Piscataway case.
  The bottom line is that the President's affirmative action review 
cannot have credibility if the affirmative action policies of his own 
administration are fundamentally flawed. Correcting these policies, not 
reviewing old ones, should be the President's first priority.
  With that said, let's remember that to raise questions about 
affirmative action is not to challenge our antidiscrimination laws. 
Discrimination is illegal. Those who discriminate ought to be punished. 
And those who are individual victims of illegal discrimination have 
every right to receive the remedial relief they deserve.
  Unfortunately, America is not the color-blind society we would all 
like it to be. Discrimination continues to be an undeniable part of 
American life.
  But fighting discrimination should never become an excuse for 
abandoning the color-blind ideal. Expanding opportunity should never be 
used to justify dividing Americans by race, by gender, by ethnic 
background.
  Race-preferential policies, no matter how well-intentioned, demean 
individual accomplishment. They ignore individual character. And they 
are absolutely poisonous to race relations in our great country.
  You cannot cure the evil of discrimination with more discrimination.
  Mr. President, last December, I asked the Congressional Research 
Service to provide me with a list of every Federal law and regulation 
that grants a preference to individuals on the basis of race, sex, 
national origin, or ethnic
 background. Frankly, I was surprised to learn that such a list had 
never been compiled before, which, I suppose, speaks volumes about how 
delicate this issue can be.

  Earlier this year, the CRS responded to my request with a list of 
more than 160 preference laws, ranging from Federal procurement 
regulations, to the RTC's bank-ownership policies, to the Department of 
Transportation's contracting rules. Even NASA has gotten into the act, 
earmarking 8 percent of the total value of its contracts each year to 
minority-owned and female-owned firms on the theory that these firms 
are presumptively disadvantaged. They may not be disadvantaged at all.
  As a follow-up to the CRS report, I have written to my colleagues, 
Senators Bond and Kassebaum, requesting hearings on the most prominent 
programs identified in the report--the Small Business Administration's 
section 8(A) program and Executive order 11246, which has been 
interpreted to require Federal contractors to adopt timetables and 
goals in minority- and female-hiring.
  These hearings, I expect, will demonstrate that there are other, more 
equitable ways to expand opportunity, without resorting to policies 
that grant preferences to
 individuals simply because they happen to be members of certain 
groups. And unless the hearings produce some powerful evidence to the 
contrary, it is my judgment that the section 8(a) program should be 
repealed outright.

  The hearings also provide us with the opportunity to rediscover the 
original purpose of Executive Order 11246. As signed by President 
Johnson, the Executive order required Government contractors to agree,

       * * * not to discriminate against any employee or applicant 
     for employment because of race, creed, color, or national 
     origin * * * [and] to take affirmative action to ensure that 
     applicants are employed * * * without regard to their race, 
     creed, color, or national origin.

  In other words, Executive Order 11246 defined affirmative action to 
mean ``non-discrimination.''
  I believe in nondiscrimination. Everybody in this body should believe 
in nondiscrimination against race, color--and you can add disability to 
that list, too.
  There was no mention of timetables or goals. No mention of racial 
preferences. These concepts were later grafted onto the Executive order 
not by Congress, but by regulation, the work of Federal bureaucrats.
  [[Page S3930]] At a minimum, we should restore the original purpose 
of Executive Order 11246: to ensure that Federal contractors do not 
discriminate. And if they do, they should be punished. However, if the 
Executive order continues to be used, and misused, as a hammer to force 
contractors to adopt race-based hiring practices, then it, too, should 
be repealed.
  In fact, I intend to introduce legislation later this year that will 
force the Federal Government to live up to the color-blind ideal by 
prohibiting it from granting preferential treatment to any person, 
simply because of his or her membership in a certain favored group.
  I might add, when I got this CRS study, we made it available to the 
White House. There has been a story about it. They asked for it and we 
were happy to give it to the White House. It saved duplication. We 
would be happy to work with the White House and anybody else. And we 
will be working with Representative J.C. Watts of Oklahoma on overall 
legislation, maybe at some later date.
  Of course, the Government should fight discrimination where it 
exists, but, at the same time, it should be color-blind, race-neutral, 
both in theory and in practice.
  Mr. President, I am hopeful about America. And I am optimistic, as we 
head into the 21st century, that the American experiment will continue 
to be a model of self-government and a source of hope for millions the 
world over.
  But leadership also requires a sense of common purpose. We cannot 
continue to lead the world, if we are divided here at home.
  Yes, we should celebrate our own differences. Yes, we should take 
pride in our own rich ethnic heritage. It is a source of great strength 
in America.
  But, at the same time, we should not devalue the common bonds that 
define us as Americans. Too often, we speak in terms of a hyphenated 
identity: it is Italian-Americans, German-Americans, African-Americans, 
Irish-Americans, and not just ``Americans.'' We are all just Americans.
  Historian Arthur Schlesinger, Jr., probably put it best when he 
warned, and I quote:

       Instead of a nation composed of individuals making their 
     own unhampered choices,
      America increasingly sees itself as composed of groups more 
     or less ineradicable in their ethnic character. The 
     multiethnic dogma abandons historic purposes, replacing 
     assimilation by fragmentation, integration by separatism. 
     It belittles unum and glorifies pluribus.

  So, Mr. President, the coming debate over affirmative action will be 
much more than just a debate over reverse discrimination. It will be a 
debate that focuses us to answer a fundamental question: What kind of 
country do we want America to be?
  Do we work toward a color-blind society? I hope so. A society that 
judges people by their talents, their sense of honor, their hopes and 
dreams, as individuals? Or do we continue down the path of group 
rights, group entitlements--special rights for some--judging people not 
by their character or intellect, but by something irrelevant: the color 
of their skin? Maybe it will extend to disabilities or something else.
  America has always been a melting pot. But it should never become a 
place where race and ethnicity exclusively define who we are, how we 
think, and what we are supposed to believe.
  Mr. President, I ask unanimous consent that my letters to Senators 
Bond and Kassebaum be printed in the Record, along with the report 
prepared by the Congressional Research Service.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                      U.S. Senate,


                                Office of the Majority Leader,

                                    Washington, DC, March 2, 1995.
     Hon. Nancy Landon Kassebaum,
     Chairman, Committee on Labor and Human Resources, U.S. 
         Senate, Washington, DC.
       Dear Nancy: As part of our review of federal affirmative 
     action policies, I am writing to request that you, as 
     Chairman of the Labor and Human Resources Committee, convene 
     hearings on Executive Order 11246. In a recent report 
     prepared at my request, the Congressional Research Service 
     has identified Executive Order 11246 among those federal 
     programs that grant preferences to individuals on the basis 
     of race, sex, national origin, or ethnic background.
       Executive Order 11246 was initiated by President Johnson in 
     1965. The Executive Order states, in part, that ``[i]t is the 
     policy of the Government of the United States to provide 
     equal opportunity in Federal employment for all qualified 
     persons, to prohibit discrimination in employment because of 
     race, creed, color, or national origin, and to promote the 
     full realization of equal employment opportunity through a 
     positive, continuing program in each executive department and 
     agency.''
       As administered by the Department of Labor's Office of 
     Federal Contract Compliance Programs, Executive Order 11246 
     requires most federal contractors to file written 
     `'affirmative action'' plans with the federal government. 
     These plans must include minority- and female-hiring 
     ``goals'' and ``timetables.''
       In my view, hearings should seek to answer the following 
     questions: What was the original purpose of Executive Order 
     11246? Has this purpose been fulfilled over the years through 
     the Executive Order's implementation? Has Executive Order 
     11246 operated to discriminate on the basis of race, 
     ethnicity, or gender? Are there other, more equitable, ways 
     to expand opportunity for all Americans, without resorting to 
     strategies that rely on providing preferences for individuals 
     simply because they belong to certain groups?
       The bottom line is that no federal program should be immune 
     from Congressional scrutiny.
       Nancy, thank you for your prompt attention to this 
     important matter. I look forward to hearing from you at your 
     earliest convenience.
           Sincerely,
     Bob Dole.
                                                                    ____

                                                      U.S. Senate,


                                Office of the Majority Leader,

                                    Washington, DC, March 2, 1995.
     Hon. Christopher Bond,
     Chairman, Committee on Small Business, U.S. Senate, 
         Washington, DC.
       Dear Kit: As part of our review of federal affirmative 
     action policies, I am writing to request that you, as 
     Chairman of the Small Business Committee, convene hearings on 
     the programs authorized by Sections 8(a) and 8(d) of the 
     Small Business Act. In a recent report prepared at my 
     request, the Congressional Research Service has identified 
     these programs as programs that grant preferences to 
     individuals on the basis of race, sex, national origin, or 
     ethnic background.
       As you may know, applicants for certification under Section 
     8(a) must demonstrate that they are either ``socially 
     disadvantaged'' or that they ``have been subjected to racial 
     or ethnic prejudice or cultural bias because of their 
     identities as members of groups without regard to their 
     individual qualities.'' The Small Business Administration 
     ``presumes,'' absent contrary evidence, that small business 
     owned and operated by members of certain racial and ethnic 
     groups are ``socially disadvantaged.''
       Section 8(d) requires prime contractors on major federal 
     contracts to negotiate a ``subcontracting plan'' that 
     includes ``percentage goals'' for the utilization of small 
     socially-and economically-disadvantaged firms. To implement 
     this policy, each prime contract must contain a clause 
     stating that ``[t]he contractor shall presume that socially 
     and economically disadvantaged individuals include Black 
     Americans, Hispanic Americans, Native Americans, Asian 
     Pacific Americans, and other minorities, or any other 
     individual found to be disadvantaged by the [Small Business] 
     Administration pursuant to section 8(a) . . . (emphasis 
     added).''
       In my view, hearings should seek to answer the following 
     questions: What were the original purposes of the Section 
     8(a) and Section 8(d) programs? Have these purposes been 
     fulfilled? Should the federal government be in the business 
     of ``presuming'' that members of certain racial and ethnic 
     groups are ``socially disadvantaged?'' Have these programs 
     operated to discriminate on the basis of race or ethnic 
     background? Are there other, more equitable, ways to expand 
     opportunity for all Americans, without resorting to 
     strategies that rely on providing preferences for individuals 
     simply because they belong to certain groups?
       The bottom line is that no federal program should be immune 
     from Congressional scrutiny.
       Kit, thank you for your prompt attention to this important 
     matter. I look forward to hearing from you at your earliest 
     convenience.
           Sincerely,
     Bob Dole.
                                                                    ____



                               Congressional Research Service,

                                Washington, DC, February 17, 1995.
     To: Honorable Robert Dole.
     From: American Law Division.
     Subject: Compilation and overview of Federal laws and 
       regulations establishing affirmative action goals or other 
       preference based on race, gender, or ethnicity.
       This is in response to your request, by letter dated 
     December 22, 1994, for ``a comprehensive list of every 
     federal statute, regulation, program, and executive order 
     that grants a preference to individuals on the basis of race, 
     sex, national origin, or ethnic background. Preferences 
     include, but are not limited to, timetables, goals, set-
     asides, and quotas.''
       To compile the list of federal legal authorities contained 
     in this memorandum, several 
      [[Page S3931]] searches on LEXIS/NEXIS and WESTLAW legal 
     databases were undertaken utilizing a variety of search 
     strategies which incorporated legal terminology most 
     frequently associated with federal affirmative action and 
     minority set-aside programs. This yielded citations to 
     several hundred statutory and regulatory programs which we 
     then examined individually to determine whether they appeared 
     to be of the nature described in your inquiry. The 
     compilation of laws included in this memorandum reflects our 
     efforts to be as ``comprehensive'' as possible, in accordance 
     with your instructions. Consequently, we have included any 
     statute, regulation, or executive order uncovered by our 
     research which appears, in any manner, to prefer or consider 
     race, gender, or ethnicity as factors in federal employment 
     or the allocation of federal contracts or grants to 
     individuals or institutions.\1\ Several laws and
      regulations directed to ``socially and economically 
     disadvantaged'' individuals and institutions are included 
     because, as explained infra, that term has been defined 
     administratively and by statute to presumptively apply to 
     specific racial and ethnic minorities. As a background for 
     understanding operation of the numerous listed federal 
     laws and regulations, more extensive discussion is devoted 
     at various points to the development of major 
     ``affirmative action'' programs in federal grant, 
     contract, and employment law.
     Footnotes at end of memorandum.
---------------------------------------------------------------------------


                   federal grant and procurement law

       Federal efforts to increase minority and female 
     participation in contracting, federally assisted programs, 
     and employment have been a major aspect of civil rights 
     enforcement for more than three decades. Congress and the 
     Executive Branch have crafted a wide range of federal laws 
     and regulations authorizing, either directly or by judicial 
     or administrative interpretation, race or gender 
     ``conscious'' strategies in relation to jobs, housing, 
     education, voting rights, and governmental contracting. The 
     historical model for federal laws and regulations 
     establishing minority participation ``goals'' may be found in 
     Executive Orders which since the early 1960's have imposed 
     affirmative minority hiring and employment requirements on 
     federally financed construction projects and in connection 
     with other large federal contracts. Presently, Executive 
     Order 11246 as administered by the Office of Federal Contract 
     Compliance Programs (OFCCP) requires that all employers with 
     federal contracts in excess of $50,000.00 must file written 
     affirmative action plans with the government. These are to 
     include minority and female hiring goals and timetables to 
     which the contractor must commit it's ``good faith'' efforts. 
     Similar affirmative action measures relating to federal 
     government employment were enacted as part of the Equal 
     Employment Opportunity Act Amendment of 1972\2\ and the 1978 
     Civil Service Reform Act.\3\
       Affirmative action for minority entrepreneurs soon became a 
     focus of efforts by the Small Business Administration (SBA) 
     and other federal agencies to assist ``socially and 
     economically disadvantaged'' small businesses under a variety 
     of federal programs. Increasingly, an ``affirmative action'' 
     model, in the form of participation ``goals'' or ``set-
     asides'' for members of racial or ethnic minorities, and 
     businesses owned or controlled by these or other 
     ``disadvantaged'' persons, found legislative expression in a 
     wide range of federal programs.
       The Small Business Act, as amended, provides the statutory 
     prototype for a host of federal programs to increase minority 
     and female participation as contractors or subcontractors on 
     federally funded projects. First, the ``Minority Small 
     Business and Capital Ownership Development,'' or Sec. 8(a) 
     program authorizes the Small Business Administration (SBA) to 
     enter into all kinds of construction, supply, and service 
     contracts with other federal departments and agencies. The 
     SBA acts as a prime contractor and then ``subcontracts'' the 
     performance of these contracts to small business concerns 
     owned and controlled by ``socially and economically 
     disadvantaged'' individuals, Indian Tribes or Hawaiian Native 
     Organizations.\4\
       Applicants for Sec. 8(a) certification must demonstrate 
     ``socially disadvantaged'' status or that they ``have been 
     subjected to racial or ethnic prejudice or cultural bias 
     because of their identities as members of groups without 
     regard to their individual qualities.''\5\ The Small Business 
     Administration ``presumes,'' absent contrary evidence, that 
     small businesses owned and operated by members of certain 
     groups--including Blacks, Hispanics, Native Americans, and 
     Asian Pacific Americans--are socially disadvantaged.\6\ Any 
     individual not a member of one of these groups must 
     ``establish his/her individual social disadvantage on the 
     basis of clear and convincing evidence'' in order to qualify 
     for Sec. 8(a) certification. The Sec. 8(a) applicant must, in 
     addition, show that ``economic disadvantage'' has diminished 
     its capital and credit opportunities, thereby limiting its 
     ability to compete with other firms in the open market.\7\
       The ``Minority Small Business Subcontracting Program'' 
     authorized by Sec. 8(d) of the Small Business Act codified 
     the presumption of disadvantaged status for minority group 
     members that applied by SBA regulation under the Sec. 8(a) 
     program.\8\ Prime contractors on major federal contracts are 
     obliged by Sec. 8(d) to maximize minority participation and 
     to negotiate a ``subcontracting plan'' with the procuring 
     agency which includes ``percentage goals'' for utilization of 
     small socially and economically disadvantaged firms. To 
     implement this policy, a clause required for inclusion in 
     each such prime contract states that ``[t]he contractors 
     shall presume that socially and economically disadvantaged 
     individuals include Black Americans, Hispanic Americans, 
     Native Americans, Asian Pacific Americans, and other 
     minorities, or any other individual found to be disadvantaged 
     by the Administration pursuant to Sec. 8(a) . . .'' 
     Accordingly, SBA has discretion in designating a firm or 
     individual as socially and
      economically disadvantaged for purposes of both the 
     Sec. 8(a) and Sec. 8(d) programs in conformity with 
     specified criteria.\9\
       These obligations, first codified in 1978 as an amendment 
     to the SBA, were augmented a decade later by the Business 
     Opportunity Development Reform Act of 1988.\10\ Congress 
     there directed the President to set annual, government-wide 
     procurement goals of at least 20% for small businesses and 5% 
     for disadvantaged businesses, as defined by the SBA. 
     Simultaneously, federal agencies were required to continue to 
     adopt their own goals, compatible with the government-wide 
     goals, in an effort to create ``maximum practicable 
     opportunity'' for small disadvantaged businesses to sell 
     their goods and services to the government. The goals may be 
     waived where not practicable due to unavailability of 
     disadvantaged business enterprises (DBEs) in the relevant 
     area and other factors.\11\ While the statutory definition of 
     DBE includes a racial component, in terms of presumptive 
     eligibility, it is not restricted to racial minorities but 
     also includes persons subjected to ``ethnic prejudice or 
     cultural bias.''\12\ It also excludes businesses owned or 
     controlled by persons who, regardless of race, are ``not 
     truly socially and/or economically disadvantaged.''\13\ 
     Federal Acquisition Act amendments adopted in 1994 amended 
     the 5% minority procurement goal, and the minority 
     subcontracting requirements in Sec. 8(d), to specifically 
     include ``small business concerns owned and controlled by 
     women'' in addition to ``socially and economically 
     disadvantaged individuals.''\14\
       In addition, Congress has frequently adopted ``set-asides'' 
     or other forms of statutory preference for ``socially and 
     economically disadvantaged'' firms and individuals, following 
     the definitions of the Small Business Act, or by designating 
     minority groups and women as part of specific grant or 
     contract authorization programs. Thus, targeted funding, in 
     various forms, and minority or disadvantaged business set-
     asides or preferences have been included in major 
     authorization or appropriation measures for agriculture, 
     communications, defense, education, public works, 
     transportation, foreign relations, energy and water 
     development, banking, scientific research and space 
     exploration, and other purposes. Other federal laws appear to 
     authorize some consideration of race or gender to enhance the 
     participation of minorities and women in federal programs or 
     employment but without directly mandating preferential goals 
     or set-asides.
       The following statutes, regulations, and executive orders 
     governing federal contracts and grant programs are, to the 
     extent possible, grouped according to agency and subject 
     matter.

               Federal Acquisitions Regulations--General

       48 C.F.R. Sec. 19.001(b) (1994): ``Individuals who certify 
     that they are members of named groups (Black Americans, 
     Hispanic Americans, Native American, Asian-Pacific Americans, 
     Subcontinent-Asian Americans) are to be considered socially 
     and economically disadvantaged'' for purposes of 
     ``Socioeconomic Programs'' under the Federal Acquisitions 
     Regulation (FAR).
       48 C.F.R. Sec. 19.704 (1994): FAR requirement that 
     ``[s]eparate percentage goals for using small business 
     concerns and small disadvantaged business concerns as 
     subcontractors'' be included in small disadvantaged business 
     subcontracting plans.
       48 C.F.R. Sec. 19.706(c)(2) (1994): FAR subcontracting 
     assistance program states that ``[v]arious approaches may be 
     used in the development of small and small disadvantaged 
     business concerns subcontracting incentives. They can take 
     many forms, from a fully qualified schedule of payments based 
     on actual subcontract achievement to an award fee approach 
     employing subjective evaluation criteria. . . The incentive 
     should not reward the contractor for results other than those 
     that are attributable to the contractor's efforts under the 
     incentive subcontracting program.'' See also Sec. 19.705-1 
     (monetary incentives for exceeding goals).
       48 C.F.R. Sec. Sec. 52.219-8, 52.219-9 (1994): Prescribe 
     clauses for inclusion in federal prime and subcontract which 
     require, inter alia, ``[g]oal, expressed in terms of 
     percentages of total planned subcontracting dollars, for the 
     use of small business concerns and small disadvantaged 
     business concerns as subcontractors.''

                              Agriculture

       7 U.S.C.S. Sec. 3154(c): The Secretary of Agriculture is 
     authorized ``to set aside a portion of funds'' appropriated 
     for certain research on the production and marketing of 
     alcohols and industrial hydrocarbons for grants to colleges 
     and universities to achieve ``the objective of full 
     participation of minority groups.''
       7 C.F.R. Sec. 225.6(g)(xi) (1994): Food service management 
     companies participating in the Summer Food Service Program 
     must submit with appropriate state agency a registration 
      [[Page S3932]] which is to include ``a statement as to
      whether the organization is a minority business enterprise'' 
     managed and controlled by ``Blacks, Hispanics, American 
     Indians, Alaskan Natives, Oriental and Aleuts. . . ''
       7 C.F.R. Sec. 246.13(g) (1994): Financial management system 
     maintained by state agencies participating in Special 
     Supplemental Food Program for Women, Infants and Children are 
     ``encouraged'' to use minority- and women-owned banks.
       7 C.F.R. Sec. 272.4(b) (1994): Bilingual program 
     information and certification, and interpreters must be 
     provided in certain low income areas with specified 
     percentages of non-English speaking minority households under 
     Food Stamp and Food Distribution Program.
       7 C.F.R. Sec. 1940.968(k)(3) (1994): States participating 
     in certain rural economic development programs are 
     ``encouraged to use minority banks (a bank which is owned by 
     at least 50 percent minority group members) for the deposit 
     and disbursement of funds.''
       7 C.F.R. Sec. 1942.17(p)(3)(iii) (1994): Applicants for 
     certain FmHA community facilities loans are ``encouraged to 
     use minority banks (a bank which is owned by at least 50 
     percent minority group members) for the deposit and 
     disbursement of funds.''
       7 C.F.R. Sec. 1942.472(c) (1994): Grantees of certain rural 
     housing and community development technical assistance and 
     training grants are ``encouraged to use minority banks (a 
     bank which is owned by at least 50 percent minority group 
     members) for the deposit and disbursement of funds.''
       7 C.F.R. Sec. 1944.526(a)(2)(i)(D) (1994): Preapplication 
     process for Technical and Supervisory Assistance Grant 
     program considers in determining applicant's eligibility 
     ``the estimated number of low income and low income minority 
     families the applicant will assist in obtaining affordable 
     adequate housing.''
       7 C.F.R. Sec. 1944.671(b) (1994): Equal Opportunity and 
     outreach requirements applicable to FmHA Housing Preservation 
     Grants program state that ``[a]s a measure of compliance, the 
     percentage of the individuals served by the HPG grantee 
     should be in proportion to the percentages of the population 
     of the service area by race/national origin.''
       7 C.F.R. Sec. Sec. 3015.13, 3016.21(h) (1994): ``Consistent 
     with the national goal of expanding opportunities for 
     minority business enterprises, recipients and subrecipients'' 
     of federal financial assistance administered by the 
     Department of Agriculture ``are encouraged to use minority 
     and women-owned banks. Upon request, awarding agencies will 
     furnish a listing of minority and women-owned banks to 
     recipients.''
       7 C.F.R. 3051 Appendix A (1994): OMB Circular A-133, Audits 
     of Institutions of Higher Education and Other Nonprofit 
     Institutions. ``11. Small and Minority Audit Firms. Small 
     audit firms and audit firms owned and controlled by socially 
     and economically disadvantaged individuals shall have the 
     maximum practicable opportunity to participate in contracts 
     awarded to fulfill the requirements of this circular.'' See 
     also OMB Circular A-128 (.19) (Uniform Audit Requirements for 
     State and Local Governments), 29 C.f.R. part 96 Appendix A 
     (1994).
       7 C.F.R. Sec. Sec. 3403.1, 3403.2 (1994): USDA regulations 
     implementing small business innovation grants program which 
     as one of its goals is to ``foster and encourage minority and 
     disadvantaged in technological innovation.'' For purposes of 
     this program ``minority and disadvantaged individual is 
     defined as a member of any of the following groups: Black 
     Americans, Hispanic Americans, Native Americans, Asian 
     Pacific Americans, or Subcontinent Asian Americans.''
       48 C.F.R. Sec. Sec. 419.201-72(a), 419.202-71(a) (1994): 
     The Department of Agriculture small disadvantaged business 
     regulations state that ``[t]he Department is required . . . 
     to establish fiscal year goals for the procurement preference 
     programs'' and mandate ``[establishing aggressive minority 
     and women-owned business goals based on the annual review of 
     advance acquisition plans.''
       48 C.F.R. Sec. 422.804-2 (1994): Affirmative action program 
     provision relating to the Department of Agriculture which 
     states that ``each contracting office awarding nonexempt 
     construction contracts maintains a current listing of covered 
     geographical areas subject to affirmative action requirements 
     specifying goals for minorities and women in covered 
     construction.''
       48 C.F.R. Sec. 452.215-71 (1994): Department of Agriculture 
     instructions for the preparation of technical and cost or 
     pricing proposals state that the contract offeror 
     ``[i]ndicate what positive efforts your company will take to 
     implement the concepts of equal employment under the proposed 
     contract'' and state the extent of minority enterprise 
     participation ``goals the contractor has set in the past five 
     (5) years and his actual performance against these goals.''
                                Banking
       12 U.S.C.S. Sec. 1441a(r-w): Provides for various 
     incentives, including ``preference points'' on proposals and 
     minority capital assistance programs, to preserve and expand 
     bank ownership by minorities and women; authorizes 
     establishment of Resolution Trust Corporation guidelines to 
     achieve parity in distribution of RTC contracts, and 
     ``reasonable goals'' for subcontracting, to minority and 
     women-owned businesses and firms; and provides a ``[m]inority 
     preference in acquisition of institutions in predominantly 
     minority neighborhoods.''\15\
       12 U.S.C.S. Sec. 1823(f)(12): Authorizes Federal Deposit 
     Insurance Corporation (FDIC) approval of minority-controlled 
     bank acquisitions by minority-controlled holding companies 
     without regard to asset size.
       12 U.S.C.S. Sec. 2219c: Requires that ``all institutions of 
     the Farm Credit System with more than 20 employees shall 
     establish and maintain an affirmative action program plan 
     that applies the affirmative action standards otherwise 
     applied to contractors of the Federal Government.''
       12 U.S.C.S. Sec. 2907: Any donation or sale on favorable 
     terms of bank branch in minority neighborhood to minority or 
     women-owned depository institution shall be a factor in 
     determining the seller or donor institution's compliance with 
     the Community Reinvestment Act.
       12 C.F.R. Sec. 4.63 (1994): Establishes Contracting 
     Outreach Program for the Office of Comptroller of the 
     Currency to ``ensure that minority and women-owned businesses 
     have the opportunity to participate, to the maximum extent 
     possible, in contracts awarded by the OCC.'' ``Minority means 
     any African American, Native American . . ., Hispanic 
     American, Asian-Pacific American, or Subcontinent-Asian 
     American.''
       12 C.F.R. Part 361, Sec. Sec. 361.2, 361.10 (1994): Federal 
     Deposit Insurance Corporation ``Minority and Women Outreach 
     Program'' states ``policy of the FDIC that minorities and 
     women and entities owned by minorities and women shall have 
     maximum practicable opportunity to participate in [FDIC] 
     contracts'' and requires prime contractors ``to carry out the 
     FDIC minority and women-owned business contracting policy in 
     the awarding of subcontracts to the fullest extent, 
     consistent with the efficient performance of the awarded 
     contract.'' For this purpose ``minority'' means ``any Black 
     American, Native American Indian, Hispanic American, or Asian 
     American.''
       12 C.F.R. Sec. Sec. 517.5, 517.7 (1994): The Minority, 
     Women, and individuals with Disabilities Outreach Program of 
     the Office of Thrift Supervision (OTS) defines ``[o]utreach 
     activities'' to include ``identification and registration of 
     minority-, women-owned (small and large) businesses'' and 
     ``[m]onitoring proposed purchases to assure that OTS 
     contracting staff understand and actively promote the 
     outreach program.'' Contract awarded guidelines state that 
     ``[t]he OTS Outreach Program Advocate shall work to 
     facilitate the maximum participation of minority and women-
     owned . . . businesses . . . in the OTS procurement of goods 
     and services.''
       12 C.F.R. Part 1507 (1994): Minority and Women Contracting 
     Outreach Program of the Thrift Depositor Protection Oversight 
     Board requires the Board's staff to formulate guidelines 
     providing opportunities, ``to the maximum extent possible, 
     for the inclusion of minorities and women,'' and entities 
     owned by them, in the performance of Board contracts; to 
     undertake specified outreach activities; and to report 
     periodically on minority and women-owned business 
     participation in the contracting process, and as 
     subcontractors on Board contracts. ``Minority'' means ``Black 
     American, Native American, Hispanic American, or Asian 
     American.''
       12 C.F.R. Part 1617 (1994): Minority and Women Outreach and 
     Contracting Program of the Resolution Trust Corporation (RTC) 
     describes a variety of outreach activities (Sec. 1617.11); 
     provides procedures for certification of minority and women-
     owned businesses (Sec. 1617.13); provides ``incentives'' and 
     ``bonus considerations'' to RTC prime contractors ``who 
     demonstrate a commitment to subcontract at least 25 percent 
     or more of the work'' to minority or women-owned firms 
     (Sec. 1617.30); and ``reserves the right to award a contract 
     directly to a MWOB either by technical competition or by con-
     competitive award.'' ``Technical and cost bonus points'' may 
     be awarded to contractors with an ``eligible subcontracting 
     plan'' for women and minorities (Sec. 1617.60). A special 
     outreach program is provided to promote participation of 
     minority and women-owned law firms in RTC legal services 
     contracting (Sec. 1617.90).
       13 C.F.R. Sec. Sec. 317.19(b), 317.35 (1994): ``No grant 
     shall be made . . . for any project'' under the Local Public 
     Works Capital Development and Investment Program ``unless at 
     least 10 percent of the amount of such grant will be expended 
     for contracts with and/or supplies from minority business 
     enterprises.'' All applications for assistance must contain 
     certification to that effect. ``Minority group member means a 
     citizen of the United States who is Negro, Spanish-speaking, 
     Oriental, Indian, Eskimo, or Aleut.'' (13 C.F.R. 317.2).
                                Commerce
       Executive Order 11625 (1971): Directs the Secretary of 
     Commerce ``[w]ith the participation of other Federal 
     departments and agencies . . . [t]o develop comprehensive 
     plans and specific program goals for the minority enterprise 
     program; establish regular performance monitoring and 
     reporting systems to assure that goals are being achieved; 
     and evaluate the impact of Federal support in achieving the 
     objectives established by the order.'' See also Executive 
     Order 12138 (Women-owned Business Enterprise Program).
       15 C.F.R. Sec. 24.21(h) (1994): Grantees and subgrantees of 
     certain grants and cooperative agreements to state and local 
     government ``are encouraged to use minority banks (a bank 
     which is owned at least 50 percent by minority group 
     members).''
       15 C.F.R. Sec. 917.11(d) (1994): A ``factor considered'' in 
     the approval of proposals under the 
      [[Page S3933]] Sea Grant Matched Funding Program ``will be 
     the potential of the proposed program to stimulate interest 
     in marine related careers among those individuals, for 
     example, minorities, women, and the handicapped whose 
     previous background or training might not have generated such 
     an interest.''
       15 C.F.R. Sec. 2301.3 (1994): The National 
     Telecommunications and Information Administration of the 
     Department of Commerce, in administering the Public 
     Telecommunications Facilities Program, ``will give special
      consideration to applications that foster ownership and 
     control of, operation of, and participation in public 
     telecommunications entities by minorities and women.''
       48 C.F.R. Sec. 1319.7003(a) (1994): Directs contracting 
     officers of the Commerce Department to ``provide assistance 
     to prime contractors to identify potential women-owned small 
     businesses. Such assistance is intended to aid prime 
     contractors in placing a fair proportion of subcontracts with 
     women-owned businesses.''

                             Communications

       47 U.S.C.S. Sec. 309(j)(4)(D): In radio licensing 
     proceedings, the Federal Communications Commission is 
     directed to prescribe regulations to ``ensure that small 
     businesses, rural telephone companies, and businesses owned 
     by members of minority groups and women are given the 
     opportunity to participate in the provision of spectrum-based 
     services, and, for such purposes, consider the use of tax 
     certificates, bidding preferences, and other procedures.''
       47 C.F.R. Sec. 73.3555(d)(2)(ii) (1994): Federal 
     Communications Commission (FCC) multiple ownership rules 
     provide exemption for ``minority-controlled'' broadcast 
     facilities from certain restrictions on the granting or 
     transfer of commercial TV broadcast stations which result in 
     an aggregate national audience exceeding twenty-five percent. 
     ``Minority means Black, Hispanic, American Indian, Alaska 
     Native, Asian and Pacific Islander.'' (italics in original).
       47 C.F.R. Sec. 76.977 (a), (b), (e) (1994): Minority and 
     educational programming used in lieu of deregulated 
     commercial leased access capacity. ``A cable operator 
     required by this section to designate channel capacity for 
     commercial use pursuant to 47 U.S.C. 532 may use any such 
     channel for the provision of programming from a qualified 
     minority programming source . . . whether or not such source 
     is affiliated with cable operator.'' ``Qualified minority 
     programming source'' means a source ``that devotes 
     substantially all of its programming to coverage of minority 
     viewpoints, or to programming directed at members of minority 
     groups, and which is over 50 percent minority-owned.'' 
     ``Minority'' includes ``Blacks, Hispanics, American Indians, 
     Alaskan Natives, Asians, and Pacific Islanders.''
       68 F.C.C. 2d 381, 411-412 (1978): FCC policy awards a 
     quality enhancement credit for minority ownership and 
     participation in station management in the comparative 
     licensing process. When faced with mutually exclusive 
     applications for the same broadcast channel, the FCC 
     initiates a proceeding to compare the merits of the competing 
     applicants based on specific factors including: 
     diversification of control of mass media communications, full 
     time participation in station management by owners, proposed 
     program service, past broadcast record, efficient use of 
     frequency, and character of the applicant. Under the FCC's 
     preferred policy, ownership and active participation in 
     station management by members of a minority group are 
     considered a plus to be weighed in with the other comparative 
     factors.
       68 F.C.C. 2d 983 (1978): FCC ``Distress Sale'' Policy. 
     Under this policy, existing licensees in jeopardy of having 
     their licenses revoked or whose licenses have been designated 
     for a renewal hearing are given the option of selling the 
     license to a minority-owned or controlled firm for up to 
     seventy-five percent of fair market value. The minority-
     assignee must meet the basic qualifications necessary to hold 
     a license under FCC regulations and must be approved by the 
     FCC before the transfer is consummated.

                                Defense

       10 U.S.C.S. Sec. 2196(j)(8): Selection criteria for 
     manufacturing engineering grant program established by the 
     Secretary of Defense require proposal by applicant ``to 
     achieve a significant level of participation by women, 
     members of minority groups, and individuals with disabilities 
     through active recruitment of students from among such 
     persons.''
       10 U.S.C.S. Sec. 2323: Establishes a goal of awarding five 
     percent of the total value of Department of Defense 
     procurement, research and development, military construction, 
     and operation and maintenance contracts to ``socially and 
     economically disadvantaged individuals,'' historically black 
     colleges and universities, and minority institutions in each 
     of the fiscal years from 1987 to 2000. This requirement was 
     extended to contracting activities of the Coast Guard and the 
     National Aeronautics and Space Administration by Sec. 7105 of 
     the Federal Acquisition Act of 1994, P.L. 103-355, 108 Stat. 
     3243, 3369 (1994) which also added a requirement that ``[t]o 
     the extent practicable,'' the head of each of these agencies 
     is to ``maximize the number of minority small business 
     concerns, historically Black colleges and universities, and 
     minority institutions participating in the program.''
       P.L. 103-335, 108 Stat. 2259, 2652, Sec. 8127(a) (1994): 
     ``in entering into contracts with private entities to carry 
     out environmental restoration and remediation of Kaho'olawe 
     Island, Hawaii, and the waters surrounding that island, the 
     Secretary of the Navy shall, to the maximum extent 
     practicable, give a preference to small business concerns and 
     small disadvantaged business concerns located in the State of 
     Hawaii. In giving the preference, the Secretary shall give 
     especial preference to businesses owned by Native 
     Hawaiians.''
       32 C.F.R. Sec. 3321(h) (1994): Department of Defense (DOD) 
     Uniform Administrative Requirements for Grants and 
     Cooperative Agreements to State and Local Governments 
     ``encourage'' DOD grantees and subgrantees to use minority 
     banks at least 50% owned by minority group members.
       48 C.F.R. Sec. 205.207(d)(iv) (1994): States that ``[f]or 
     acquisition being considered for historically black college 
     and university and minority institution
      set-aside, ``the proposed contract ``is being considered as 
     a 100 percent set-aside for historically black colleges 
     and universities (HBCUs) and minority institutions (MIs), 
     as defined by the clause at Sec. 252.226-7000 of the 
     Defense Acquisition Regulation Supplement.''
       48 C.F.R. Part 219, Sec. 219.000 (1994): DOD regulation 
     which implements ``goal'' in 10 U.S.C. 2323 to ``[a]ward five 
     percent of contract and subcontract dollars to small 
     disadvantaged business (SDB) concerns, historically black 
     colleges and universities (HBCUs), and minority institutions 
     (MIs).'' Specific requirements include data collection and 
     reporting (Sec. 219.202-5); eligibility criteria for program 
     participation (Sec. 219.703); subcontracting plan goals for 
     SDB concerns and institutions (Sec. 219.704); reviewing the 
     subcontracting plan (Sec. 219.705-4); solicitation provisions 
     and contract clauses (Sec. 219.708); and evaluation 
     preference for small disadvantaged business concerns (``by 
     adding a factor of ten percent to the price of all offers'') 
     (Sec. 219.7002). See also 48 C.F.R. Sec. 226.7000 (implements 
     the historically black college and university and minority 
     institution provisions of 10 U.S.C. Sec. 2323; Sec. 252.219-
     7005) (small business and small disadvantaged business 
     subcontracting plan on DOD contracts); Sec. 252.219.7005 
     (incentive for subcontracting with small businesses, small 
     disadvantaged businesses, historically black colleges and 
     universities, and minority institutions); Sec. 252.219-7006 
     (notice of evaluation preference for small disadvantaged 
     business concerns); and Sec. 252.226-7000 (notice of 
     historically black college or university and minority 
     institution set-aside).
       48 C.F.R. Chapter 2 Appendix I (1994): Pilot Mentor-Protege 
     Program is to ``provide incentives to major DOD contractors, 
     performing under at least one active approved subcontracting 
     plan negotiated with DOD or other Federal agencies, to assist 
     small disadvantaged businesses (SDBs) in enhancing their 
     capabilities to satisfy DoD and other contract and 
     subcontract requirements.''

                               Education

       20 U.S.C.S. Sec. 1047: Authorizes grants and contracts by 
     the Department of Education (ED) with ``historically black 
     colleges and universit[ies]'' and other institutions of 
     higher education serving a ``high percentage of minority 
     students'' for the purpose of strengthening their library and 
     information science programs, and establishing fellowships 
     and traineeships for that purpose.\16\
       20 U.S.C.S. Sec. 1063b: Authorizes ED grants to specified 
     postgraduate institutions ``determined by the Secretary [of 
     Education] to be making substantial contributions to the 
     legal, medical, dental, veterinary, or other graduate 
     education opportunities for Black Americans.''
       20 U.S.C.S. Sec. 1069f(c): Reservation of 25% of the excess 
     of certain educational appropriations for allocation ``among 
     eligible institutions at which at least 60 percent of the 
     students are African Americans, Hispanic Americans, Native 
     Americans, Asian Americans, Native Americans, Native 
     Hawaiians, or Pacific Islanders, or any combination 
     thereof.''
       20 U.S.C.S. Sec. 1070a-41: ``Priority'' in selection for 
     Model Program Community Partnership and Counseling Grants 
     given to program proposals ``directed at areas which have a 
     high proportion of minority, limited English proficiency, 
     economically disadvantaged, disabled, nontraditional, or at-
     risk students . . .''
       20 U.S.C.S. Sec. 1112d(d): ``Special consideration'' to be 
     given ``historically Black colleges and universities'' and to 
     institutions having at least 50% minority enrollment in 
     making grants for teacher training and placement.
       20 U.S.C.S. Sec. 1132b-2: In awarding facilities 
     improvement grants, the ED Secretary or each State higher 
     education agency ``shall give priority to institutions of 
     higher education that serve large numbers or percentages of 
     minority or disadvantaged students.''
       20 U.S.C.S. Sec. 1134e: In making grants for post-graduate 
     study, the ED Secretary shall ``consider the need to prepare 
     a larger number of women and individuals from minority 
     groups, especially from among such groups which have been 
     traditionally underepresented in professional and academic 
     careers,'' and shall accord a ``priority'' for awards to 
     ``individuals from minority groups and women'' pursuing study 
     in specified professional and career fields.
       20 U.S.C.S. Sec. 1134s: The ED Secretary ``shall carry out 
     a program to assist minority, low-income, or educationally 
     disadvantaged college students'' to pursue a degree and 
     career in law through an annual grant or contract.
       20 U.S.C.S. Sec. Sec. 1135c, 1135d: The ED Secretary shall 
     ``carry out a program of making 
      [[Page S3934]] grants to institutions of higher education 
     that are designed to provide and improve support programs for 
     minority students enrolled in science and engineering 
     programs as institutions with a significant minority 
     enrollment (at least 10 percent).'' Eligibility for such 
     grants is limited to ``minority institutions'' (minority 
     enrollment in excess of 50%) or other public or private 
     nonprofit institutions with at least 10 percent minority 
     enrollment.
       20 U.S.C.S. Sec. 1409(j)(2): The ED Secretary ``shall 
     develop a plan for providing outreach services'' to 
     historically Black colleges and universities, other higher 
     educational institutions with at least 25% minority student 
     enrollment, and ``underrepresented populations'' in order to 
     ``increase the participation of such entities'' in 
     competitions for certain grants, contracts, and cooperative 
     agreements.
       20 U.S.C.S. Sec. 1431(a)(3): ``Priority consideration'' for 
     fellowships and traineeships in special education and related 
     services shall be given to ``individuals from disadvantaged 
     backgrounds, including minority and individuals with 
     disabilities who are under represented in the teaching 
     profession or in the specialization in which they are being 
     trained.''
       20 U.S.C.S. Sec. 2986(b): A portion of state allotment of 
     critical skills improvement funds to be distributed for 
     various purposes, including ``recruitment or retraining of 
     minority teachers to become mathematics and science 
     teachers.''
       20 U.S.C.S. Sec. 3156(a): Program to assist local 
     educational agencies ``which have significant percentages of 
     minority students'' to conduct ``alternative curriculum'' 
     schools which ``reflect a minority composition of at least 50 
     percent'' and contribute to school desegregation efforts.
       20 U.S.C.S. Sec. 3916: Fifteen percent of National Science 
     Foundation funds available for science and engineering 
     education is to be allocated to faculty exchange and other 
     programs involving higher educational institutions with ``an 
     enrollment which includes a substantial percentage of 
     students who are members of a minority group.''
       20 U.S.C.S. Sec. 5205(d): No less than 10 percent of 
     Eisenhower Exchange Fellowship Program funds ``shall be 
     available only for participation by individuals who are 
     representative of United States minority populations.''
       20 U.S.C.S. Sec. 6031(c)(5): ED ``shall establish and 
     maintain initiatives and programs to increase the 
     participation'' of ``researchers who are women, African-
     American, Hispanic, American Indian and Alaskan Native, or 
     other ethnic minorities'' in the activities of various 
     authorized educational institutes.
       42 U.S.C.S. Sec. 292g(d)(3): For a three-year period 
     beginning on October 13, 1992, historically black colleges 
     and universities are exempted from provision rendering 
     certain institutions ineligible for student loan program 
     based on high loan default rate.
       42 U.S.C.S. Sec. 293a: ``Special consideration'' in 
     scholarship grant program to be given ``health profession 
     schools that have enrollments of under represented minorities 
     above the national average for health profession schools.''
       42 U.S.C.S. Sec. 293b(3): Institutional eligibility for 
     faculty fellowship program based on ``ability to . . . 
     identify, recruit and select individuals from under 
     represented minorities in the health profession'' with 
     potential for teaching and educational administration.
       42 U.S.C.S. Sec. 1862d: At least 12 percent of amounts 
     appropriated for the Academic Research Facilities 
     Modernization Program shall be reserved for historically 
     Black colleges and universities and other institutions which 
     enroll a substantial percentage of Black American, Hispanic 
     American, or Native American students.
       34 C.F.R. Sec. 7412 (1994): Department of Education (ED) 
     Uniform Administrative Requirements for Grants to 
     Institutions of Higher Education, Hospitals, and Nonprofit 
     Organizations ``encourage'' ED grantees and subgrantees to 
     use minority-owned banks. See also 34 C.F.R. 
     Sec. 80.21(h)(1994).
       34 C.F.R. Sec. 318.11(a)(15), (16) (1994): Includes 
     ``[t]raining minorities and individuals with disabilities'' 
     and ``minority institutions'' among several optional funding 
     priorities under special education training program.
       34 C.F.R. Sec. 461.33(a)(2)(ii) (1994): ``[P]articular 
     emphasis'' placed on training ``minority'' adult educators 
     under one aspect of adult education demonstration grant 
     program.
       34 C.F.R. Part 607, Sec. 607.2(b) (1994): An institution of 
     higher education is eligible to receive a grant under the 
     Strengthening Institutions Program even if it does not 
     satisfy certain other generally applicable state 
     authorization or accreditation requirements if its student 
     enrollment consists of specified percentages of designated 
     minority groups.
       34 C.F.R. Parts 608, 609 (1994): ``the Strengthening 
     Historically Black Colleges and Universities Program [HBCU] 
     provides grants to Historically Black Colleges and 
     Universities to assist these institutions in establishing and 
     strengthening their physical plants, academic resources and 
     student services so that they may continue to participate in 
     fulfilling the goal of equality of educational opportunity.'' 
     (Sec. 608.1).
       34 C.F.R. Sec. 637.1 (1994): ``the Minority Science 
     Improvement Program is designed to effect long-range 
     improvement in science education at predominantly minority 
     institutions and to increase the flow of under represented 
     ethnic minorities, particularly minority women, into 
     scientific careers.''
       34 C.F.R. Sec. 641.1 (1994): ``The Faculty Development 
     Fellowship Program provides grants to institutions of higher 
     education, consortia of institutions, and consortia of 
     institutions and nonprofit organizations to fund fellowships 
     for individuals from underrepresented minority groups to 
     enter or continue in the higher education professorate.''

                                 Energy

       42 U.S.C.S. Sec. 7141: The Secretary of Energy ``may 
     provide financial assistance in the form of loans to any 
     minority business enterprise under such rules as he shall 
     prescribe to assist such enterprises in participating fully 
     in research, development, demonstration, and contract 
     activities of the Department to the extent he considers 
     appropriate.''
       42 U.S.C.S. Sec. 13556: Provides that ``[t]o the extent 
     practicable, the head of each agency shall provide that the 
     obligation of not less than 10 percent of the total combined 
     amounts obligated for contracts and subcontracts by each 
     agency'' under the Energy Policy Act of 1992 ``shall be 
     expended with'' socially and economically disadvantaged small 
     businesses, historically Black colleges or universities, or 
     college and universities with more than 20 percent Hispanic 
     or Native American enrollment.
       P.L. 103-160, 107 Stat. 1547, 1956, Sec. 3159 (1993): 
     Provides, as a ``goal,'' that 5 percent of the combined total 
     of funds obligated by the Department of Energy for purposes 
     of carrying out national security programs for fiscal years 
     1994 through 2000 be allocated to contracts and subcontracts 
     with socially and economically disadvantaged small 
     businesses, historically black colleges and universities, and 
     minority institutions.
       10 C.F.R. Sec. 600.3 (1994): ``Socially and economically 
     disadvantaged'' firm or individual, for purposes of 
     Department of Energy (DOE) financial assistance rules, is 
     defined to include ``Black Americans, Hispanic Americans, 
     Native Americans, Asian-Pacific Americans, and other 
     specified minorities, or any other individual found to be 
     disadvantaged by the Small Business Administration under 
     Sec. 8(a) of the Small Business Act.''
       10 C.F.R. Sec. 799.2, 799.7 (1994): A requirement of DOE 
     loan guarantee program for waste projects that ``the borrower 
     agree to take positive efforts to maximize the utilization of 
     small and disadvantaged business concerns in connection with 
     the project . . .'' For this purpose, ``[d]isadvantaged 
     business concern means a concern which is at least 51 percent 
     owned by one or more socially and economically disadvantaged 
     individuals'' as defined by the Small Business Act.
       10 C.F.R. Part 800, Sec. 800.003 (1994): Under DOE 
     regulations setting forth policies and procedures for the 
     award and administration of loans to minority small business 
     enterprises, ``[a]n individual who is a citizen of the United 
     States and who is a Negro, Puerto Rican, American Indian, 
     Eskimo, Oriental, and Aleut, or is a Spanish speaking 
     individual of Spanish descent, is a member of a `minority' . 
     . .''
       10 C.F.R. Sec. 1040.101(b)(1), (2) (1994): Under DOE 
     regulations prohibiting discrimination in federally assisted 
     programs, the agency is to select recipients for compliance 
     reviews based, among other factors, on ``[t]he relative 
     disparity between the percentage of minorities, women, or 
     handicapped persons, in the relevant labor market, and the 
     percentage of minorities, women, or handicapped persons, 
     employed by the recipient'' or ``in the population receiving 
     program benefits.''

                              Environment

       P.L. 101-549, 104 Stat. 2399, 2708, Sec. 1001 (1990): ``In 
     providing for any research relating to the requirements of 
     the amendments made by the Clean Air Act Amendments of 1990 
     which uses funds of the Environmental Protection Agency, the 
     Administrator of the Environmental Protection Agency shall, 
     to the extent practicable, require that not less than 10 
     percent of total Federal funding for such research will be 
     made available to disadvantaged business concerns,'' defined 
     to mean any concern with 51% of the stock owned by Black 
     Americans, Hispanic Americans, Native Americans, Asian 
     Americans, Women or Disabled Americans.
       40 C.F.R. Sec. 33.240 (1994): Environmental Protection 
     Agency (EPA) procurement requirements provide that ``[i]t is 
     EPA policy to award a fair share of subagreements to small, 
     minority, and women's businesses. The recipient must take 
     affirmative steps to assure that small, minority, and women's 
     businesses are used when possible as sources of supplies, 
     construction, and services.''
       40 C.F.R. Sec. 35.936-7 (1994): Grantees of EPA state and 
     local assistance grants ``shall make positive efforts to use 
     small business and minority owned business sources of 
     supplies and services. Such efforts should allow these 
     sources the maximum feasible opportunity to compete for 
     subagreements to be performed using Federal grant funds.'' 
     See also 40 C.F.R. Part 35 APPENDIX C-1 (14.) (consulting 
     engineering agreement).
       40 C.F.R. Sec. 35.3145(d) (1994); State Water Pollution 
     Control Revolving Fund requirement ``for the participation of 
     minority and women owned businesses (MBE/WBEs) will apply to 
     assistance in an amount equaling the grant. To attain 
     compliance with MBE/WBE requirements, the [regional 
     administrator] will negotiate an overall `fair share' 
     objective with the State for MBE/WBE participation on these 
     SRF funded activities. A fair share objective should be based 
     on the amount of the capitalization grant award or 
      [[Page S3935]] other State established goals.'' See also 40 
     C.F.R. Sec. 35.4066(g) (1994) (grants for technical 
     assistance).
       40 C.F.R. Sec. 35.6580 (1994): Recipients under Cooperative 
     Agreements and Superfund State Contracts for Superfund 
     Response Actions ``must comply with six steps . . . to insure 
     that MBEs, WBEs, and small businesses are used whenever 
     possible as sources of supplies, construction, and 
     services,'' including establishment of ``an annual `fair 
     share' objective for MBE and WBE use.''

                    General Services Administration

       41 C.F.R. Sec. Sec. 105-71.121(j), 105-72.302(j) (1994): 
     General Services Administration (GSA) Uniform Administrative 
     Requirements for Grants and Cooperative Agreements to State 
     and Local Governments ``encourage'' recipients to use 
     minority-owned and women-owned banks.
       41 C.F.R. Sec. 105-72.504(b) (1994):\17\ All recipients of 
     GSA grants and agreements awarded to institutions of higher 
     education, hospitals, and other non-profit organizations are 
     to establish written procurement procedures to provide for 
     ``positive efforts . . . to utilize small businesses, 
     minority-owned businesses, and women's business enterprises, 
     whenever possible'' and to ensure that such businesses ``are 
     utilized to the fullest extent practicable.''
       48 C.F.R. Sec. 552.219-9 (1994): Small business 
     subcontracting plan prescribed for General Service 
     Administration contracts requires ``[g]oals, expressed in 
     terms of percentages of total planned subcontracting dollars, 
     for the use of small business concerns, small disadvantaged 
     business concerns and, if an individual contract is involved, 
     women-owned small business concerns as subcontractors.''

                       Health and Human Services

       42 U.S.C.S. Sec. 3027: State plans for grant program on 
     aging ``shall provide assurances that special efforts will be 
     made to provide technical assistance to minority providers of 
     services.''
       42 U.S.C.S. Sec. 3035d: Provides that the Assistant HHS 
     Secretary ``shall carry out, directly or through grants or 
     contracts, special training programs and technical assistance 
     designed to improve services to minorities'' under the Older 
     Americans Act.
       42 C.F.R. Sec. 52c.2 (1994): Minority Biomedical Research 
     Support Program makes grants to higher educational 
     institutions with 50 percent or other ``significant 
     proportion'' of ethnic minority enrollment.
       42 C.F.R. Sec. 62.57(h) (1994): Among factors considered in 
     making certain State loan repayment grants to State 
     applicants is ``[t]he extent to which special consideration 
     will be extended to medically underserved areas with large 
     minority populations.''
       42 C.F.R. Sec. 64a.105(d)(2) (1994): ``Preferred service'' 
     for purposes of obligated service requirement for mental 
     health traineeships includes service in any public or private 
     nonprofit entity serving 50 percent or more specified racial 
     or ethnic minorities.
       45 C.F.R. Sec. Sec. 74.12(h), 92.21(h), 602.21(h) (1994): 
     Department of Health and Human Services (HHS) general 
     administration requirements ``encourage'' grantees and 
     subgrantees to use minority banks at least 50% owned by 
     minority group members. Similar provisions may be found at 45 
     C.F.R. Sec. Sec. 1050.13, 1157.21, 1174.21, 1183.21, and 
     1234.21.
       45 C.F.R. Sec. 1010.30-2(c)(1),(2) (1994): Civil rights 
     program requirements of Community Service Act grantees 
     provide that the Office of Human Rights will consider when 
     selecting for compliance reviews ``[t]he relative disparities 
     between the percentage of eligible minority or female 
     populations, if appropriate, receiving program benefits and 
     the percentage of eligible minorities or females, if 
     appropriate, in the eligible population.''
       48 C.F.R. Sec. 319.705-4(d)(i)(ii) (1994): HHS small 
     disadvantaged business subcontracting regulation require 
     contracting officer to insure that ``[s]ubcontracing goals 
     for small and small disadvantaged business concerns are 
     specifically set forth in each contract or modification over 
     the statutory thresholds . . .'' See also Sec. Sec. 319.705-
     6, 319.706.

                     Housing and Urban Development

       24 C.F.R. Sec. 84.22(j):\18\ All recipients of Department 
     of Housing and Urban Development (HUD) grants and agreements 
     awarded to institutions of higher education, hospitals, and 
     other non-profit organizations ``shall be encouraged to use 
     women-owned and minority-owned banks (a bank which is owned 
     at least 50 percent by women or minority group members).'' 
     Same provisions apply to use of lump-sum grants under this 
     program, 24 C.F.R. Sec. 84.82(c)(2), a related HUD state and 
     local grant and cooperative agreement program, 24 C.F.R. 
     Sec. 85.21(h) (1994), and comprehensive planning assistance 
     grants at 24 C.F.R. Sec. 600.410(k)(2) (1994).
       24 C.F.R. Sec. 84.44(b): All recipients of HUD grants and 
     agreements awarded to institutions of higher education, 
     hospitals, and other non-profit organizations are to 
     establish written procurement procedures to provide for 
     ``positive efforts . . . to utilize small businesses, 
     minority-owned businesses, and women's business enterprises, 
     whenever possible'' and to ensure that such businesses ``are 
     utilized to the fullest extent practicable.'' Same provisions 
     apply to procurement standards used by recipients for the 
     procurement of supplies, equipment, real property and other 
     services with federal funds. 24 C.F.R. Sec. 84.84(e)(2)(i).
       24 CFR APPENDIX A and B to SUBTITLE A Sec. 425(a)(8) 
     (1994): Rating factors for award of certain HUD Public and 
     Indian Housing Home Ownership funds to accord maximum 10 
     points for ``[t]he extent to which the applicant demonstrates 
     a firm commitment to promoting the use of minority business 
     enterprises and women-owned businesses, especially resident-
     owned businesses'' . . . ``but may not include awarding 
     contracts solely or in part on the basis of race or gender.''
       24 F.F.R. Sec. 572.320(e) (1994): HUD will assign points in 
     rating applications for certain single-family home ownership 
     grants based on ``[t]he extent to which the applicant 
     demonstrates a firm commitment to promoting the use of 
     minority business enterprises and women-owned businesses'' . 
     . . ``but may not include awarding contracts solely or in 
     part on the basis of race or gender.''
       24 C.F.R. Sec. Sec. 850.33(o), .35(b), .39(b)(9) (1994): 
     Applications for Section 8 Housing Assistance Programs and 
     Section 202 Direct Loan Program must include a ``description 
     of minority and women representation in the ownership of the 
     project'' and ``a minority and women-owned business 
     development plan which shall contain specific and measurable 
     goals and an affirmative strategy to promote awareness and 
     participation of such businesses in the contracting and 
     procurement activities generated by the project.'' In 
     addition ``[m]ore favorable consideration will be given to 
     projects with a higher percentage of minority or women 
     representation in the ownership of the project.''
       24 C.F.R. Sec. 968.110(b) (1994): Public housing 
     modernization program requirements include: ``the [public 
     housing authority] shall take every action to meet 
     Departmental goals for awarding modernization contracts to 
     minority business enterprises. The PHA shall take appropriate 
     affirmative action to assist women's business enterprises.''
       24 C.F.R. Sec. 968.320(d)(7)(vii): Public Housing 
     Modernization program includes requirement of comprehensive 
     plan certifying that ``[t]he PHA has adopted the goal of 
     awarding a specified percentage of the dollar value of the 
     total of the modernization contracts, to be awarded during 
     subsequent FFYs, to minority business enterprises and will 
     take appropriate affirmative action to assist resident-
     controlled and women's business enterprises . . .''
       48 C.F.R. Sec. 2419.901 (1994): Department of Housing and 
     Urban Development (HUD) Office of Socially Disadvantaged 
     Business Utilization is responsible for ``Department-wide 
     goals'' for contract awards ``to women-owned businesses'' and 
     monitoring and reporting with respect thereto.
       48 C.F.R. Sec. 2426.101 (1994): States the policy of the 
     Department of Housing and Urban Development ``to foster and 
     promote Minority Business Enterprise (MBE) participation in 
     its procurement program, to the extent permitted by law and 
     consistent with its primary mission.'' For this purpose, 
     ``minority'' is defined as ``Black Americans, Hispanic 
     Americans, Native Americans, Asian Pacific Islanders and 
     Asian Indian Americans, and Hasidic Jewish Americans.'' See 
     also 48 C.F.R. Sec. 2452.219-70 (Small Business and Small 
     Disadvantaged Business Subcontracting Plan to include 
     percentage goals).

                                Interior

       25 C.F.R. Sec. 276.3(c) (1994): Uniform administrative 
     requirements for grants by the Bureau of Indian Affairs 
     ``encourage'' grantees to use minority banks.
       43 C.F.R. Sec. Sec. 12.61(h), 12.922(j) (1994): Department 
     of Interior Uniform Administrative Requirements for Grants 
     and Cooperative Agreements to State and Local Governments 
     ``encourage'' grantees and subgrantees to use minority banks 
     at least 50% owned by minority group members.
       43 C.F.R. Sec. 12.944(b) (1994): Department of Interior 
     procurement requirements provide that ``[i]t is EPA policy to 
     award a fair share of subagreements to small, minority, and 
     women's businesses. The recipient must take affirmative steps 
     to assure that small, minority, and women's businesses are 
     used when possible as sources of supplies, construction, and 
     services.''
       43 C.F.R. Sec. 27.6 (1994): Affirmative action plan 
     requirements for recipient of financial assistance from the 
     Department of Interior include ``specific goals and specific 
     timetables to which its efforts will be directed, to correct 
     all deficiencies and thus to increase materially the 
     participation of minorities and women in all aspects of its 
     operation.''
       43 C.F.R. Sec. 1419.901 (1994): Department of Interior 
     socioeconomic program regulations state that ``[a]nnual goals 
     for contract awards to women-owned businesses shall be 
     established as prescribed in 1419.202-70.''

                                Justice

       P.L. 103-322, 108 Stat. 1796, 1860, Sec. 31001 (1994): Not 
     less than 10 percent of the amount paid from the Local 
     Government Fiscal Assistance Fund created by the Violent 
     Crime Control Act shall be expended on contracts or 
     subcontracts with socially and economically disadvantaged and 
     women-owned small businesses, historically Black colleges and 
     universities, and higher educational institutions with more 
     than 40 percent hispanic student enrollment.
       28 C.F.R. Sec. O.18a (1994): Provides that Director of the 
     Office of Small and Disadvantaged Business Utilization within 
     the Department of Justice shall ``[e]stablish Department 
     goals for the participation by small businesses, including 
     small businesses owned and controlled by socially and 
     economically disadvantaged individuals, in Department 
     procurement contracts.''
       28 C.F.R. Sec. 42.206 (c)(1) (1994): Recipients of Criminal 
     Justice Improvement Act funds shall be selected for post-
     award compliance reviews in part on the basis of ``[t]he 
     relative 
      [[Page S3936]] disparity between the percentage of 
     minorities, or women, in the relevant labor market, and the 
     percentage of minorities, or women, employed by the 
     recipient.''
       28 C.F.R. Sec. 66.21(h) (1994): Uniform requirements by the 
     Justice Department for administration of state and local 
     grants and cooperative agreements ``encourage'' grantees and 
     subgrantees to use minority banks at least 50 percent owned 
     by minority groups.

                                 Labor

       29 U.S.C.S. Sec. 718b(b): Directs the Commissioner of the 
     Rehabilitation Services Administration to develop an 
     ``outreach'' policy for ``recruitment of minorities into the 
     field of vocational rehabilitation, counseling and related
      disciplines'' and for ``financially assisting Historically 
     Black Colleges and Universities, Hispanic-serving 
     institutions of higher education, and other institutions 
     of higher education whose minority enrollment is at least 
     50 percent.''
       29 U.S.C.S. Sec. 771a: Authorizes grants for personnel 
     projects relating to training, traineeships and related 
     activities to historically Black colleges and universities 
     and other higher educational institutions with at least 50% 
     minority student enrollment.
       20 C.F.R. Sec. 627.430(g) (1994): Recipients and 
     subrecipients of Job Training Partnership Act funds are 
     ``encouraged to use minority-owned banks (a bank which is 
     owned at least 50 percent by minority group members).''
       20 C.F.R. Sec. 653.111 (a), (b)(3) (1994): State agencies 
     participating in the administration of Services for Migrant 
     and Seasonal Farmworkers, under the United States Employment 
     Service, are to develop affirmative action plans which 
     contain ``a comparison between the characteristics of the 
     staff and the workforce and determine if the composition of 
     the local office staff(s) is representative of the racial and 
     ethnic characteristics of the workforce in the local office 
     service area(s).'' ``On a statewide basis, staff 
     representative of the racial and ethnic characteristics in 
     the workforce shall be distributed in substantially the same 
     proportion among (1) all `job groups' . . . and (2) all 
     offices in the plan(s).''
       29 C.F.R. Sec. Sec. 89.52(d), 89.72(d), 95.22(j), 97.21(h), 
     1470.21(h) (1994): Administrative requirements for Department 
     of Labor (DOL) Project Grants to State and Local Governments, 
     higher educational institutions, and other programs, 
     ``encourage'' grantees to use minority banks.
       29 C.F.R. Sec. 95.44(b) (1944):\19\ All recipients of DOL 
     grants and agreements awarded to institutions of higher 
     education, hospitals, and other non-profit organizations are 
     to establish written procurement procedures to provide for 
     ``positive efforts . . . to utilize small businesses, 
     minority-owned businesses, and women's business enterprises, 
     whenever possible'' and to ensure that such businesses ``are 
     utilized to the fullest extent practicable.''
       48 C.F.R. Part 2919, Sec. 1919.202-70 (1994): Small 
     disadvantaged business program regulations of the Department 
     of Labor require ``Heads of Contracting Activities [to] 
     develop annual goals for each category of small business and 
     small disadvantaged business utilization programs, which 
     shall include projected acquisition awards to small 
     businesses, minority businesses, 8(a) concerns, women-owned 
     businesses, and HBCU.''

             National Aeronautics and Space Administration

       42 U.S.C.S. Sec. 2473b: NASA Administrator is required to 
     annually establish a goal of at least eight percent of the 
     total value of prime and subcontracts awarded in support of 
     authorized programs to be made to small disadvantaged 
     business and minority educational institutions.
       48 C.F.R. Sec. 1819.705-4 (1994): Small disadvantaged 
     business subcontracting regulation of the National 
     Aeronautics and Space Administration (NASA) states that 
     ``NASA contracting officers may accept as an element of a 
     subcontracting plan the prime contractor's intention to use 
     total small business, small disadvantaged business, women-
     owned business, historically black college and university, or 
     minority educational institution set-asides in awarding 
     subcontracts so long as such set-asides are competitive and 
     awards are made at reasonable prices.'' See also 
     Sec. 1819.7003 (agency goal of 8 percent of total value of 
     prime and subcontracts for disadvantaged businesses); and 
     Sec. 1815.219-76 (prescribed clause for NASA contracts 
     incorporating 8 percent goal for ``small business concerns or 
     other organizations owned or controlled by socially and 
     economically disadvantaged individuals (including women), 
     Historically Black Colleges and Universities, and minority 
     education institutions'').

                             Small Business

       41 U.S.C.S. Sec. 417a: ``Each Federal agency shall report 
     to the Office of Federal Procurement Policy the number of 
     small businesses owned and controlled by women and the number 
     of small business concerns owned and controlled by socially 
     and economically disadvantaged businesses, by gender, that 
     are first time recipients of contracts from such agency.''
       13 C.F.R. Sec. 115.30(c) (1994): The Small Business 
     Administration (SBA) Surety Bond Guarantee program 
     indemnifies sureties for 90 percent of losses incurred on 
     certain bonds ``issued on behalf of a small concern owned and 
     controlled by socially and economically disadvantaged 
     individuals,'' including ``Black Americans, Hispanic 
     Americans, Native Americans, Asian Pacific Americans, 
     Subcontinent Asian Americans, and other minorities or any 
     other individual found to be disadvantaged by SBA . . .''
       13 C.F.R. 125.4 (1994): Small Business Administration 
     requirement ``[t]hat separate goals for the participation by 
     small business concerns and small disadvantaged business in 
     Government procurement contracts and subcontracts thereunder 
     shall be established annually by the head of each Federal 
     agency following consultation with the SBA, and that the 
     Administrator of the Office of Federal Procurement Policy 
     shall establish the goal whenever there is disagreement 
     between a Federal agency head and the SBA . . .''
       13 C.F.R. Sec. 143.21(h) (1994): Grantees and subgrantees 
     under SBA program of grants and cooperative agreements with 
     state and local governments
      are ``encouraged to use minority banks (a bank which is 
     owned at least 50 percent by minority group members).''

                  State Department and Foreign Affairs

       22 U.S.C.S. Sec. 4852(d): Not less than 10 percent of the 
     amount appropriated for diplomatic construction or designed 
     projects each fiscal year shall be allocated to the extent 
     practicable for contracts with American minority contractors.
       22 U.S.C.S. Sec. 4864(e): Not less than 10 percent of the 
     amount of funds obligated for local guard contracts for 
     Foreign Service buildings shall be allocated to the extent 
     practicable for contracts with minority small business 
     contractors.
       P.L. 103-306, 108 Stat. 1608, Sec. 555 (1994): Provides for 
     a 10 percent set-aside of the aggregate amount of certain 
     appropriations to the Agency for International Development--
     the Development Assistance Fund, Population, Development 
     Assistance, and the Development Fund for Africa--for socially 
     and economically disadvantaged U.S. businesses and private 
     voluntary organizations, historically black colleges and 
     universities, and higher educational institutions with more 
     than 40 percent Hispanic student enrollment.
       Government procurement agreements. The United States has 
     entered into procurement obligations under the North American 
     Free Trade Agreement (NAFTA) (Chapter Ten) and the Uruguay 
     Round Agreement on Government Procurement under which the 
     United States agrees, among other things, to accord national 
     treatment to products, services, and suppliers of other 
     parties with respect to government contracts entered into by 
     named agencies above certain threshold amounts. In both the 
     NAFTA and the Uruguay Round Agreement (as well as in earlier 
     trade agreements), the United States has taken a reservation 
     stating that agreement obligations will not apply to set 
     asides on behalf of small and minority businesses (NAFTA, 
     Chapter 10, Annex 1001.2b, General Notes, Schedule of the 
     United States, Note 1; Uruguay Round Agreement on Government 
     Procurement, Annex of the United States, General Note 1).
       22 C.F.R. Sec. 145.44(b) (1944): All recipients of 
     Department of State grants and cooperative agreements awarded 
     to institutions of higher education and other non-profit 
     organizations are to establish written procurement procedures 
     to provide for ``positive efforts . . . to utilize small 
     businesses, minority-owned businesses, and women's business 
     enterprises, whenever possible'' and to ensure that such 
     businesses ``are utilized to the fullest extent 
     practicable.'' Same provisions apply pursuant to uniform 
     administrative requirements prescribed by 22 C.F.R. 518.44(b) 
     (1994).
       48 C.F.R. Sec. 652.219-70 (1994): Clause in Department of 
     State contracts requiring disadvantaged and minority 
     subcontracting goals. See also 48 C.F.R. 
     Sec. Sec. 619.201(b), 619.708-70.
       48 C.F.R. Sec. 706.302-71 (1994): Agency for International 
     Development (AID) requirement that ``[e]xcept to the extent 
     otherwise determined by the Administrator, not less than ten 
     percent of amounts made available for development assistance 
     and for assistance for famine recovery and development in 
     Africa shall be used only for activities of disadvantaged 
     enterprises,'' which includes minorities and women.
       48 C.F.R. Part 419 (1994): Socioeconomic Program policies 
     of AID state that ``[w]here practicable and desirable, small 
     business and minority goals will be established'' for 
     procuring activities (Sec. 719.270(e)); and mandates that the 
     AID Office of Small Disadvantaged Business develop ``a plan 
     of operation designed to increase the share of contracts 
     awarded to small business concerns, including small minority 
     business enterprises'' (Sec. 719.271-2(6)). Disadvantaged 
     enterprises include socially and economically disadvantaged 
     concern, historically black colleges and universities and 
     higher educational institutions with more than 40 percent 
     Hispanic student enrollments (Sec. Sec. 726.201, 752.226-
     1,2).

                             Transportation

       49 U.S.C.S. Sec. 47107(e)(1): Requires federally aided 
     airport operators to insure ``to the maximum extent 
     practicable'' that at least 10% of contracts for consumer 
     services to the public be placed with ``small business 
     concerns owned and controlled by a socially and economically 
     disadvantaged individual . . .'' The statute incorporates the 
     Small Business Act definition of that term ``except that 
     women are presumed to be socially and economically 
     disadvantaged.'' (49 U.S.C.A. Sec. 47113(a)(2)).
       P.L. 102-240, 105 Stat. 1914, 1919, Sec. 1003(b) (1991): 
     ``Except to the extent that the Secretary [of Transportation] 
     determines otherwise, not less than 10 percent of the amounts 
     authorized to be appropriated'' under various Titles of the 
     Intermodal Surface Transportation Act of 1991 ``shall be 
     expended with 
      [[Page S3937]] small business concerns owned and controlled 
     by socially and economically disadvantaged individuals;'' the 
     statute incorporates the SBA presumption in favor of racial 
     minorities (15 C.F.R. Sec. 637(d) and further provides that 
     ``women shall be presumed to be socially and economically 
     disadvantaged individuals for purposes of this subsection.''
       49 C.F.R. Part 23, subpart C (1994): Minority-business 
     enterprise program requirements for recipients and applicants 
     under Department of Transportation financial assistance 
     programs. DOT approved MBE affirmative action programs are to 
     include recipient's ``overall goals and a description of the 
     methodology to be used in establishing them'' (Sec. 23.43) 
     and separate ``contract goals for firms owned and controlled 
     by minorities and firms owned and controlled by women, 
     respectively'' (Sec. 23.45). Rules for counting MBE 
     participation toward meeting
      applicable goals (Sec. 23.47). The regulations further 
     provide that a prime contractor unable to satisfy a 
     particular contract's minority goal may nevertheless be 
     awarded the contract if its ``best efforts'' were made to 
     achieve the goal (Sec. Sec. 23.45(g)(2)(ii), 23.45(h)). 
     Several elements are considered in determining whether a 
     prime contractor failing to meet its goal in fact made a 
     good faith effort to comply (Sec. 23.45, app. A).
       49 C.F.R. Part 23, subpart D (1994). Implementation of 
     Sec. 105(f) of the Surface Transportation Assistance Act of 
     1982. DOT regulations establish a rebuttable presumption that 
     women, Black-Americans, Hispanics, Native Americans, Asian-
     Pacific Americans, Asian-Americans and those individually 
     certified under Sec. 8(a) of the Small Business Act are 
     socially and economically disadvantaged (Sec. 23.62). 
     Recipients of surface transportation funds must establish 
     overall goal for disadvantaged business participation on 
     funded projects (Sec. 23.64) and, absent a waiver by the DOT 
     Secretary, must insure that at least ten percent of monies 
     expended on federally assisted projects go to such 
     enterprises (Sec. Sec. 23.61(a), 23.63). ``If a recipient 
     fails to meet an approved goal, it shall have the opportunity 
     to explain to the Administrator of the concerned Department 
     element why the goal could not be achieved and why meeting 
     the goal was beyond the recipient's control,'' failing which 
     the recipient is subject to ``appropriate remedial sanction'' 
     (Sec. 23.68).
       49 C.F.R. Sec. 23.95 et seq. (1994): Minority business 
     enterprise participation standards under Sec. 511(A)(17) of 
     the Airport and Airway Improvement Act of 1982 provide that 
     sponsors of airport improvement projects ``shall establish an 
     overrall goal for the participation of DBE's'' as 
     concessionaires and ``[t]o the extent practicable, shall seek 
     to obtain DBE participation in all types of concession 
     activities.'' ``Where not prohibited by state or local law 
     and determined . . . to be necessary to meet DBE goals, 
     procedures to implement DBE set-asides shall be established. 
     The DBE plan shall specify the concessions to be set-aside.''
       49 C.F.R. Sec. 265.13 (1994): Federal Railroad 
     Administration regulations barring discrimination in 
     federally assisted programs require ``where there are 
     deficiencies based on past practices, and with respect to 
     future plans for hiring and promoting employees or awarding 
     contracts, the development of specific goals and timetables 
     for the prompt achievement and maintenance of full 
     opportunities for minority persons and MBEs with respect to 
     programs, projects and activities subject to this subpart.

                            Veterans Affairs

       38 C.F.R. Sec. 43.21(h) (1994): Department of Veterans 
     Affairs Uniform Administrative Requirements for Grants and 
     Cooperative Agreements to State and Local Governments 
     ``encourage'' grantees and subgrantees to use minority banks 
     at least 50% owned by minority group members.
       48 C.F.R. Sec. 819.202-5(c) (1994): Department of Veterans 
     Affairs regulations require ``all acquisition activities [to] 
     submit information and procurement preference goals'' for 
     ``minority direct business awards,'' ``women-owned business 
     awards,'' and ``[s]ubcontracts to be awarded to small 
     disadvantaged business concerns.''

                                 Other

       36 C.F.R. Part 906 (1994): Affirmative action policy and 
     procedures, including goals and timetables for women and 
     minorities, ``to assure full minority participation in 
     activities and benefits that result from implementation of 
     the Pennsylvania Avenue Plan--1974.''
       36 C.F.R. Sec. 1207.21(h) (1994): National Archives and 
     Records Administration Uniform Administrative Requirements 
     for Grants and Cooperative Agreements to State and Local 
     Governments ``encourage'' grantees and subgrantees to use 
     minority banks at least 50% owned by minority group members.
       44 C.F.R. Sec. Sec. 13.21(h) (1994): Federal Emergency 
     Management Agency Uniform Administrative Requirements for 
     Grants and Cooperative Agreements to State and Local 
     Governments ``encourage'' grantees and subgrantees to use 
     minority banks at least 50% owned by minority group members.


                   equal employment opportunity laws

       The evolution of federal law and policy regarding 
     affirmative action in employment may be traced to a series of 
     executive orders dating to the 1960's which prohibit 
     discrimination and require affirmative action by contractors 
     with the federal government. The Office of Federal Contract 
     Compliance Programs, an arm of the U.S. Department of Labor, 
     currently enforces the E.O. 11246, as amended, by means of a 
     regulatory program requiring larger federal contractors, 
     those with procurement of construction contracts in excess of 
     $50,000, to make a ``good faith effort'' to attain ``goals 
     and timetables'' to remedy underutilization of minorities and 
     women. Another early Executive Order, No. 11478, was a 
     precursor to the 1964 Civil Rights Act and mandates 
     affirmative action hiring and employment policies by all 
     federal executive department and agencies.
       Public and private employers with 15 or more employees are 
     also subject to a comprehensive code of equal employment 
     opportunity regulation under Title VII of the 1964 Civil 
     Rights Act.\20\ Except as may be imposed by court order to 
     remedy ``egregious'' violations of the law, or by consent 
     decree to settle pending claims, however, there is no general 
     statutory obligation on employers to adopt affirmative action 
     measures. But the EEOC has issued guidelines to protect 
     employers and unions from charges of ``reverse 
     discrimination'' when
      they voluntarily take to correct the effects of past 
     discrimination.\21\ Federal departments and agencies, by 
     contrast, are required to periodically formulate 
     affirmative action plans for their employees and a 
     ``minority recruitment program'' to eliminate minority 
     ``underrepresentation'' in specific federal job 
     categories.
       Section 717 of 1972 Amendments to Title VII of the 1964 
     Civil Rights Act empowers the Equal Employment Opportunity 
     Commission to enforce nondiscrimination policy in federal 
     employment by ``necessary and appropriate'' rules, 
     regulations, and orders and through ``appropriate remedies, 
     including reinstatement or hiring of employees, with or 
     without backpay.''\22\ Each federal department and agency, in 
     turn, is required to prepare annually a ``national and 
     regional equal employment opportunity plan'' for submission 
     to the EEOC as part of ``an affirmative program of equal 
     employment opportunity for all . . . employees and applicants 
     for employment.''\23\
       Section 717 was reinforced in 1978 when Congress enacted 
     major federal civil service reforms including a mandate for 
     immediate development of a ``minority recruitment program'' 
     designed to eliminate ``underrepresentation'' of 
     minority groups in specific federal job categories.\24\ The 
     EEOC and Office of Personnel Management have issued rules to 
     guide implementation and monitoring of minority recruitment 
     programs by individual federal agencies. Among various other 
     specified requirements, each agency plan ``must include 
     annual specific determinations of underrepresentation for 
     each group and must be accompanied by quantifiable indices by 
     which progress toward eliminating underrepresentation can be 
     measured.''\25\
       In addition, the following statutes and regulations relate 
     to employment policies of the federal government or under 
     federal grant and assistance programs:
       5 U.S.C. Sec. 4313(5): Performance appraisal in the Senior 
     Executive Services to take account of individuals' ``meeting 
     affirmative action goals, achievement of equal employment 
     opportunity requirements, and compliance with merit 
     principles. . .''\26\
       5 U.S.C. Sec. 7201: Establishes a ``Minority Recruitment 
     Program'' for the Executive Branch and directs each Executive 
     agency, ``to the maximum extent possible,'' to ``conduct a 
     continuing program for the recruitment of members of 
     minorities for positions in the agency . . . in a manner 
     designed to eliminate underrepresentation of minorities in 
     the various categories of civil service employment within the 
     Federal service, with special efforts directed at recruiting 
     in minority communities, in educational institutions, and 
     from other sources from which minorities can be recruited.''
       22 U.S.C. Sec. 4141(b): Establishes the Foreign Service 
     Internship Program ``to promote the Foreign Service as a 
     viable and rewarding care opportunity for qualified 
     individuals who reflect the cultural and ethnic diversity of 
     the United States. . .''
       29 U.S.C. Sec. 1781(a): ``A contractor subject to the 
     affirmative action obligations of Executive Order 11246 . . . 
     may establish or participate in training programs pursuant to 
     this section . . . which are designed to assist such 
     contractors in meeting the affirmative action obligations of 
     such Executive Order.''
       42 U.S.C. Sec. 282(h): The Secretary of HHS, and the 
     National Institutes of Health, ``shall, in conducting and 
     supporting programs for research, research training, 
     recruitment, and other activities, provide for an increase in 
     the number of women and individuals from disadvantaged 
     backgrounds (including racial and ethnic minorities) in the 
     fields of biomedical and behavioral research.''
       45 U.S.C. Sec. Sec. 797b, 907, 1004: First right to hire a 
     certain previously separated or furloughed railroad employees 
     subject to exceptions for vacancies covered by ``(1) an 
     affirmative action plan, or a hiring plan designed to 
     eliminate discrimination, that is required by Federal or 
     State statute, regulation, or Executive order, or by the 
     order of a Federal court or agency, or (2) a permissible 
     voluntary affirmative action plan.''
       Executive Order 11246: Prohibits employment discrimination 
     because of race, color, religion, sex, or national origin by 
     nonexempt federal government contractors and requires 
     inclusion of an affirmative action clause in all covered 
     federal contracts for procurement of goods and services. 
     Pursuant to Labor Department regulations, larger federal 
     contractors are required to 
      [[Page S3938]] adopt goals and timetables to correct 
     ``underutilization'' of minorities and women. See 41 C.F.R. 
     Part 60 (discussed infra).
       Executive Order 11478: States the policy of the United 
     States government ``to provide equal opportunity in Federal 
     employment for all persons, to prohibit discrimination 
     because of race, color, religion, sex, national origin, 
     handicap, or age, and to promote the full realization of 
     equal employment opportunity through a continuing affirmative 
     program in each executive agency and department.''
                          Federal Regulations

       5 C.F.R. Parts 729, 720 APP. (1994): Affirmative Employment 
     Programs of the Office of Personnel Management and Guidelines 
     for Development of A ``Minority Recruitment Program'' to 
     Implement 5 U.S.C. Sec. 7201.
       14 C.F.R. Sec. 152.407, .409, .411 (1994): All grantees, 
     sponsors, or planning agencies, with 50 or more aviation 
     employees who participate in projects which receive federal 
     airport aid funds are required to maintain ``affirmative 
     action'' plans containing ``goal and timetables'' derived 
     from ``[a] comparison . . . of the percent of minorities and 
     women in the employer's present aviation workforce . . . with 
     the percent of minorities and women . . . in the total 
     workforce'' in the SMSA or surrounding area.
       23 C.F.R. Sec. 230.111(1994): On-the-job training program 
     rules for federally assisted highway construction projects 
     provide that ``[t]he Washington Headquarters shall establish 
     and publish annually suggested minimum training goals . . . 
     based on the Federal-aid apportioned amounts and the minority 
     population, A State will have achieved its goal if the total 
     number of training slots . . . equals or exceeds the State's 
     suggested minimum annual goal.''
       23 C.F.R. Part 230 APP. A (1994): State Highway Agency 
     Equal Employment Opportunity Programs. Affirmative action 
     plans are to set ``specific, measurable, attainable hiring 
     and promotion goals, with target dates, in each area of 
     underutilization'' of women and minorities.
       29 C.F.R. Sec. Sec. 30.3-30.8 (1994): Affirmative action 
     requirements of the Department of Labor (DOL) for registered 
     state apprenticeship programs include ``goals and timetable 
     for women and minorities.'' ``Compliance with these 
     requirements shall be determined by whether the sponsor has 
     met its goals within it timetables, or failing that, whether 
     it had made good faith efforts to meet its goal and 
     timetables.''
       32 C.F.R. Part 191, Sec. 191.5(a)(8) (1994): DOD Civilian 
     Equal Employment Opportunity Program establishes affirmative 
     action guidelines and procedures for all DOD components and 
     directs the Assistant Secretary of Defense to ``[e]nsure that 
     realistic goals that provide for significant continuing 
     increases in the percentages of minorities, women, and people 
     with disabilities in entry, middle, and higher grade 
     positions in all organizations and occupations are set and 
     accomplished until the overall DOD objective is met and 
     sustained.''
       34 C.F.R. Part 100 APPENDIX VII.C (1994): Department of 
     Education guidelines for eliminating discrimination in 
     vocational education programs provide that ``[w]henever the 
     Office for Civil Rights finds that in light of the 
     representation of protected groups in the relevant labor 
     market there is a significant underrepresentation or 
     overrepresentation of protected group persons on the staff of 
     a vocational education school or program, it will presume 
     that the disproportion results from unlawful discrimination. 
     This presumption can be overcome by proof that qualified 
     persons of the particular race, color, national origin or 
     sex, or that qualified handicapped persons are not in fact 
     available in the relevant labor market.''
       40 C.F.R. Part 8 (1994); Environmental Protection Agency 
     (EPA) equal employment opportunity and affirmative action 
     compliance requirements issued pursuant to E.O. 11246 as 
     applied to EPA contracts and EPA assisted construction 
     contracts.
       41 C.F.R. Part 60 (1994): Sets forth the body of 
     administrative rules issued by the Office of Federal Contract 
     Compliance Programs within the Department of Labor to enforce 
     the affirmative action requirements of E.O. 11246 on federal 
     procurement and construction contractors. All contractors and 
     subcontractors with federal contracts in excess of $10,000 
     are prohibited by the Executive Order from discriminating and 
     required to take affirmative action in the employer of 
     minority groups and women. Federal contractors and 
     subcontractors with 50 or more employees and government 
     contracts of $50,000 or more must develop written affirmative 
     action compliance programs for each of their facilities. 
     OFCCP rules direct these larger contractors to conduct a 
     ``utilization analysis'' of all major job classifications and 
     explain any underutilization of minorities and women by job 
     category when compared with the availability of qualified 
     members of these groups in the relevant labor area. Based on 
     this analysis, the contractor's affirmative action plan must 
     set forth appropriate goals and timetables to which the 
     contractor must direct its ``good faith efforts'' to correct 
     deficiencies. In addition, OFCCP has established nationwide 
     hiring goals of 6.9 percent for women in construction, and 
     regional and local goals for minorities in construction, 
     which are set out in an appendix to the agency's affirmative 
     action in construction regulations. 41 C.F.R. 60-4.
       48 C.F.R. 22.804 (1994): Affirmative action program under 
     Federal Acquisition Regulations requires written affirmative 
     action plans of federal nonconstruction prime and 
     subcontractors with 50 or more employees that comply with DOL 
     regulations to assure equal opportunity in employment to 
     minorities and women.
       48 C.F.R. 52.222-23, 52.222-27 (1994): Prescribes clause 
     for inclusion of federal contracts that requires ``[g]oals 
     for minority and female participation, expressed in 
     percentage terms for the Contractor's aggregate workforce in 
     each trade on all construction work in the covered area'' and 
     ``to make a good faith effort to achieve each goal under the 
     plan in each trade in which its has employees.''
       48 C.F.R. 922.804-2 (1984): Department of Energy 
     regulations implementing the affirmative action plan 
     requirements of E.O. 11246.
       It is hoped that this is of assistance to you.
                                                  Charles V. Dale,
                                             Legislative Attorney.
                               footnotes

     \1\As per discussion with your staff, however, we have not 
     included federal civil rights statutes, such as Title VI of 
     the 1964 Civil Rights Act and related laws, that place 
     nondiscrimination requirements upon recipients of federal 
     financial assistance without mandating racial, ethnic, or 
     gender preferences per se. Nor are regulations of the various 
     federal departments or agencies under Title VI included for 
     the similar reason that, although they almost uniformly 
     authorize ``affirmative action'' by recipients to ``overcome 
     the effects of prior discrimination'' or otherwise, they do 
     not explicitly define the obligation in terms of ``goals'' or 
     ``setasides,'' or other forms of preference for minorities or 
     women. See e.g. 15 C.F.R. 15.3(b)(6)(1994) (Department of 
     Agriculture Title VI regulations). Also beyond the scope of 
     this study are the remedy provisions in federal laws like 
     Title VII of the 1964 Civil Rights Act (42 U.S.C. Sec. 2000e-
     5(g)), or the Fair Housing Act, 42 U.S.C. Sec. 3613, which 
     authorize ``affirmative'' relief by the courts in 
     discrimination actions, and have been the basis for judicial 
     preference orders in certain circumstances, but do not 
     explicitly direct the imposition of ``timetables, goals, set-
     asides, and quotas'' on their face.
     \2\42 U.S.C. Sec. 2000e-16(b).
     \3\5 U.S.C. Sec. 7201.
     \4\15 U.S.C. Sec. 637(a).
     \5\15 U.S.C. Sec. 637(a)(5).
     \6\13 C.F.R. Sec. 124.105(b).
     \7\The statute, 15 U.S.C. Sec. 637(a)(6)(A), defines economic 
     disadvantage in terms of: socially disadvantaged individuals 
     whose ability to compete in the free enterprise system has 
     been impaired due to diminished capital and credit 
     opportunities as compared to others who are not socially 
     disadvantaged, and such diminished opportunities have 
     precluded or are likely to preclude such individuals from 
     successfully competing in the open market.
     \8\15 U.S.C. Sec. 637(d). See also 13 CFR Sec. 124.106.
     \9\15 U.S.C. Sec. 637(d). Criteria set forth in the 
     regulations permit an administrative determination of 
     socially disadvantaged status to be predicated on ``clear and 
     convincing evidence'' that an applicant has ``personally 
     suffered'' disadvantage of a ``chronic and substantial'' 
     nature as the result of any of a variety of causes, including 
     ``long term residence in an environment isolated from the 
     mainstream of American society,'' with a negative impact ``on 
     his or her entry into the business world.'' 13 C.F.R. 
     Sec. 124.105(c).
     \10\P.L. 100-656, Sec. 502, 102 Stat. 3887, codified at 15 
     U.S.C. Sec. 644(g)(1).
     \11\See e.g. 49 C.F.R. Sec. Sec. 23.64(e), 23.65 (setting 
     forth waiver criteria for the Department of Transportation).
     \12\15 U.S.C. Sec. 637(a)(5).
     \13\See 49 C.F.R. Pt. 23, Subpt. D, App. C.
     \14\P.L. 103-355, 108 Stat. 3243 , 3374, Sec. 7106 (1994).
     \15\As amended by Sec. 3(a) of the Resolution Trust 
     Completion Act, P.L. 103-204, 107 Stat. 2369, 2375 (1993).
     \16\Opinions may reasonably differ as to whether federal 
     programs that exclusively aid ``historically black colleges 
     and universities'' or other minority institutions are a form 
     of racial ``preference.'' Without expressing any view on that 
     policy issue, however, such programs are included here only 
     because they employ racial and ethnic criteria or 
     classification as the basis for distribution of federal 
     benefits and, accordingly, at least arguably fall within the 
     ambit of your inquiry.
     \17\59 Fed. Reg. 47279 (September 15, 1994).
     \18\The provisions listed in 24 C.F.R. Part 84 are not yet 
     codified by may be found at 59 Fed. Reg. 47010 et seq. 
     (September 13, 1994).
     \19\59 Fed. Reg. 38281 (July 27, 1994).
     \20\42 U.S.C. Sec. Sec. 2000e et seq.
     \21\29 C.F.R. Part 1608 (the guidelines state the EEOC's 
     position that when employers voluntarily undertake in good 
     faith to remedy past discrimination by race- or gender-
     conscious affirmative action means, the agency will not find 
     them liable for reverse discrimination).
     \22\42 U.S.C. Sec. 2000e-16(b)
     \23\42 U.S.C. Sec. 2000e-16(b)(1).
     \24\5 U.S.C. Sec. 7201.
     \25\5 U.S.C. Sec. 720.205(b)(1991).
     \26\As amended by P.L. 103-424, 108 Stat. 4361, Sec. 6 
     (1994).

  Mr. DOLE. We have had a lot of requests for the CRS report, not just 
from Members of Congress on both sides of the aisle, but from a lot of 
people who would like to study it.
  I hope, in the final analysis, that this would be a matter that we 
can discuss again in a bipartisan way.
  I believe my civil rights record is impeccable, and I believe I have 
some credibility in this area. I am not out to destroy anybody or 
devastate anybody. I am out to take another look at what America should 
be. Can we have a color-blind society, which I think would meet the 
hopes and aspirations of 90 to 95 percent of all Americans? Some may 
want special rights and preferences. There may be some cases when we 
look over this document with 160-some different laws and regulations 
that have been compiled, where there may be some exception. There are 
some that should be continued. But 
 [[Page S3939]] certainly we ought to review it and look at it.
  As I said earlier, unless I am totally wrong, we ought to take 
another look at the Executive order signed by President Johnson and see 
if it has been distorted, magnified, or whatever. The goal should be 
nondiscrimination. That was the original intent of it. We ought to look 
at the Small Business Administration 8(a) program. It has been abused, 
no doubt about it. A lot of people have made a lot of money by finding 
someone in a minority group to sort of front for the effort. I do not 
believe that is right. I do not believe that is fair. So we have asked 
for hearings. We will be reviewing this process, hopefully, on a 
bipartisan basis, not only in the Senate but in the House. I assume 
there will be further discussion of this as we come to the floor with a 
tax bill that has been reported out by the Senate Finance Committee, 
which takes a step, I believe, in the right direction toward 
eliminating preferences.
  Mr. SIMON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Illinois.


                           Affirmative Action

  Mr. SIMON. Mr. President, I hope we can work out some bipartisan 
efforts here on this issue, but let me add that there is a lot of talk 
attacking affirmative action that is just nonsense. I see Senator Dole 
nodding that he is in agreement.
  Affirmative action can be a very good thing. It is like religion--it 
can be abused. It does not mean religion is wrong. But regarding 
affirmative action, if there is a company that hires 1,000 people and 
they all happen to be white males, I do not think we ought to have to 
prove that there is some discrimination. We ought to be able to say to 
that company that there ought to be some diversity. You ought not to 
have to lower your standards at all. But there ought to be some 
minorities, there ought to be some disabled people and some women in 
your work force.
  The case at hand--and I have to say I do not remember all of the 
details--but a high school which has a majority of minority students 
there in the business section of that high school had nine teachers, 
all of whom happened to be white.
  They had to reduce the number of teachers. The two teachers who had 
the least amount of seniority both happened to be hired the same day. 
One was white and one was black. That school made a decision on the 
basis of race that they felt it was important to have minority 
representation in the business section of this school.
  I am not saying that their decision was necessarily right, but I 
think it is an understandable decision and I think the situation has 
been distorted. I think there are times when there should be some 
agreement.
  I dealt with a city in Illinois that had some civil rights violence. 
It was 40 percent black. They did not have a single black on the police 
force or the fire department. We worked out an agreement that the next 
person they would hire would be someone who was African-American. I 
think that just makes sense. We did not say, ``Lower the quality,'' or 
anything. That is affirmative action. I think it makes sense.
  I am sure Bob Dole, Senator Faircloth, Senator Baucus, like Paul 
Simon, you try to have some diversity in your office. You do not lower 
standards.
  Two of the lawyers in my office are Jayne Jerkins and Carlos Angulo. 
I will put them up against any staff members in the U.S. Senate. One 
happens to be African-American; one happens to be Hispanic-American. 
They are just quality people.
  But I have consciously in my office tried to have some diversity. And 
I think that is a healthy thing. That is affirmative action. It does 
not mean you lower standards or anything else.
  So I think before we do too much attacking of affirmative action, let 
us recognize it can be a very good thing. Can it be abused? Yes, like 
any good things can be abused. But we should seek, as part of the 
American ideal, that we are going to have opportunities here for all 
Americans. I think that has to continue.
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. DOLE. Mr. President, I thank my colleague from Illinois. I know 
of his feelings in this area.
  I think, in fact, we want to do the same thing he has already 
suggested through nondiscrimination and penalties for discrimination. I 
mean, if you discriminate there ought to be punishment.
  Al Shanker of the American Federation of Teachers came out against 
the Justice Department's position on the Piscataway case. In fact, he 
has written a column about it. There was not any evidence of any 
discrimination by the school board. Next time, it could be a black 
person, a black woman or black man, who may lose their job.
  So that is why I say if somebody discriminates, to me that is one 
thing. If somebody has 1,000 white males, as the Senator from Illinois 
suggested, and there were good Asian, Hispanic, and black applicants, 
there ought to be at least some presumption or some evidence that 
someone may have discriminated, and we ought to go after that person if 
there is any evidence.
  We are talking about the same result. We may have a different way of 
approaching it.
  But I think, in any case, when we have had laws on the books for 10, 
15, 20, 25, 30 years around here, it might be time to go back and take 
a look to see what has worked, what has not worked, see if they have 
worked at all, or if they have been misused or abused, taken advantage 
of by some people who may not have been in any of those special groups. 
That has happened, too.
  So I hope we can discuss this in a very reasonable way, because it is 
a very, very touchy subject. In the past, you know, if you had two 
equally qualified people, you used to flip a coin. One might be black, 
one might Asian; or one Hispanic, one white. You would say, ``Well, 
somebody has to go.'' You flipped a coin. And we have done a lot of 
that. I think we can all look back at the time we flipped coins. 
Sometimes we won; sometimes we lost.
  In any event, it is a very important debate. There has been a lot of 
statements made that I think go over the edge; probably some from each 
side that go over the edge. That is not my purpose. I hope that, as we 
delve into this on the committee level, we will have a good discussion 
and maybe get some better results.
  I yield the floor.
  Mr. BAUCUS addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Montana.
  Mr. BAUCUS. Mr. President, what is the pending business?
  The PRESIDING OFFICER. H.R. 889 is the pending business.
  Mr. BAUCUS. Mr. President, I ask unanimous consent to speak as if in 
morning business for not to exceed 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  

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