TIIK UMTKI) STVTKS KMfROIVMI M U, PROTECTION AGEINCY
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Statutes and Legislative History-
Executive Orders
Regulations
Guidelines and Reports
Supplement II
Volume II
General
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THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
Supplement II
Volume II
General
'U.S. Environmental Protection Agency
Region V, Library
230 South Dearborn Street
si'"«o. Illinois 60604
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For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402
Price: $10.25 per set of 3 parts. Sold in sets only.
Stock Number 5500-00127
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FOREWORD
America's journey to environmental awareness has been a
relatively recent one. Not so many years ago Americans were
still living under the illusion that a land as vast as ours was
blessed with indestructible natural resources and beatuy.
We continued the exploitation of those resources and scattered
unplanned communities across huge areas of open space. Large
amounts of fuel were needed for the autos that took us to work
from distant suburbs, and the air became laden with their dense
emissions. Pesticides were used indiscriminantly by persons un-
aware of their effects on the food chain of plants and animals.
Our rivers became contaminated with waste from home and
industries. Our landscape was marred by litter.
As an environmentalist movement gained impetus, attention
was focused on these matters. Rachael Carson's book, Silent
Spring, in 1962 awakened Americans to the hazards of pesticides.
The oil spills of the Torrey Canyon in 1967 and at Santa Barbara,
California in 1969 dramatized another environmental hazard.
The first Earth Day on April 20, 1970, a coordinated program of
teach-ins across the nation, helped to focus Congressional atten-
tion on the strength of the environmental movement.
Congress responded by approving the President's Reorganiza-
tion Plan No. 3 which expanded the federal commitment to en-
vironmental concerns and consolidated 15 Federal organizations
under the Environmental Protection Agency.
At the same time, Congress began enacting far-reaching legisla-
tion to provide EPA with specific authority for controlling pollu-
tion. These measures included the Clean Air Amendments in 1970,
and the Federal Water Pollution Control Act Amendments, Federal
Environmental Pesticide Control Act, the Noise Control Act, and
the Marine Protection, Research and Sanctuaries Act, all in 1972.
Congress also passed the Resource Recovery Act in 1970 and
extended the Solid Waste Disposal Act in 1973.
As the Agency began taking action under these laws, Americans
gradually realized that very real changes were required in our
accustomed ways of doing business. We realized that our effort
iii
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frequently conflicted with powerful and legitimate interests in
both the public and private sectors. Our administrative, judicial
and political processes now have the task of resolving these
conflicts. They must do so by weighing all the interests which
are affected in a sensitive and informed manner. Quick access
to the legal dimensions of these problems is essential if conflicts
are to be efficiently and fairly resolved.
The work of the present day environmentalist is less glamorous
than that of four or five years ago, but it is essential if we are
to face the continuing challenge of protecting our fragile and
perishable natural resources—and ultimately ourselves—from de-
struction. I hope you will find this manual helpful as we strive
to create a society where we can live and work in harmony with
the natural world surrounding us.
Russell E. Train
Administrator
U.S. Environmental Protection Agency
IV
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PREFACE
Reorganization Plan No. 3 of 1970 transferred 15 govern-
mental units with their functions and legal authority to create
the U.S. Environmental Protection Agency. Since only the major
laws were cited in the Plan, it was decided that a compilation
of EPA legal authority be researched and published.
The publication has the primary function of providing a work-
ing document for the Agency itself. Secondarily, it will serve as
a research tool for the public.
It is the hope of EPA that this set will assist in the awesome
task of developing a better environment.
LANE R. WARD, J.D.
Office of Executive Secretariat
Office of Administrator
U.S. Environmental Protection Agency
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INSTRUCTIONS
The goal of this text is to create a useful compilation of the
legal authority under which the U.S. Environmental Protection
Agency operates. These documents are for the general use of per-
sonnel of the EPA in assisting them in attaining the purposes set
out by the President in creating the Agency. This work is not
intended and should not be used for legal citations or any use
other than as reference of a general nature. The author disclaims
all responsibility for liabilities growing out of the use of these
materials contrary to their intended purpose. Moreover, it should
be noted that portions of the Congressional Record from the 93rd
Congress were extracted from the "unofficial" daily version and
are subject to subsequent modification.
EPA Legal Compilation consists of the Statutes with their
legislative history, Executive Orders, Regulations, Guidelines and
Reports. To facilitate the usefulness of this composite, the Legal
Compilation is divided into the seven following chapters:
A. General E. Pesticides
B. Air F. Radiation
C. Water G. Noise
D. Solid Waste
SUPPLEMENT II
This edition, labelled "Supplement II," contains the additions
to and alterations of EPA legal authority not included in the
original set or Supplement I of the EPA Legal Compilation.
Therefore, this edition updates the Compilation through the 93rd
Conress, First Session.
SUBCHAPTERS
Statutes and Legislative History
For convenience, the Statutes are listed throughout the Compi-
lation by a one-point system, i.e., 1.1, 1.2, 1.3, etc., and Legislative
History begins wherever a letter follows the one-point system.
Thus, any l.la, Lib, 1.2a, etc., denotes the public laws compris-
ing the 1.1, 1.2 statute. Each public law is followed by its legisla-
vii
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viii INSTRUCTIONS
tive history. The legislative history in each case consists of the
House Report, Senate Report, Conference Report (where applica-
ble), the Congressional Record beginning with the time the bill
was reported from committee.
Example:
1.4 Amortization of Pollution Control Facilities, as amended,
26U.S.C. §169 (1969).
1.4a Amortization of Pollution Control Facilities, De-
cember 30, 1969, P.L. 91-172, §704, 83 Stat. 667.
(1) House Committee on Ways and Means, H.R.
REP. No. 91-413 (Part I), 91st Cong., 1st
Sess. (1969).
(2) House Committee on Ways and Means, H.R.
REP. No. 91-413 (Part II), 91st Cong., 1st
Sess. (1969).
(3) Senate Committee on Finance, S. REP. No.
91-552, 91st Cong., Sess. (1969).
(4) Committee of Conference, H.R. REP. No.
91-782, 91st Cong., 1st Sess. (1969).
(5) Congressional Record, Vol. 115 (1969) :
(a) Aug. 7: Debated and passed House, pp.
22746, 22774-22775;
(b) Nov. 24, Dec. 5, 8, 9: Debated and
passed Senate, pp. 35486, 37321-37322,
37631-37633, 37884-37888;
(c) Dec. 22: Senate agrees to conference re-
port, p. 40718;*
(d) Dec. 22: House debates and agrees to
conference report, pp. 40820, 40900.
This example not only demonstrates the pattern followed for
legislative history, but indicates the procedure where only one
section of a public law appears. You will note that the Congres-
sional Record cited pages are only those pages dealing with the
discussion and/or action taken pertinent to the section of law
applicable to EPA. In the event there is no discussion of the
pertinent section, only action or passage, then the asterisk (*)
is used to so indicate, and no text is reprinted in the Compilation.
In regard to the situation where only one section of a public law
is applicable, then only the parts of the report dealing with that
section are printed in the Compilation.
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INSTRUCTIONS ix
Secondary Statutes
Many statutes make reference to other laws and rather than
have this manual serve only for major statutes, these secondary
statutes have been included where practical. These secondary
statutes are indicated in the table of contents to each chapter by
a bracketed cite to the particular section of the major Act which
made the reference.
Citations
The United States Code, being the official citation, is used
throughout the Statute section of the Compilation. In four Stat-
utes, a parallel table to the Statutes at Large is provided for your
convenience.
EXECUTIVE ORDERS
The Executive Orders are listed by a two-point system (2.1,
2.2, etc.).
REGULATIONS
The Regulations are noted by a three-point system (3.1, 3.2,
etc.). Included in the Regulations are those not only promulgated
by the Environmental Protection Agency, but those under which
the Agency has direct contact.
GUIDELINES AND REPORTS
This subchapter is noted by a four-point system (4.1, 4.2, etc.).
In this subchapter is found the statutorily required reports of
EPA, published guidelines of EPA, selected reports other than
EPA's and inter-departmental agreements of note.
UPDATING
Periodically, a supplement will be sent to the interagency dis-
tribution and made available through the U.S. Government
Printing Office in order to provide a current and accurate work-
ing set of EPA Legal Compilation.
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CONTENTS
Volume I
GENERAL
Page
1. Statutes and Legislative History
1.6 Federal Aid Highway Act of 1970, as amended, 23 U.S.C. 3
§109(h), (i), (j), (1973).
l.Gb Federal-Aid Highway Act of 1973, August 13, 1973,
P.L. 93-87, § 114, 165, 87 Stat. 257, 282. 5
(1) Senate Committee on Public Works, S. REP.
No. 93-61, 93rd Cong., 1st Sess. (1973). 7
(2) House Committee on Public Works, H.R.
REP. No. 93-118, 93rd Cong., 1st Sess.(1973). 20
(3) Committee of Conference, H.R. REP. No.
39-410, 93rd Cong., 1st Sess. (1973). 28
(4) Congressional Record, Vol. 119 (1973): 34
(a) March 14, 15: Considered and passed
Senate, pp. S4724-S4730, S4734-S4738,
S4741, S4745-S4749, S4752-S4782; 34
(b) April 17-19: Considered and passed
House, amended, pp. H2916-H2917,
H2923, H2930-H2933, H2941, H2947,
H2985-82989, H2990-H2992, H3033-
H3034; 122
(c) August 1: Senate agreed to conference
report, pp. S15331, S15355, S15345,
S15357; 134
(d) August 3: House agreed to conference
report, pp. H7392-H7398*. 137
1.7 Airport and Airway Development Act, 49 U.S.C. §§
1712(f), 1716(c) (4), (e) (1973). 138
1.7b Airport Development Acceleration Act of 1973, June 18,
1973, P.L. 93-44, § 4, 87 Stat. 89. 138
(1) Senate Committee on Commerce, S. REP. No. 93-12,
93rd Cong., 1st Sess. (1973). 139
(2) House Committee on Interstate and Foreign Com-
merce, H.R. REP. No. 93-157, 93rd Cong., 1st Sess.
(1973). 140
(3) Committee of Conference, H.R. REP. No. 93-225, 93rd
Cong., 1st Sess. (1973). 142
(4) Congressional Record, Vol. 119 (1973): 143
(a) Feb. 5: Considered and passed Senate, pp.
S2088-S2101;* 143
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xii CONTENTS
Page
(b) May 2: Considered and passed House, amended,
pp. H3258-H3273;* 143
(c) May 30: House agreed to conference report,
pp. H4088-H4089;* 143
(d) June 5: Senate agreed to conference report,
pp. S10378-S10380.* 143
1.12 Public Health Service Act, as amended, 42 U.S.C. §§ 203,
215, 241, 242, 242b,c,d,f,i,j, 243, 244, 244a, 245, 246, 247,
264, (1973). 143
1.12af Health Programs Extension Act of 1973, June 18, 1973,
P.L. 93-45, §§ 102, 103, 104, 106, 87 Stat. 91. 148
(1) Senate Committee on Labor and Public Welfare, S.
REP. No. 93-87, 93rd Cong., 1st Sess. (1973). 150
(2) House Committee on Interstate and Foreign Com-
(1973). 155
merce, H.R. REP. No. 93-227, 93rd Cong., 1st Sess.
(3) Congressional Record, Vol. 119 (1973): 163
(a) March 13, 27: Considered and passed Senate, pp.
S4510-S4513, S5704-S5741;* 163
(b) May 31: Considered and passed House, amended,
H414D-H4164;* 163
(c) June 5: Senate concurred in House amendments,
pp. S10400-S10405.* 163
1.17 Appropriation Bills
1.17c Second Supplemental Appropriation Act, July 1, 1973,
P.L. 93-50, Title I, 87 Stat. 100. 164
(1) House Committee on Appropriations, H.R. REP. No.
93-350, 93rd Cong., 1st Sess. (1973). 164
(2) Congressional Record, Vol. 119 (1973):
(a) June 29: Considered and passed House and Sen-
ate, pp. S12582, H5659-H5687.* 168
1.17d Agriculture-Environmental and Consumer Protection Ap-
propriation Act, October 24, 1973, P.L. 93-135, Title III,
87 Stat. 481. 168
(1) House Committee on Appropriations, H.R. REP. No.
93-275, 93rd Cong., 1st Sess. (1973). 171
(2) Senate Committee on Appropriations, S. REP. No.
93-253, 93rd Cong., 1st Sess. (1973). 217
(3) Committee of Conference, H.R. REP. No. 93-520,
93rd Cong., 1st Sess. (1973). 232
(4) Congressional Record, Vol. 119 (1973): 245
(a) June 15: Considered and passed House, pp.
H4767-H4768, H4770-H4771, H4778, H4782-
H4785, H4802, H4805-H4808, H4813-H4814; 245
(b) June 28: Considered and passed Senate,
amended, pp. S12374-S12376, S12378-S12383,
S12390-S12394; 268
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CONTENTS xm
Page
(c) Sept. 25: House agreed to conference report,
concurred in Senate amendments with amend- 287
ments, pp. H8239-H2S48;*
(d) Oct. 10: Senate agreed to conference report and
agreed to House amendments, pp. S18973-
S18979, S18984. 288
1.17e Supplemental Appropriations Act, January 3, 1974, P.L.
93-245, 87 Stat. 1071. 295
(1) House Committee on Appropriations, H.R. REP No.
93-663, 93rd' Cong., 1st Sess. (1973). 295
(2) Senate Committee on Appropriations, S. REP. No.
93-614, 93rd Cong., 1st Sess. (1973). 299
(3) Committee of Conference, H.R. REP. No. 93-736,
93rd Cong., 1st Sess. (1973). 303
(4) Committee of Conference. H.R. REP. No. 93-745,
93rd Cong., 1st Sess. (1973). 304
(5) Congressional Record, Vol. 119 (1973):
(a) Nov. 30: Considered and passed House, pp.
H10424, H10426-H10429; 305
(b) Dec. 12: Considered and passed Senate, pp.
S22682-S22685, S22700; 313
(c) Dec. 19: House recommended conference report,
pp. H11698, H11702-H11703; 320
(d) Dec. 20: House agreed to further conference
report and concurred in certain Senate amend-
ments;* 322
(e) Dec. 21: Senate agreed to conference report and
House amendments, pp. S23809-S23810, S23816. 322
2. Executive Orders
2.5 E.O. 11749, Consolidation of Functions assigned the Sec-
retary of Housing and Urban Development, December 10,
1973, 38 Fed. Reg. 34177 (1973) superceeding E.O. 11575,
Administration of the Disaster Relief Act of 1970 as
amended by E.O. 11662. 327
2.10 E.O. 11647, Federal Regional Councils, February 10, 1972,
37 Fed. Reg. 3167 as amended by E.O. 11731, July 23,
1973, 38 Fed. Reg. 19903 (1973). 329
2.11 E.O. 11742, Delegating to the Secretary of State Certain
Functions with Respect to the Negotiation of International
Agreements Relating to the Enhancement of the Environ-
ment, October 25, 1973, 38 Fed. Reg. 29457 (1973). 331
2.12 E.O. 11743, Modifying Proclamation No. 3279, as amended,
with Respect to the Oil Policy Committee, October 25, 1973,
38 Fed. Reg. 29459 (1973). 332
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xiv CONTENTS
Page
2.13 E.0.11752, Prevention, Control, and Abatement of Environ-
mental Pollution at Federal Facilities, December 19, 1973,
38 Fed. Reg. 34793 (1973). 333
3. Regulations
3.1 Reorganization and Republication, Environmental Protec-
tion Agency, 36 Fed. Reg. 22369 (1971). 341
3.2 Statement of Reorganization and General Information,
Environmental Protection Agency, 40 C.F.R. §§ 1.1—1.43
(1972). 341
3.3 Public Information, Environmental Protection Agency, 40
C.F.R. §§ 2.100-2.111 (1973). 341
3.4 Employees Responsibilities and Conduct, Environmental
Protection Agency, 40 C.F.R. §§ 3.100-3.607 (1973). 342
3.5 Interim Regulations and Procedures for Implementing the
Uniform Allocation Assistance and Real Property Acquisi-
tion Policies Act of 1970, Environmental Protection Agency,
40 C.F.R. §§ 4.1-4.263 (1971). 343
3.6 Tuition Fees for Direct Training, Environmental Protec-
tion Agency, 40 C.F.R. §§ 5.1-5.7 (1973). 346
3.7 Preparation of Environmental Impact Statements, En-
vironmental Protection Agency, 40 C.F.R. §§ 6.10-6.95
(1973). 346
3.8 Administrative Claims Under Federal Court Claim Acts,
Environmental Protection Agency, 40 C.F.R. §§ 10.1-10.11
(1973). 348
3.9 Security Classification Regulations Pursuant to Executive
Order 11652, Environmental Protection Agency, 40 C.F.R.
§§ 11.1-11.6 (1972). 348
3.10 Certification of Facilities, Environmental Protection Ag-
ency, 40 C.F.R. §§ 20.1-20.10 (1971). 349
3.11 General Grant Regulations and Procedures, Environmental
Protection Agency, 40 C.F.R. §§ 30.100-30.1001—3 (1972). 349
3.12 State and Local Assistance, Environmental Protection
Agency, 40 C.F.R. §§ 35.001—35.955 (1973). 352
3.13 Research and Demonstration Grants, Environmental Pro-
tection Agency, 40 C.F.R. §§ 40.100-40.165 (1973). 357
3.14 Training Grants and Manpower Forecasting, Environ-
mental Protection Agency, 40 C.F.R. §§ 45.100-45.155
(1973). 358
3.15 Fellowships, Environmental Protection Agency, 40 C.F.R.
§§ 46.100—46.165 (1973). 359
3.16 General, Environmental Protection Agency, 41 C.F.R. §§
15_1_15-1.53 (1973). 359
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xv CONTENTS
Page
3.17 Procurement by Formal Advertising, Environmental Pro-
tection Agency, 41 C.F.R. §§ 15-2.406—15-2.407—8 (1972). 361
3.18 Procurement by Negotiations, Environmental Protection
Agency, 41 C.F.R. §§ 15-3.103—15-3.5100 (1972). 361
3.19 Special Types and Methods of Procurement, Environ-
mental Protection Agency, 41 C.F.R. §§ 15-4.5300—
15-4.5303 (1972). 362
3.20 Procurement Forms, Environmental Protection Agency,
40 C.F.R. §§ 15-16.553-1—15-16.701-50 (1973). 362
3.21 Transportation, Environmental Protection Agency, 41
C.F.R. §§ 15-19.302—15-19.305 (1972). 362
3.22 Contract Financing, Environmental Protection Agency,
41 C.F.R. §§ 15-30.1—15-30.104-1 (1973). 363
3.23 Contract Financing, Environmental Protection Agency,
41 C.F.R. §§ 15-30.403 15-30.412-2 (1973). 363
3.24 Amortization of Pollution Control Facilities, Internal Rev-
enue Service, Department of Treasury, 26 C.F.R. §§ 1.169
(1972). 363
3.25 Statutory Provisions; Additional First-Year Depreciation
Allowance, Internal Revenue Service, Department of Treas-
ury, 26 C.F.R. §§ 1.179-1.179—4 (1972). 363
3.26 Amortization Deductions, Internal Revenue Service, De-
partment of Treasury, 26 C.F.R. §§ 1.642(f)-1.642(f)-l
(1971). 363
3.27 Preparation of Environmental Impact Statements: Guide-
lines, Council on Environmental Quality, 40 C.F.R. § 1500
etseq. (1973). 363
Volume II
4. Guidelines and Reports
4.1 The President's Environmental Program.
4.1c
The President's 1973 Environmental Program, compiled by
the Council on Environmental Quality, April 1973, pp.
1-585. 367
Volume III
4.2 Council on Environmental Quality, Annual Reports, as
required by National Environmental Policy Act of 1969,
42 U.S.C. § 4341. 953
4.2d
The Fourth Annual Report of the Council on Environmen-
tal Quality, April 1973, pp. 1-404. 953
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CONTENTS xvi
4.3 Citizens' Advisory Committee on Environmental Quality
Reports to the President and the President's Council on
Environmental Quality, as required by E.G. 11472, § 102(c). 1357
4.3c
Report to the President and the President's Council on
Environmental Quality, Citizens' Advisory Committee on
Environmental Quality, October 1973. 1357
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Guidelines
and
Reports
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EXECUTIVE ORDERS 367
4.1 THE PRESIDENT'S ENVIRONMENTAL
PROGRAM
4.1c THE PRESIDENT'S 1973 ENVIRONMENTAL PROGRAM,
COMPILED BY THE COUNCIL ON ENVIRONMENTAL
QUALITY, April 1973, pp. 1-585.
I
the
presidents
state of
the union
message on
natural resources
and the environment
February 15, 1973
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GUIDELINES AND REPORTS 369
NATURAL RESOURCES AND THE
ENVIRONMENT
Second in a Series of Presidential Messages to the Congress on the
State of the Union. February 15, 1973
To the Congress of the United States:
With the opening of a new Congress and the beginning of a new
Presidential term come fresh opportunities for achievement in Amer-
ica. To help us consider more adequately the very special challenges
of this new year, I am presenting my 1973 State of the Union Message
in a number of sections.
Two weeks ago I sent the first of those sections to the Congress—
an overview reporting that "the basic state of our Union today is sound,
and full of promise."
Today I wish to report to the Congress on the state of our natural
resources and environment. It is appropriate that this topic be first of
our substantive policy discussions in the State of the Union presentation,
since nowhere in our national affairs do we have more gratifying prog-
ress—nor more urgent, remaining problems.
There was a time when Americans took our natural resources
largely for granted. For example, President Lincoln observed in his State
of the Union message for 1862 that "A nation may be said to consist
of its territory, its people, and its laws. The territory is the only part
which is of certain durability."
In recent years, however, we have come to realize that our "terri-
tory"—that is. our land, air, water, minerals, and the like—is not of
"certain durability" after all. We have learned that these natural resources
are fragile and finite, and that many have been seriously damaged or
despoiled.
When we came to office in 1969, we tackled this problem with all the
power at our command. Now there is encouraging evidence that the
United States has moved away from the environmental crisis that could
have been and toward a new era of restoration and renewal. Today, in
1973,1 can report to the Congress that we are well on the way to winning
the war against environmental degradation—well on the way to making
our peace with nature.
YEARS OF PROGRESS
While I am disappointed that the 92nd Congress failed to act upon
19 of my key natural resources and environment proposals, I am pleased
to have signed many of the proposals I supported into law during the
past four years. They have included air quality legislation, strengthened
water quality and pesticide control legislation, new authorities to con-
trol noise and ocean dumping, regulations to prevent oil and other spills
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370 LEGAL COMPILATION—SUPPLEMENT n
in our ports and waterways, and legislation establishing major national
recreation areas at America's Atlantic and Pacific gateways, New York
and San Francisco.
On the organizational front, the National Environmental Policy Act
of 1969 has reformed programs and decision-making processes in our
Federal agencies and has given citizens a greater opportunity to con-
tribute as decisions are made. In 1970 I appointed the first Council on
Environmental Quality—a group which has provided active leadership
in environmental policies. In the same year, I established the Environ-
mental Protection Agency and the National Oceanic and Atmospheric
Administration to provide more coordinated and vigorous environmental
management. Our natural resource programs still need to be consolidated,
however, and I will again submit legislation to the Congress to meet this
need.
The results of these efforts are tangible and measurable. Day by day,
our air is getting cleaner; in virtually every one of our major cities the
levels of air pollution are declining. Month by month, our water pollution
problems are also being conquered, our noise and pesticide problems are
coming under control, our parklands and protected wilderness areas are
increasing.
Year by year, our commitment of public funds for environmental
programs continues to grow; it has increased four-fold in the last four
years. In the area of water quality alone, it has grown fifteen-fold. In fact,
we are now buying new facilities nearly as fast as the construction industry
can build them. Spending still more money would not buy us more pollu-
tion control facilities but only more expensive ones.
In addition to what Government is doing in the battle against pol-
lution, our private industries are assuming a steadily growing share of
responsibility in this field. Last year industrial spending for pollution con-
trol jumped by 50 percent, and this year it could reach as much as $5
billion.
All nations, regardless of their economic systems, share to some ex-
tent in the environmental problem—but with vigorous United States
leadership, joint efforts to solve this global problem are showing results.
The United Nations has adopted the American proposal for a special
U.N. environmental fund to coordinate and support international en-
vironmental programs.
Some 92 nations have concluded an international convention to con-
trol the ocean dumping of wastes. An agreement is now being forged in
the Intergovernmental Maritime Consultative Organization to end the
intentional discharge of oil from ships into the ocean. This objective, first
recommended by my Administration, was adopted by the NATO Com-
mittee on the Challenges of Modern Society.
Representatives of almost 70 countries are meeting in Washington
this week at our initiative to draft a treaty to protect endangered species
of plant and animal wildlife. The U.S.-USSR environmental cooperation
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GUIDELINES AND REPORTS 371
agreement which I signed in Moscow last year makes two of the world's
greatest industrial powers allies against pollution. Another agreement
which we concluded last year with Canada will help to clean up the Great
Lakes-
Domestically, we can also be proud of the steady progress being made
in improving the quality of life in rural and agricultural America. We are
beginning to break away from the old, rigid system of controls which
eroded the farmer's freedom through Government intrusion in the mar-
ketplace. The new flexibility permitted by the Agricultural Act of 1970
has enabled us to help expand farm markets and take advantage of the
opportunity to increase exports by almost 60 percent in just three years.
Net farm income is at an all-time high, up from $16.1 billion in 1971 to
$19 billion in 1972.
PRINCIPLES To GUIDE Us
A record is not something to stand on; it is something to build on.
And in this field of natural resources and the environment, we intend
to build diligently and well.
As we strive to transform our concern into action, our efforts will
be guided by five basic principles:
The first principle is that we must strike a balance so that the pro-
tection of our irreplaceable heritage becomes as important as its use.
The price of economic growth need not and will not be deterioration in
the quality of our lives and our surroundings.
Second, because there are no local or State boundaries to the prob-
lems of our environment, the Federal Government must play an active,
positive role. We can and will set standards and exercise leadership. We
are providing necessary funding support. And we will provide encourage-
ment and incentive for others to help with the job. But Washington must
not displace State and local initiative, and we shall expect the State and
local governments—along with the private sector—to play the central
role in making the difficult, particular decisions which lie ahead.
Third, the costs of pollution should be more fully met in the free
marketplace, not in the Federal budget. For example, the price of pollu-
tion control devices for automobiles should be borne by the owner and
the user and not by the general taxpayer. The costs of eliminating pollu-
tion should be reflected in the costs of goods and services.
Fourth, we must realize that each individual must take the respon-
sibility for looking after his own home and workplace. These daily
surroundings are the environment where most Americans spend most of
their time. They reflect people's pride in themselves and their consider-
ation for their communities. A person's backyard is not the domain of
the Federal Government.
Finally, we must remain confident that America's technological and
economic ingenuity will be equal to our environmental challenges. We
will not look upon these challenges as insurmountable obstacles.
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372 LEGAL COMPILATION—SUPPLEMENT n
Instead, we shall convert the so-called crisis of the environment into
an opportunity for unprecedented progress.
CONTROLLING POLLUTION
We have made great progress in developing the laws and institu-
tions to clean up pollution. We now have formidable new tools to protect
against air, water and noise pollution and the special problem of pesti-
cides. But to protect ourselves fully from harmful contaminants, we must
still close several gaps in governmental authority.
I was keenly disappointed when the last Congress failed to take
action on many of my legislative requests related to our natural resources
and environment. In the coming weeks I shall once again send these
urgently needed proposals to the Congress so that the unfinished en-
vironmental business of the 92nd Congress can become the environ-
mental achievements of the 93rd.
Among these 19 proposals are eight whose passage would give us
much greater control over the sources of pollution:
—Toxic Substances. Many new chemicals can pose hazards to hu-
mans and the environment and are not well regulated. Authority is now
needed to provide adequate testing standards for chemical substances
and to restrict or prevent their distribution if testing confirms a hazard.
—Hazardous Wastes. Land disposal of hazardous wastes has always
been widely practiced but is now becoming more prevalent because
of strict air and water pollution control programs. The disposal of the
extremely hazardous wastes which endanger the health of humans and
other organisms is a problem requiring direct Federal regulation. For
other hazardous wastes, Federal standards should be established with
guidelines for State regulatory programs to carry them out.
—Safe Drinking Water. Federal action is also needed to stimulate
greater State and local action to ensure high standards for our drinking
wat»r. We should establish national drinking water standards, with pri-
mary enforcement and monitoring powers retained by the State and
local agencies, as well as a Federal requirement that suppliers notify
their customers of the quality of their water.
—Sulfur Oxides Emissions Charge. We now have national standards
to help curtail sulfur emitted into the attnosphere from combustion,
refining, smelting and other processes, but sulfur oxides continue to be
among our most harmful air pollutants. For that reason, I favor legis-
lation which would allow the Federal Government to impose a special
financial charge on those who produce sulfur oxide emissions. This legis-
lation would also help to ensure that low-sulfur fuels are allocated to areas
where they are most urgently needed to protect the public health.
—Sediment Control. Sediment from soil erosion and runoff con-
tinues to be a pervasive pollutant of our waters. Legislation is needed
to ensure that the States make the control of sediment from new con-
struction a vital part of their water quality programs.
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GUIDELINES AND REPORTS 373
—Controlling Environmental Impact: of Transportation. As we
have learned in recent years, we urgently need a mass transportation
system not only to relieve urban congestion but also to reduce the concen-
trations of pollution that are too often the result of our present methods
of transportation. Thus I will continue to place high priority upon my
request to permit use of the Highway Trust Fund for mass transit pur-
poses and to help State and local governments achieve air quality, con-
serve energy, and meet other environmental objectives.
—United Nations Environmental Fund. Last year the United Nations
adopted my proposal to establish a fund to coordinate and support inter-
national environmental programs. My 1974 budget includes a request for
$10 million as our initial contribution toward the Fund's five-year goal
of $ 100 million, and I recommend authorizing legislation for this purpose.
—Ocean Dumping Convention. Along with 91 other nations, the
United States recently concluded an international convention calling for
regulation of ocean dumping. I am most anxious to obtain the advice and
consent of the Senate for this convention as soon as possible. Congres-
sional action is also needed on several other international conventions and
amendments to control oil pollution from ships in the oceans.
MANAGING THE LAND
As we readily bring our pollution problems under control, more
effective and sensible use of our land is rapidly emerging as among the
highest of our priorities. The land is our Nation's basic natural resource,
and our stewardship of this resource today will affect generations to
come.
America's land once seemed inexhaustible. There was always more
of it beyond the horizon. Until the twentieth century we displayed a
carelessness about our land, born of our youthful innocence and desire
to expand. But our land is no longer an open frontier.
Americans not only need, but also very much want to preserve di-
verse and beautiful landscapes, to maintain essential farm lands, to save
wetlands and wildlife habitats, to keep open recreational space near
crowded population centers, and to protect our shorelines and beaches.
Our goal is to harmonize development with environmental quality and
to add creatively to the beauty and long-term worth of land already
being used.
Land use policy is a basic responsibility of State and local govern-
ments. They are closer to the problems and closer to the people. Some
localities are already reforming land use regulation—a trend I hope
will accelerate. But because land is a national heritage, the Federal
Government must exercise leadership in land use decision processes, and
I am today again proposing that we provide it. In the coming weeks, I
will ask the Congress to enact a number of legislative initiatives which
will help us achieve this goal:
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374 LEGAL COMPILATION—SUPPLEMENT n
—National Land Use Policy. Our greatest need is for comprehensive
new legislation to stimulate State land use controls. We especially need
a National Land Use Policy Act authorizing Federal assistance to en-
courage the States, in cooperation with local governments, to protect
lands of critical environmental concern and to regulate the siting of key
facilities such as airports, highways and major private developments.
Appropriate Federal funds should be withheld from States that fail to
act.
—Powerplant Siting. An open, long-range planning process is needed
to help meet our power needs while also protecting the environment.
We can avoid unnecessary delays with a powerplant siting law which as-
sures that electric power facilities are constructed on a timely basis, but
with early and thorough review of long-range plans and specific provi-
sions to protect the environment.
—Protection of Wetlands. Our coastal wetlands are increasingly
threatened by residential and commercial development. To increase their
protection, I believe we should use the Federal tax laws to discourage
unwise development in wetlands.
—Historic Preservation and Rehabilitation. An important part of
our national heritage are those historic structures in our urban areas
which should be rehabilitated and preserved, not demolished. To help
meet this goal, our tax laws should be revised to encourage rehabilitation
of older buildings, and we should provide Federal insurance of loans to
restore historic buildings for residential purposes.
—Management of Public Lands. Approximately one-fifth of the
Nation's land is considered "public domain", and lacks the protection
of an overall management policy with environmental safeguards. Legis-
lation is required to enable the Secretary of the Interior to protect our
environmental interest on those lands.
—Legacy of Parks. Under the Legacy of Parks program which I
initiated in 1971, 257 separate parcels of parklands and underused Fed-
eral lands in all 50 States have been turned over to local control for park
and recreational purposes. Most of these parcels are near congested
urban areas, so that millions of citizens can now have easy access to
parklands. I am pleased to announce today that 16 more parcels of
Federal land will soon be made available under this same program.
We must not be content, however, with just the Legacy of Parks
program. New authority is needed to revise the formula for allocating
grant funds to the States from the Land and Water Conservation Fund.
More of these funds should be channelled to States with large urban
populations.
—Mining on Public Lands. Under a statute now over a century old,
public lands must be transferred to private ownership at the request
of any person who discovers minerals on them. We thus have no effective
control over mining on these properties. Because the public lands belong
to all Americans, this 1872 Mining Act should be repealed and replaced
with new legislation which I shall send to the Congress.
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GUIDELINES AND REPORTS 375
—Mined Area Protection. Surface and underground mining can too
often cause serious air and water pollution as well as unnecessary destruc-
tion of wildlife habitats and aesthetic and recreational areas. New legis-
lation with stringent performance standards is required to regulate abuses
of surface and underground mining in a manner compatible with the
environment.
AMERICAN AGRICULTURE—A BASIC NATIONAL RESOURCE
Nearly three-fifths of America's land is in the stewardship of the
farmer and the rancher. We can be grateful that farmers have been
among our best conservationists over the years. Farmers know better than
most that sound conservation means better long-term production and
improved land values. More importantly, no one respects and under-
stands our soil and land better than those who make their living by the
land.
But Americans know their farmers and ranchers best for all they
have done to keep us the best-fed and best-clothed people in the history
of mankind. A forward-looking agricultural economy is not only essen-
tial for environmental progress, but also to provide for our burgeoning
food and fiber needs.
My Administration is not going to express its goal for farmers in
confusing terms. Our goal, instead, is very simple. The farmer wants,
has earned, and deserves more freedom to make his own decisions. The
Nation wants and needs expanded supplies of reasonably priced goods
and commodities.
These goals are complementary. Both have been advanced by the
basic philosophy of the Agricultural Act of 1970. They must be further
advanced by Congressional action this year.
The Agricultural Act of 1970 expires with the 1973 crop. We now
face the fundamental challenge of developing legislation appropriate
to the economy of the 1970's. Over the next several months, the future
direction of the farm program must be discussed, debated and written
into law. The outcome of this process will be crucial not only to farmers
and ranchers, but to consumers and taxpayers as well.
My Administration's fundamental approach to farm policy is to
build on ihe forward course set by the 1970 Act. These principles should
guide us in enacting new farm legislation:
—Farmers must be provided with greater freedom to make produc-
tion and marketing decisions. I have never known anyone in Washing-
ton who knows better than a farmer what is in his own best interest.
—Government influence in the farm commodity marketplace must
be reduced. Old fashioned Federal intrusion is as inappropriate to today's
farm economy as the old McCormick reaper would be on a highly sophis-
ticated modem farm.
—We must allow farmers the opportunity to produce for expanding
domestic demands and to continue our vigorous competition in export
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376 LEGAL COMPILATION—SUPPLEMENT n
markets. We will not accomplish that goal by telling the farmer how much
he can grow or the rancher how much livestock he can raise. Fidelity to
this principle will have the welcome effect of encouraging both fair food
prices for consumers and growing income from the marketplace for
farmers.
—We must reduce the farmer's dependence on Government pay-
ments through increased returns from sales of farm products at home
and abroad. Because some of our current methods of handling farm
problems are outmoded, the farmer has been unfairly saddled with the
unflattering image of drinking primarily at the Federal well. Let us
remember that more than 93 percent of gross farm income comes directly
through the marketplace. Farmers and ranchers are strong and inde-
pendent businessmen; we should expand their opportunity to exercise
their strength and independence.
—Finally, we need a program that will put the United States in
a good posture for forthcoming trade negotiations.
In pursuing all of these goals, we will work closely through the
Secretary of Agriculture with the Senate Committee on Agriculture
and Forestry and the House Committee on Agriculture to formulate
and enact new legislation in areas where it is needed.
I believe, for example, that dairy support systems, wheat, feed grains
and cotton allotments and bases—some established decades ago—are
drastically outdated. They tend to be discriminatory for many farm
operators.
It would be desirable to establish, after a reasonable transition
period, a more equitable basis for production adjustment in the agricul-
tural economy should such adjustment be needed in the years ahead.
Direct Federal payments should, at the end of the transition period, be
limited to the amounts necessary to compensate farmers for withholding
unneeded land from crop production.
As new farm legislation is debated in the months ahead, I hope the
Congress will address this important subject with a deep appreciation
of the need to keep the Government off the farm as well as keeping the
farmer on.
PROTECTING OUR NATURAL HERITAGE
An important measure of our true commitment to environmental
quality is our dedication to protecting the wilderness and its inhabitants.
We must recognize their ecological significance and preserve them as
sources of inspiration and education. And we need them as places
of quiet refuge and reflection.
Important progress has been made in recent years, but still further
action is needed in the Congress. Specifically, I will ask the 93rd CongressN
to direct its attention to the following areas of concern:
—Endangered Species. The limited scope of existing laws requires
new authority to identify and protect endangered species before they are
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GUIDELINES AND REPORTS 377
so depleted that it is too late. New legislation must also make the taking
of an endangered animal a Federal offense.
—Predator Control. The widespread use of highly toxic poisons to
kill coyotes and other predatory animals has spread persistent poisons to
range and forest lands without adequate foresight of environmental
effects. I believe Federal assistance is now required so that we can find
better means of controlling predators without endangering other wildlife.
—Wilderness Areas. Historically, Americans have always looked
westward to enjoy wilderness areas. Today we realize that we must also
preserve the remaining areas of wilderness in the East, if the majority
of our people are to have the full benefit of our natural glories. Therefore
I will ask the Congress to amend the legislation that established the
Wilderness Preservation System so that more of our Eastern lands can
be included.
—Wild and Scenic Rivers. New legislation is also needed to con-
tinue our expansion of the national system of wild and scenic rivers.
Funding authorization must be increased by $20 million to complete
acquisitions in seven areas, and we must extend the moratorium on
Federal licensing for water resource projects on those rivers being con-
sidered for inclusion in the system.
—Big Cypress National Fresh Water Preserve. It is our great hope
that we can create a reserve of Florida's Big Cypress Swamp in order to
protect the outstanding wildlife in that area, preserve the water supply
of Everglades National Park and provide the Nation with an outstanding
recreation area. Prompt passage of Federal legislation would allow the
Interior Department to forestall private or commercial development and
inflationary pressures that will build if we delay.
—Protecting Marine Fisheries. Current regulation of fisheries off
U.S. coasts is inadequate to conserve and manage these resources. Legis-
lation is needed to authorize U.S. regulation of foreign fishing off U.S.
coasts to the fullest extent authorized by international agreements. In
addition, domestic fishing should be regulated in the U.S. fisheries zone
and in the high seas beyond that zone.
—World Heritage Trust. The United States has endorsed an inter-
national convention for a World Heritage Trust embodying our proposals
to accord special recognition and protection to areas of the world which
are of such unique natural, historical, or cultural value that they are a
part of the heritage of all mankind. I am hopeful that this convention
will be ratified early in 1973.
—Weather Modification. Our capacity to affect the weather has
grown considerably in sophistication and predictability, but with this ad-
vancement has also come a new potential for endangering lives and prop-
erty and causing adverse environmental effects. With additional Federal
regulations, I believe that we can minimize these dangers.
MEETING OUR ENERGY NEEDS
One of the highest priorities of my Administration during the com-
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378 LEGAL COMPILATION—SUPPLEMENT n
ing year will be a concern for energy supplies—a concern underscored
this winter by occasional fuel shortages. We must face up to a stark fact
in America: we are now consuming more energy than we produce.
A year and a half ago I sent to the Congress the first Presidential
message ever devoted to the energy question. I shall soon submit a new
and far more comprehensive energy message containing wide-ranging
initiatives to ensure necessary supplies of energy at acceptable economic
and environmental costs. In the meantime, to help meet immediate needs,
I have temporarily suspended import quotas on home heating oil east
of the Rocky Mountains.
As we work to expand our supplies of energy, we should also recog-
nize that we must balance those efforts with our concern to preserve our
environment. In the past, as we have sought new energy sources, we have
too often damaged or despoiled our land. Actions to avoid such damage
will probably aggravate our energy problems to some extent and may
lead to higher prices. But all development and use of energy sources car-
ries environmental risks, and we must find ways to minimize those risks
while also providing adequate supplies of energy. I am fully confident
that we can satisfy both of these imperatives.
GOING FORWARD IN CONFIDENCE
The environmental awakening of recent years has triggered substan-
tial progress in the fight to preserve and renew the great legacies of na-
ture. Unfortunately, it has also triggered a certain tendency to despair.
Some people have moved from complacency to the opposite extreme of
alarmism, suggesting that our pollution problems were hopeless and pre-
dicting impending ecological disaster. Some have suggested that we could
never reconcile environmental protection with continued economic
growth.
I reject this doomsday mentality—and I hope the Congress will
also reject it. I believe that we can meet our environmental challenges
without turning our back on progress. What we must do is to stop the
hand-wringing, roll up our sleeves and get on with the job.
The advocates of defeatism warn us of all that is wrong. But I be-
lieve they underestimate this Nation's genius for responsive adaptabil-
ity and its enormous reservoir of spirit.
I believe there is always a sensible middle ground between the Cas-
sandras and the Pollyannas. We must take our stand upon that ground.
I have profound respect for the enormous challenge ahead, but I
have even stronger respect for the capacity and character of the Ameri-
can people. Many of us have heard the adage that the last letters of the
word, "American," say "I can." I am confident that we can, and we will,
meet our natural resource challenges.
RICHARD NKON
The White House,
February 15, 1973.
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GUIDELINES AND REPORTS 379
FACT SHEET
THE PRESIDENT'S 1973 PROGRAM
( * indicates legislation being resubmitted)
Managing the Land
National land use policy*
Powerplant siting*
Wetlands protection*
Preservation of historic buildings*
Public lands management*
Transfers of Federal properties for park and
recreational use*
Relocation of Federal facilities*
Land and Water Conservation Fund amendments*
Reform of laws for mining and mineral leasing on
Federal lands*
Mined area protection*
American Agriculture
Work with the Congress to expand farm production
and incomes through —
greater freedom for farmers to make produc-
tion and marketing decisions
— minimizing direct Federal payments
developing a more equitable method for
providing agricultural production adjustments
when they are needed
Controlling pollution
Toxic substances control*
Controlling land disposal of hazardous wastes*
Safe drinking water
Sulfur oxides emissions charge*
Sediment control*
Controlling impacts of transportation
U.S. contribution to UN Environment Fund*
Approval of international convention on ocean
dumping
Approval and implementation of IMCO marine pollu-
tion conventions and amendments*
Protecting Our Natural Heritage
Endangered species protection*
Predator controls*
Wilderness areas
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380 LEGAL COMPILATION—SUPPLEMENT n
Wild and scenic rivers
Big Cypress National Fresh Water Reserve*
Protection of marine fisheries
Ratification of World Heritage Trust convention
Weather modification protection
DESCRIPTION OF THE PROGRAM
MANAGING THE LAND
National Land Use Policy
*»
A National Land Use Policy Act would authorize Federal
assistance to encourage the States, in cooperation with
local governments, to protect lands which are of criti-
cal environmental concern and to control major develop-
ment, including airport and highway siting. One hundred
seventy million dollars would be authorized over five
years to assist the States in this effort — $40 million
in each of the first two years and $30 million in each
of the next three years.
Any State that fails to establish an acceptable land use
program within three years from enactment would be sub-
ject to cumulative reductions of up to 21 percent of the
funds allocated to the State under the Airport and Air-
way Development Act, the Federal-Aid Highway Acts,
including the Highway Trust Fund, and the Land and Water
Conservation Fund.
Powerplant Siting
A new powerplant siting law would assure that needed
electric power facilities are constructed on a timely
basis and require early and thorough review of long-
range plans and specific proposals for plants and trans-
mission lines to protect environmental values.
The powerplant siting law being submitted this year has
a number of significant improvements over the legisla-
tion submitted by the Administration to the 92nd
Congress. Early identification of long-range power
needs on a yearly basis would be accompanied by the re-
view and comment of public agencies and members of the
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GUIDELINES AND REPORTS 881
public. A decision to approve or disapprove a new
powerplant or transmission line would be required to be
made by all Federal, State, and local agencies within
18 months of application. The application would be
submitted three to five years prior to the time when
construction is planned to begin, thus affording
adequate time for public evaluation and court review of
decisions. Substantial changes have also been made in
the bill to provide a "one-stop" application and review
process at both Federal and State levels. Other new
provisions assure full review of new powerplants and
transmission lines under the provisions of the National
Environmental Policy Act.
Wetlands Protection
The Environmental Protection Tax Act would amend the
Internal Revenue Code to limit applicability of certain
Federal tax benefits for new development in coastal wet-
lands, thereby discouraging unnecessary development in
these environmentally critical areas.
Historic Preservation and Rehabilitation
The Environmental Protection Tax Act would also encour-
age more rehabilitation, rather than demolition, of
older buildings in urban areas, as well as make the
restoration of those specific buildings registered as
historic structures substantially more attractive for
private investors. Companion legislation will be re-
submitted to make HUD-insured loans available for home-
owners to restore their historic buildings for residen-
tial purposes.
The tax legislation also contains provisions to encour-
age charitable donations of partial interests in land —
such as scenic easements — for conservation purposes.
Public Lands Management
The National Resource Land Management Act would provide
for the first time an overall management policy and
enforcement authority for Federally-owned public lands,
administered by the Bureau of Land Management in the
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382 LEGAL COMPILATION—SUPPLEMENT n
Department of the Interior, which are not set aside for
park, forest or other specified uses. These lands, con-
stituting approximately one-fifth of the Nation's land,
contain spectacular scenery, mineral and timber
resources, important fish and wildlife habitat, and land
with great ecological significance and recreational
potential. The legislation would establish strong safe-
guards to protect environmental values. It would
require that these lands be retained in Federal owner-
ship, unless under limited conditions enumerated in the
bill, disposal of particular tracts would lead to a
significant improvement in their management or would
serve important public objectives which cannot be
achieved on nonpublic lands.
Transfers of Federal Properties for Park and Recreational
Use
Based on recommendations of the Property Review Board,
which the President established in 1970, Federal pro-
perties have been transferred to State and local govern-
ments for park and recreational use. Today's transfer
of 16 additional properties in 10 States — valued at
$2.7 million and covering 5,020 acres — brings to 273
the total number of properties transferred since the
program was launched in March, 1971. The 273 properties
cover 46,292 acres in 50 States, the Commonwealth of
Puerto Rico, and the District of Columbia. Their total
estimated fair market value is $136,717,176.
The 16 properties announced today for inclusion in the
legacy of parks program include all, or portions of the
Castle Communications Annex in Atwater, California; Nike
Site 29 in Brea, California; Pueblo Army Depot in Pueblo,
Colorado; Dana Housing Area in Dana, Indiana; Fort Riley
in Junction City, Kansas; Grand Haven Rifle Range in
Ferrysburg, Michigan; Marine Corps Training Center in
Mattydale, New York, West Point Military Reservation in
Woodbury, New York; Coast Guard Station in Ashtabula,
Ohio,- Naval Communication Station (Fort Burnside) in
Newport, Rhode Island; Fort Bliss in El Paso, Texas;
Former Perrin Air Force Base in Grayson County, Texas;
Fort Hood in Killeen, Texas; Falcon Dam and Reservoir
Project in Starr and Zapata Counties, Texas; Rattlesnake
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GUIDELINES AND REPORTS 383
Slope in Richland, Washington; and Coast Guard Radio
and Light Station in Westport, Washington.
A number of additional properties are being leased by
State and local governments from the Army Corps of
Engineers for development as park and recreational
areas. The military services are working to open for
increased public use some parks and recreational areas
on military installations, such as Fort DeRussy, with
its frontage on Waikiki Beach, Hawaii, and the Presidio
in San Francisco, which is part of the new Golden Gate
National Recreation Area that the President recommended.
Relocation of Federal Facilities
Another part of the Federal lands transfer program still
requires Congressional action. Existing statutory
requirements serve as a disincentive for Federal agencies
to move facilities from recreationally-valuable lands to
other locations. At present, proceeds from the sale of
Federal properties cannot be used to offset the cost of
relocating agency activities. Proposed legislation
would revise financial arrangements for the sale of
Federal lands in order to facilitate conversion of under-
utilized Federal property to recreational use.
A portion of the proceedings from the sale of Federal
property could be used for moving and replacement costs
of the agency giving it up. This proposal would take
away the current financial disincentive to Federal
agencies in moving from properties which have higher
values in alternative uses.
Land and Water Conservation Fund Amendments
Through the Land and Water Conservation Fund, the
Federal government assists States and localities to
acquire park and recreational lands. However, because
of the way in which the State grant funds must be
allocated, a disproportionately small percentage has
been used for the purchase and development of recrea-
tional facilities in and near urban areas where they are
most needed. Proposed legislation would change the
allocation formula to ensure that more parks will be
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384 LEGAL COMPILATION—SUPPLEMENT n
developed in our most populous States by putting most
of the money in States with large urban populations.
Mining and Mineral Leasing on Public Lands
Since 1872, Federal law has required that public lands
be transferred into private ownership whenever a person
discovered valuable minerals in them. This practice
fails to provide necessary controls to protect the
environment. New legislation would repeal the 1872
Mining Act and put all minerals on Federal lands under
a comprehensive system of leasing. The Secretary of
the Interior would be given the full authority to pro-
tect the public lands to assure that future mining is
carried out in harmony with the environment.
No mining operation could commence until the Secretary
had approved the mining operation and reclamation plan,
including a performance bond to assure compliance.
Mined Area Protection
A new Mined Area Protection Act would establish Federal
requirements and guidelines for State programs to regu-
late the environmental consequences of surface and under-
ground mining. The bill calls for stringent Federal
performance standards for mining and reclamation opera-
tions and encourages the reworking and reclamation of
abandoned, previously-mined areas.
In any State that fails to enact the necessary regula-
tions or enforce them properly, the Federal government
would be authorized to do so.
CONTROLLING POLLUTION
Toxic Substances
Many new chemicals marketed each year pose hazards to
humans and the environment. The Toxic Substances Con-
trol Act would empower the Administrator of EPA to
restrict manufacturing or distribution of any substance
which he finds is a hazard to human health or the
environment. He would also be authorized to stop the
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GUIDELINES AND REPORTS 385
sale or use of any substance that violates the pro-
visions of the legislation; to seek immediate relief
when use or distribution of a substance presents an
imminent hazard to health or the environment; and to
prescribe minimum standard tests to be performed by
manufacturers on new substances.
'Land Disppsal of Hazardous wastes
Land disposal of hazardous wastes is becoming more
prevalent because of strict air and water pollution
control programs. New legislation would empower the
Administrator of EPA to regulate extremely hazardous
wastes and to establish disposal standards and guide-
lines for State programs to regulate other hazardous
waste disposal on or under the land. There would be
Federal authority to ensure compliance with the
standards. Such legislation would fill a gap now left
by air and water quality legislation.
Safe Drinking Water
New legislation would authorize the Administrator of
EPA to establish national drinking water standards to
protect health. Water suppliers would be required to
notify customers whenever these standards are not met.
States would retain primary enforcement powers and
monitoring responsibilities, and citizens would be
authorized to help enforce the law through court
actions. Federal enforcement authority would be pro-
vided to deal with imminent hazards and to ensure that
notification is given of standards violations.
Current Federal law is limited to authority to deal
with interstate transmission of communicable diseases
through water supplies and authority to regulate bottled
water.
Sulfur Oxides Emissions Charge
A charge would be imposed on sulfur emitted into the
atmosphere from combustion, refining, smelting, and
other processes in all regions where air quality does
not meet national standards for sulfur oxides.
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386 LEGAL COMPILATION—SUPPLEMENT n
The revised proposal calls for a charge of 20 cents per
pound of sulfur emitted, taking effect in 1976 in regions
where the national primary standard for sulfur oxides is
not met by the 1975 deadline for achievement under the
Clean Air Act. That standard is designed to protect
public health. In regions where air quality in 1978 and
thereafter meets the primary standard but exceeds the
national secondary standard (designed to protect pro-
perty, vegetation, and aesthetic values) a charge of
20 cents per pound of sulfur emitted would be imposed in
1979 and succeeding years. Areas which meet both pri-
mary and secondary air quality standards would be exempt
from the emission charge. Not only will this charge act
as a powerful incentive, together with existing regula-
tory authority, to clean up sulfur oxide emissions, but
it will also help allocate limited supplies of low
sulfur fuels to areas where they are most required, to
protect human health.
Sediment Control
Sediment from soil erosion and runoff is the most per-
vasive water pollutant. Heavy loads of sediment inter-
fere with many beneficial uses of water, such as swimming,
fishing, and water supply, and can change the entire
character of an aquatic environment. This problem, is
particularly acute in areas with major suburban develop-
ment, where a significant amount of sediment comes from
construction. However, if proper construction practices
are followed, sediment runoff from this source can be
greatly reduced.
A proposed amendment to the Federal Water Pollution Con-
trol Act would require States to establish, through
appropriate local and regional agencies, regulatory
programs to control sediment from construction that
affects water quality.
Controlling Impacts of Transportation
Again this year, the Administration will urge that,the
Congress permit the use of the Federal Highway Trust
Fund for mass transit purposes as well as for highways.
This action would give State and local governments the
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GUIDELINES AND REPORTS 387
option of choosing the transportation alternatives they
determine to be most appropriate to meet transportation
and environmental needs. Local flexibility will help to
ensure that Federal money more effectively meets peoples'
needs. In many cases, public transportation will more
adequately meet the demands for both efficient trans-
portation and environmental protection than expanded
automotive traffic on new highways. When this is the
case. Federal funds for surface transportation should
be available for this option and not arbitrarily re-
stricted to the alternative of more highway construction.
U.N. Environment Fund
New legislation would authorize appropriations for
voluntary U.S. contributions to the U.N. Environment
Fund proposed by the U.S. and approved last December by
the U.N. General Assembly. The President's fiscal year
1974 budget includes $10 million to be used for the
first year U.S. contribution. The President has recom-
mended that the United States contribute on a 40-60
matching basis toward the Fund's initial five-year goal
of $100 million. Other nations already have announced
intended contributions which, together with the proposed
U.S. contributions, would total more than $80 million.
Expressions of interest in contributing by additional
nations make attainment of the $100 million goal rea-
sonably assured.
Ocean Dumping Convention
The Senate is requested to give its advice and consent
to the international convention to regulate ocean
dumping, concluded last November by the U.S. and 91
other nations. The Administration is also proposing
amendments to our domestic ocean dumping legislation to
fully implement the convention.
The amendments would extent U.S. regulation to vessels or
aircraft registered in the United States or flying the
American flag and loading material, to be transported for
dumping, from the territory of another nationa. The
amendments would also extent U.S. regulation to oil loaded
on vessels or aircraft for the purpose of dumping at sea.
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388 LEGAL COMPILATION—SUPPLEMENT n
Approval and Implementation of IMCO Conventions
Limitations on the discharge of oil from ships into
ocean waters have been provided since 1954 through the
IMCO Oil Pollution Convention of that year. IMCO has
adopted three separate amendments to the 1954 Convention,
including amendments that would establish tank size
limitations and construction requirements to minimize
damage to the marine environment from oil spills caused
by tanker collision or grounding.
Two additional IMCO Conventions, the 1969 International
Convention on Civil Liability for Oil Pollution Damage
and the 1971 International Convention of the Establish-
ment of a Fund for Compensation of Oil Pollution Damage,
would provide compensation to victims damaged by oil
spills. The Civil Liability Convention would place
strict liability on the vessel owner up to a fixed limit.
The Compensation Fund Convention, to be supported by
contributions from oil cargo receivers, would more than
double the amounts now available for compensating
victims and would make convention provisions that bene-
fit shipowners contingent on their compliance with
pollution prevention standards.
The Senate has consented to the 1969 IMCO Convention
Relating to Intervention on the High Seas, which
authorizes a nation to take measures on the high seas
to avoid or reduce dangers to its territory and
territorial seas from pollution, actual or threatened,
arising from a maritime casualty.
Legislation that I have proposed to implement the new
IMCO conventions and Amendments still awaits enactment.
In addition, the Senate's advice and consent is required
for the Civil Liability and Compensation Fund Conven-
tions and for the 1971 Amendments to the 1954 Conven-
tion.
PROTECTING OUR NATURAL HERITAGE
Endangered Species
A new Endangered Species Conservation Act would provide
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GUIDELINES AND REPORTS 389
for early identification and protection of endangered
species. This legislation would for the first time
the taking of endangered animal species a Federal
offense and would permit protective measures to be
undertaken before such a species is so depleted that
recovery is difficult or impossible. In addition, execu-
tive branch agencies will cooperate with the Smithsonian
Institution in its planned study of endangered plants.
Delegates from almost 70 nations are now meeting in
Washington at a conference hosted by the United States
Government to conclude an international convention pro-
tecting endangered species of plants and wildlife
throughout the world by controlling international trade
of such species.
Predator Control
New legislation would change the Federal predator con-
trol program to one of research together with technical
and financial assistance to the States to help them
control predator populations by means other than poisons.
This legislation would complement the President's action
last year in barring by Executive Order the use of
poisons for predator control on Federal lands. Also,
the Administrator of EPA terminated Federal registra-
tions for predator control poisons used on private as
well as public lands.
Wilderness Areas
Most of the nation's current wilderness areas are in
the West. However, despite the fact that much of the
Federal land in the East has been logged or otherwise
disturbed by man, many of these areas have been
restored to a near natural state.
New legislation would permit inclusion of substantially
restored areas in the East under the Wilderness
Preservation System. The 53 areas previously identified
within the eastern National Forest System are candidates
for inclusion under this proposal.
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390 LEGAL COMPILATION—SUPPLEMENT n
The legislation would prohibit mining and grazing in
these areas and provide for acquisition of any private
holdings. During the interim. The Secretary of Agri-
culture, through authority presently available to him,
will protect the areas he has identified from timbering,
mining and other development pending Congressional action.
Over the past four years the President has proposed for
inclusion in the Wilderness Preservation System 48 areas,
none of which have been so designated by the Congress.
Wild and Scenic Rivers
New legislation would increase the authorized funding
for Wild and Scenic Rivers Act from $17 million to $37.6
million to complete acquisitions in seven of the original
statutorily-designated river areas. It would also extend
for another five years the current moratorium on Federal
Power Commission licenses and Federal agency assistance
for dams and other water resource projects that may
affect rivers being considered for inclusion in the
National Wild and Scenic River System.
In 1970, the President ordered the termination of the
Cross-Florida barge canal because that project threatened
to destroy a unique scenic area along the Oklawaha River
that provides a major wildlife habitat and contains a
large sport fish population. He asked the Council on
Environmental Quality and the Secretary of the Army to
make recommendations for the future of the affected
area. As a result of these recommendations, the Depart-
ment of Agriculture is planning to purchase, for in-
clusion in the Ocala National Forest, the land formerly
designated for the canal project. In addition, the two
agencies recommended that the Okalawaha River be desig-
nated for study as a wild and scenic river. That recom-
mendation was recently sent to the Congress.
Big Cypress National Fresh Water Reserve
New legislation would authorize the Federal Government
to acquire the requisite legal interest in 522,000 acres
of private land in the Big Cypress Swamp to establish a
Big Cypress National Fresh Water Reserve and protect it
from development.
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GUIDELINES AND REPORTS 391
The swamp is a unique area of marsh and lowland forest
located to the north of the Everglades National Park in
Florida, which provides water that is essential to
maintaining the ecological balance of the Everglades
Park. Creation of a reserve in this area would prevent
private development that would interfere with the water
supply of the Everglades Park, and it would also protect
the outstanding wildlife in the Big Cypress area, while
providing the Nation with an outstanding recreation area.
Prompt Federal legislation is required to give the
Interior Department authority to forestall development
and inflationary pressures. Under the proposal the
Reserve would be administered by the Secretary of the
Interior in accordance with the laws applicable to the
National Park System or by State or local governments if
they agree to conditions for protecting the swamp's
unique natural environment. Some portions would be
managed as scientific, ecological study areas, and
acquisition would preserve important habitat for at
least nine endangered species of wildlife as well as
many species of exotic plants and flowers.
Protection of Marine Fisheries
Failure to wisely manage fisheries almost invariably
leads to a decline in the resource and to corresponding
economic hardship for fishermen. Fishing off the U.S.
coasts is now only partially regulated. Some States
regulate fishing within U.S. territorial waters, and
several international agreements apply to fisheries in
the high seas off of U.S. coasts, but the U.S. has inade-
quate legislative authority to regulate foreign fishing
in these areas as authorized by these agreements.
New legislation would authorize Federal regulation of
fishing adjacent to U.S. coasts by vessels of a party
to an international fishing agreement, to the full extent
authorized by such agreement. The legislation would also
authorize Federal regulation of all U.S0 fishing vessels
in the U.S. fisheries zone and the high seas beyond that
zone.
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392 LEGAL COMPILATION—SUPPLEMENT n
Regulation would be for the purposes of conserving and
managing the fisheries and preventing the taking of
contaminated fish.
World Heritage Trust
In his 1971 Environmental Message, the President sug-
gested that the world's nations agree to the principle
that some areas of the world have such unique natural,
historical, or cultural value that they are part of the
heritage of all mankind and should be accorded special
recognition and protection as part of the World Heritage
Trust. A final draft of a convention for a World Herit-
age Trust, embodying my proposals, was endorsed at the
U.S. environmental conference and is being readied for
signatureo The Administration will submit this conven-
tion for ratification.
Weather Modification
Under Public Law 92-205, enacted at the Administration's
request in 1971, non-Federal weather modification pro-
jects must be reported in advance to the National
Oceanic and Atmospheric Administration in the Department
of Commerce, States have the responsibility and oppor-
tunity for preventing potential adverse effects of
weather modification, but the Federal information-
gathering program can be used to assist the States.
The President has directed the Secretary of Commerce to
expand his regulations to provide for Federal notifica-
tion, including recommendations where appropriate, to
operators and State officials in cases where a report
discloses that a proposed project may endanger persons,
property or the environment or the success of Federal
research projects. Notifications will be available to
the public.
# # #
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GUIDELINES AND REPORTS 393
n
the
president's
proposals
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GUIDELINES AND REPORTS 395
Controlling Pollution
Toxic Substances
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GUIDELINES AND REPORTS 397
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF THE
ADMINISTRATOR
February 15, 1973
Dear Mr. [President/Speaker]:
I am pleased to forward to you a proposed bill, "The
Toxic Substances control Act of 1973," designed to pro-
vide for the effective control of chemical substances
for the purposes of assuring that such substances do not
endanger human health or the environment.
The proposal is being transmitted in accordance with
the Environment and Natural .Resources State of the Union
Message of the president.
The proposed bill would provide to the American
public the protection greatly needed from the dangers
posed by toxic substances, both new and existing. With
the exposure of our citizens to an increasing number of
chemical substances each year and with hazards to health
and the environment potentially present in certain
existing chemicals, it is essential that chemical sub-
stances be tested so that the Administrator may deter-
mine if regulation to control such substances is neces-
sary.
The legislative proposal would authorize the Admin-
istrator of the Environmental protection Agency to
restrict or prohibit the use or distribution of a
chemical substance if necessary to protect health and
the environment. The Administrator is also authorized
to prescribe standards for tests and test results which
must be met before a manufacturer can market a new
product. Such testing requirements can likewise be
applied to existing chemical substances if the Admin-
istrator determines that an unreasonable threat to
health or the environment may be posed. The Adminis-
trator is required to consult with an independent board
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398 LEGAL COMPILATION—SUPPLEMENT n
of scientists before proposing action to restrict a
substance or before proposing standards for tests.
The legislation has been developed in cooperation
with the Council on Environmental Quality and other
interested agencies. We recommend that the bill be
referred to the appropriate committee and that it be
enacted.
The Office of Management and Budget advises that
enactment of this proposed legislation would be in
accord with the program of the President.
Sincerely yours.
/s/ William D. Ruckelshaus
Administrator
Honorable Spiro T. Agnew
president of the Senate
Washington, D. C- 20510
Honorable Carl Albert
Speaker of the House
of Representatives
Washington, D. C. 20515
Enclosure
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GUIDELINES AND REPORTS 399
S. 888
H.R. 5087
A BILL
Be it enacted by the Senate and House of Representa-
tives of the united States of America in Congress as-
sembled,
Sec. 1. This Act may be cited as the "Toxic sub-
stances Control Act of 1973."
POLICY
Sec. 2. Whereas the American people are being ex-
posed to a large number of chemical substances each year,
and
Whereas among the many chemical substances con-
stantly being developed are some which may be a danger
to human health or the environment, and
Whereas the effective regulation of interstate
commerce in such chemicals necessitates the regulation
of transactions in such chemicals in intrastate commerce
as well;
Therefore, it is the policy of the united states that
new chemical substances and toxic or potentially toxic
chemical substances should be adequately tested with
respect to their safety to man and the environment; and
that such testing should be the responsibility of those
who produce such chemicals; and
That adequate authority should exist to restrict the
distribution and use of chemicals found to be toxic; and
to seize chemical substances that pose imminent hazards;
That such authority over chemicals be exercised in
such a manner as not to unduly impede technological
innovation while fulfilling the primary purpose of this
Act to assure that such innovation and commerce does not
endanger human health or the environment.
DEFINITIONS
Sec. 3. (a) "Administrator" means the Administrator
of the Environmental Protection Agency.
(b) "Chemical substance" means any organic or in-
organic substance of a particular molecular identity or
any uncombined chemical radical or element or any mix-
ture which (1) occurs naturally, or (2) is produced by
an industrial chemical process and which is marketed or
used without separation into its constituents.
(c) "New chemical substance" means any chemical sub-
stance which is not produced in commercial quantities
or imported into the United States on the effective date
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400 LEGAL COMPILATION—SUPPLEMENT n
of this Act.
(d) "Existing chemical substance" means any chemical
which is being produced in commercial quantities or im-
ported into the united states on the effective date of
this Act.
(e) "Manufacturer" means any person engaged in the
production or manufacture of chemical substances for
purposes of sale or distribution in commercial quanti-
ties, or any person engaged in the import of chemical
substances.
(f) "Processor" means any person engaged in the
preparation of a chemical substance for distribution
or use either in the form in which it is received or as
part of another product, as defined by regulations of the
Administrator.
(g) "Restrict use or distribution" means to pre-
scribe the amount sold to given types of processors, or
to limit the type of processor to whom a substance may
be sold, or to prescribe the amount which may be utilized
by a given type of processor, or to prescribe quality
control standards related to the presence of toxic
contaminants.
(h) "Byproduct" means a chemical substance produced
as a direct result of the production, manufacture, or
processing of some other chemical substance which is
subject to the provisions of this Act.
(i) "Environment" includes water, air, land, all
plants and animals living therein, and the interrela-
tionships which exist among these.
(j) "Animal" means all vertebrate and invertebrate
species, including but not limited to man and other
mammals, birds, fish, and shellfish.
(k) "protect health and the environment" means pro-
tection against any injury to man and protection against
any substantial adverse effects on environmental values,
taking into account the public interest.
(1) "District court of the United States" includes
the District court of Guam, the District court of the
Virgin Islands, the District Court of the Canal Zone,
and in the case of American Samoa and the Trust Terri-
tory of the pacific islands, the District Court of the
United states for the District of Hawaii, which court
shall have jurisdiction over actions arising under this
Act.
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GUIDELINES AND REPORTS 401
RESTRICTIONS ON USE OR DISTRIBUTION
proposal To Adopt Restrictions
Sec. 4. (a) For any chemical substance produced in
commercial quantities, after evaluating all information
developed by or otherwise provided to or made available
to him, and after referring the matter to a committee
in accordance with section 10, the Administrator may
publish proposed regulations to:
(1) restrict or prohibit the use or distribution of
the chemical substance to the extent necessary to pro-
tect health and the environment; and
(2) require that any or all persons engaged in the
distribution of the substance so regulated give notifi-
cation to purchasers of the substance of such restric-
tion in such form or manner as the Administrator deems
advisable including labeling requirements; and
(3) require such other action as may be necessary
to carry out such restrictions including prohibiting or
restricting the sale, use, or removal of such substance
or product.
Objections, Notice, Hearing, Final order
(b)(1) on or before the thirtieth day after the day
on which the proposed regulations under subsection (a)
are made public, any person who will be adversely
affected by such regulations if placed in effect may file
objections thereto with the Administrator specifying
with particularity the provisions of the regulations
deemed objectionable, stating the grounds therefor, and
requesting a public hearing upon such objections.
(2) After such request for a public hearing, the
Administrator, after due notice, shall upon request by a
manufacturer or processor, and may, in his discretion,
upon request by any other person adversely affected by
such order, hold such a public hearing for the purpose of
receiving evidence'relevant and material to the issues
raised by such objections. At the hearing, any inter-
ested person may be heard in person or by representative.
(3) As soon as practicable after the date for com-
pletion of the filing of objections and comments, and
the hearing, if any such hearing has been held, the
Administrator shall by order act upon such objections,
if any, and make public an order promulgating, modi-
fying, or withdrawing the proposed regulations issued
under paragraph (a)(1). Such order shall be based only
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402 LEGAL COMPILATION—SUPPLEMENT n
on the evidence of record and shall set forth, as part
of the order, detailed findings of fact on which the
order imposing restrictions is based and the relationship
of such finding to the restrictions imposed. Such order
must be based on the Administrator's finding that such
regulations are necessary to protect health and the
environment and that the proposed action is necessary
to carry out the objectives of this Act. in making
such a finding the Administrator shall consider all
relevant factors including: the effects on human
health and the environment of the substance or its by-
products; the benefits to be derived from the use of the
substance as compared with the risks; the normal circum-
stances of use; the degree to which release of the sub-
stance or byproducts to the general environment is con-
trolled; and the magnitude of exposure of humans and the
environment to the substance or its byproducts. The
Administrator shall specify in the order the date on
which it shall take effect, except that it shall not
be made to take effect prior to the ninetieth day after
its publication.
Modification or Rescission
(c) Manufacturers or processors of a chemical sub-
stance affected by final regulations issued pursuant
to this section may petition the Administrator for modi-
fication or rescission of the regulation. The Adminis-
trator may at any time modify or rescind such regula-
tions, proceedings respecting petitions from manufac-
turers or processors or respecting modifications or
rescissions made by the Administrator shall be held in
accordance with the standards and procedures estab-
lished by this section, except that the Administrator
may or may not, in his discretion, provide for a hearing
regarding such modifications or rescissions.
Judicial Review
(d)(1) Any person who will be adversely affected by
an order issued under subsection (b) or (c) of Section 4
if placed in effect may at any time prior to the nine-
tieth day after such order is issued file a petition with
the United States court of appeals for the circuit
wherein such person resides or has his principal place of
business, for a judicial review of such order. A copy of
the petition shall be forthwith transmitted by the clerk
of the court to the Attorney General and the
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GUIDELINES AND REPORTS 403
Administrator or other officer designated by him for
that purpose, The Administrator thereupon shall file in
the court the record on which he based his order, as
provided in section 2112 of title 28 of the united states
Code,,
(2) if the petitioner applies to the court for leave
to adduce additional evidence, and shows to the satis-
faction of the court that such additional evidence is
material and that there were reasonable grounds for the
failure to adduce such evidence in the record before the
Administrator, the court may order such additional evi-
dence (and evidence in rebuttal thereof) to be taken
before the Administrator and to be adduced upon the
hearing, in such manner and upon such terms and condi-
tions as to the court may deem proper. The Administra-
tor may modify his findings as to the facts, or make
new findings by reason of the additional evidence so
taken, and he shall file such modified or new findings,
and his recommendation, if any, for the modification or
setting aside of his original order, with the return of
such additional evidence.
(3) Upon the filing of the petition referred to in
subsection (d)(l), the court shall have jurisdiction to
affirm the order, or to set it aside in whole or in part,
temporarily or permanently. If the order of the Admin-
istrator refuses to issue, amend, or repeal a regulation
and such order is not in accordance with law the court
shall by its judgment order the Administrator to take
action, with respect to such regulation, in accordance
with law. The findings of the Administrator as to the
facts shall be sustained if based upon substantial evi-
dence on the record considered as a whole.
(d) The judgment of the court affirming or setting
aside, in whole or in part, any such order of the Admin-
istrator shall be final, subject to review by the Supreme
Court of the united States upon certiorari or certifi-
cation as provided in section 1254 of title 28 of the
United states Code.
IMMINENT HAZARD
Sec. 5. (a) An imminent hazard shall be considered
to exist when the evidence is sufficient to show that a
use or distribution of a chemical substance creates a
hazard to human health or the environment (1) that should
be corrected immediately to prevent injury to health and
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404 LEGAL COMPILATION—SUPPLEMENT n
(2) that should not be permitted to continue while an
administrative hearing or other formal proceeding is
being held.
(b) if the Administrator has reason to believe that
an imminent hazard exists he may request the Attorney
General to petition an appropriate district court of
the united states to restrain the uses or distribution
of the chemical substance responsible for the hazard
or require that stocks of such substances be recalled
by the manufacturer from wholesalers, retailers, and
other distributors. Upon the filing of any such peti-
tion the district court shall have jurisdiction to grant
such injunctive relief or temporary restraining order
pending the outcome of proceedings pursuant to sec-
tion 4 of this Act. Such proceedings shall be ini-
tiated contemporaneously with the request of the Admin-
istrator to take action under this subsection. Such
proceedings shall be deemed to be initiated when he has
referred the matter to a committee under section 10.
(c) The initiation of any proceedings or actions
under section 4 shall not prevent the Administrator
from initiating action under this section if he has
reason to believe that an imminent hazard exists.
TESTING
Sec. 6. (a) As soon as practicable after enactment
of the Act, and from time to time thereafter, the
Administrator shall, after referral to the Toxic Sub-
stances Board, for various classes and uses of chemical
substances, prescribe by regulation standards for test
protocols, and for the results to be achieved there-
from, as are necessary to protect health and the en-
vironment. He shall afford opportunity for submission
of written comments, and upon request of any affected
person, a public hearing with respect to any such
proposed regulation, and such regulation shall be based
upon substantial evidence of record in such proceeding.
He may supplement, modify, or withdraw any such regula-
tion in the same manner. Except as provided in sub-
section (b), regulations promulgated pursuant to this
section shall be applicable only to new chemical sub-
stances. The promulgation of regulations to a parti-
cular chemical substance under this section shall not
preclude action with respect to such substance under
section 4. A regulation under this section may require
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GUIDELINES AND REPORTS 405
that a manufacturer or processor of the chemical sub-
stance or class of substances perform the test called
for in the regulation, in the case of a substance or
class of substances for which there is more than one
manufacturer, or processor, such manufacturers or
processors, may designate one or more of their number,
or designate a qualified third party, to perform tests
required under this section, and may share the costs of
such tests.
(b)(1) upon a determination that an existing chemi-
cal substance (or class of substances) may pose an un-
reasonable threat to health or the environment, the
Administrator may promulgate regulations under subsec-
tion (a) of this section if he has not previously done
so.
(2) The failure of a manufacturer or processor, of
a substance to comply with regulations promulgated under
this section shall relieve the Administrator in any
proceeding under Section 4 from establishing that any
restriction or prohibition proposed by him to be im-
posed against such manufacturer or processor under
Section 4 is necessary to protect health and the en-
vironment, and any such proposed restriction or pro-
hibition shall apply pending the outcome of proceedings
under section 4 as if a final regulation were in effect.
REPORTS
Sec. 7. (a) The Administrator may by regulation
require any or all manufacturers or processors of
chemical substances to report to him annually or at such
more frequent times as the Administrator may reasonably
require as to any or all of the following:
(1) The names of any or all substances produced or
used by the manufacturer or processor;
(2) The chemical identity and molecular structure
of such substances;
(3) The categories of use of each such substance,
insofar as they are known to him;
(4) Reasonable estimates of the amounts of each
substance produced by him for each such category of use;
and
(5) A description of the byproducts, if any, re-
sulting from the production of such substance, and,
insofar as they are known to him, from the use thereof.
(b) Whenever the Administrator determines that such
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406 LEGAL COMPILATION—SUPPLEMENT n
action is necessary to accomplish the purposes of this
Act, he may direct manufacturers of a chemical substance
to provide, within a specified period of time not to be
less than thirty days, the results of any tests on the
health or environmental effects of the substance or its
byproducts which have been performed by or at the in-
stance of the manufacturer or such results as are other-
wise known to him, and any or all of the items of in-
formation listed in subsection (a).
(c) Whenever the Administrator determines that such
action would be productive and desirable to allow him to
carry out his responsibilities and authorities under this
Act, he may by publishing a notice in the Federal Regis-
ter invite and afford all interested persons an oppor-
tunity to provide in writing information respecting the
health or environmental effects of the substance or its
byproducts.
SEIZURE
Sec. 8. (a) Any chemical substance which the Admin-
istrator finds (1) is manufactured, processed, used, or
distributed in violation of any regulation issued under
section 4 or 6 and (2) of itself constitutes an imminent
hazard shall be liable to be proceeded against while in
commerce, or at any time thereafter, on libel of in-
formation and condemned in any district court of the
United states within the jurisdiction of which the
article is found. Such substance shall be liable to
seizure by process pursuant to the libel, and the pro-
cedure in cases under this section shall conform, as
nearly as may be, to the procedure in admiralty; ex-
cept that on demand of either party any issue of fact
joined in any such case shall be tried by jury.
(b) Any substance condemned under this section
shall, after entry of the decree, be disposed of by
destruction or sale as the court may, in accordance
with the provisions of this section, direct, and the
proceeds thereof, if sold, less the legal costs and
charges, shall be paid into the Treasury of the United
States; but such substance shall not be sold under such
decree contrary to the provisions of this Act or the
laws of the jurisdiction in which sold: provided, that
after entry of the decree and upon the payment of the
costs of such proceedings and the execution of a good
and sufficient bond conditioned that such substance
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GUIDELINES AND REPORTS 407
shall not be sold or disposed of contrary to the pro-
visions of this Act or the laws of any state or Terri-
tory in which sold, the court may by order direct that
such substances be delivered to the owner thereof to be
destroyed or brought into compliance with the provisions
of this Act under the supervision of an officer or
employee duly designated by the Administrator, and the
expenses of such supervision shall be paid by the per-
son obtaining release of the article under bond.
(c) When a decree of condemnation is entered
against the article, court costs and fees, and storage
and other proper expenses shall be awarded against the
person, if any, intervening as claimant of the article.
RELATIONSHIP TO OTHER LAWS
Sec. 9» (a) This Act shall not apply to—
(1) economic poisons subject to the Federal
Insecticide, Fungicide, and Rodenticide Act,
as amended, and chemical substances used
solely in such poisons: provided. That if a
chemical substance which constitutes such a
poison or such an ingredient is or may be
used for any purpose which is not regulated
by the Federal insecticide. Fungicide, and
Rodenticide Act, as amended, this Act shall
apply to such other uses.
(2) foods, drugs, devices, and cosmetics
subject to the Federal Food, Drug, and Cos-
metic Act, as amended, foods subject to the
Federal Meat Inspection Act, the Poultry
Products inspection Act, and the Egg Products
Inspection Act; and toys, articles and other
substances subject to the Federal Hazardous
Substances Act, or products regulated pur-
suant to the consumer product Safety Act of
1972: provided, that this Act shall apply
to any use of such a product or component
thereof not regulated under such Acts.
(3) any source material, special nuclear
material, or byproduct material as defined in
the Atomic Energy Act of 1954, as amended,
and regulations issued pursuant thereto by the
Atomic Energy commission;
(4) the authority of the secretary of the
Department of Transportation to establish
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408 LEGAL COMPILATION—SUPPLEMENT n
rules and regulations for the transportation
of hazardous materials.
(b) To the exten4 that such activities are subject
to regulation under the Occupational Safety and Health
Act of 1970, the Administrator shall not regulate the
use or distribution of a new or existing chemical sub-
stance on the basis of any possible hazard to employees
in their place of employment, if it appears to the
Administrator that any such substance may pose a hazard
when transported for any purpose subject to subsection
(a) of this section or when used or may be a hazard to
employees in their place of employment, he shall trans-
mit any data received relevant to such hazards to the
Federal department or agency with authority to take
legal action if a hazard is found to exist.
(c) The Administrator shall coordinate actions
taken under this Act with actions taken to enforce the
Federal water pollution control Act as amended and the
Clean Air Act as amended, and shall, where appropriate,
use the authorities contained in those Acts to regulate
chemical substances.
(d) The Administrator shall make every effort to
maintain close coordination with the Department of
Health, Education, and Welfare and other appropriate
Federal agencies in administering the provisions of this
Act.
(e) This Act shall not be construed as superseding
or impairing the provisions of any other law or treaty
of the United States.
TOXIC SUBSTANCES BOARD
Sec. 10. (a) There shall be established in the
Environmental Protection Agency a Toxic substances
Board consisting of a reasonable number of scientifi-
cally qualified persons. The Administrator shall
appoint as the members of the board the persons nomin-
ated to him by the National Academy of Sciences except
that the Secretary of Health, Education, and Welfare
shall appoint one member of the Board from whatever
source he desires„ One of the members may be designated
at any time by the Director of the National Academy of
Sciences to serve as Chairman of the Board.
(b) The National Academy of sciences, in consulta-
tion with the Board, shall establish, maintain, and
publish a continuing list of qualified scientists,
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GUIDELINES AND REPORTS 409
including experts in the areas likely to be covered by
this Act0 Such scientists shall be consultants to the
Toxic Substances Board.
(c) Before proposing any regulations under author-
ity of section 4 or 6 the Administrator shall refer his
proposed action and the available evidence to a Committee
drawn from members of the Board and the list of con-
sultants to the Board, except that the Secretary of
Health, Education, and welfare may appoint one member of
the Committee from whatever source he desires. The
Administrator shall appoint as the members of the
Committee the consultants nominated to him by the Board.
The Committee shall report its views, in writing, to the
Administrator, within a reasonable time, not to be less
than forty-five days, specified by the Administrator-
if the committee fails to report within the specified
time, the Administrator may proceed to take action under
this Act. The report of the Committee shall be con-
sidered as part of the record in any proceeding taken
with respect to the Administrator's action.
(d) The Administrator may, at his discretion, also
request the Board to convene a panel to consider other
actions proposed to be taken under this Act, including
actions proposed to be taken under section 5(b).
(e) The Administrator is authorized to reimburse
the National Academy of Sciences for expenses incurred
in carrying out this section.
RESEARCH
Sec. 11. The Administrator is authorized to conduct
such research and monitoring as is necessary to carry out
his functions and responsibilities under this Act. Such
research and monitoring shall not duplicate the efforts
of other Federal agencies. To this end, the Adminis-
trator is authorized to establish research laboratories,
including the acquisition of necessary land, buildings,
or facilities, and to make contracts and grants for such
research and monitoring.
ADMINISTRATIVE INSPECTIONS AND WARRANTS
Sec. 12. (a)(1) For the purpose of inspecting,
copying, and verifying the correctness of records, re-
ports, or other documents required to be kept or made
under this Act and otherwise facilitating the carrying
out of his functions under this Act, the Administrator
is authorized, in accordance with this section, to enter
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410 LEGAL COMPILATION—SUPPLEMENT n
any factory, warehouse, or premises in which chemical
substances are manufactured, processed, or held and to
conduct administrative inspections thereof, and of the
things specified in this section, relevant to those
functions.
(2) Such entries and inspections shall be carried
out through officers of employees (hereinafter referred
to as "inspectors") designated by the Administrator.
Any such inspector, upon stating his purpose and pre-
senting to the owner, operator, or agent in charge of
such premises (A) appropriate credentials and (B) his
administrative inspection warrant or a written notice
of his other inspection authority, shall have the right
to enter such premises and conduct such inspection at
reasonable times.
(3) Except when the owner, operator, or agent in
charge of such premises so consents in writing, no
inspection authorized by this section shall extend to—
(A) financial data;
(B) sales data other than shipment data?
(C) pricing data;
(D) personnel data, or
(E) research data (other than data relating
to the tests described in subsection 7(b))0
(b) A warrant under this section shall not be
required for entries and administrative inspections
(including seizures of property of a nature or quantity
appropriate to such inspections)—
(1) with the written consent of the owner, opera-
tor, or agent;
(2) in situations presenting imminent danger to
health or safety;
(3) in any other exceptional or emergency circum-
stances where time or opportunity to apply for a warrant
is lacking; or
(4) in any other situations where a warrant is not
constitutionally required.
(c) issuance and execution of administrative in-
spection warrants shall be as follows:
(1) Any judge of the United States or of a State
court of record, or any United States magistrate, may,
within his territorial jurisdiction, and upon proper
oath or affirmation showing probable cause, issue
warrants for the purpose of conducting administrative
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GUIDELINES AND REPORTS 411
inspections authorized by this Act or regulations there-
under,, and seizures of property appropriate to such
inspections. For the purposes of this section, the
term "probable cause" means a valid public interest in
the effective enforcement of this Act or regulations
thereunder sufficient to justify administrative in-
spections of the area, premises, building, or contents
thereof in the circumstances specified in the applica-
tion for the warrant.
(2) A warrant shall issue only upon an affidavit
of an officer or employee having knowledge of the facts
alleged sworn to before the judge or magistrate and
establishing the grounds for issuing the warrant. if
the judge or magistrate is satisfied that grounds for
the application exist or that there is probable cause
to believe they exist, he shall issue a warrant identi-
fying the area, premises, or building, to be inspected,
the purpose of such inspection, and, where appropriate,
the type of property to be inspected, if any. The
warrant shall identify the items or types of property
to be seized, if any. The warrant shall be directed to
a person authorized under subsection (a)(2) to execute
it. The warrant shall state the grounds for its issuance
and the name of the person or persons whose affidavit
has been taken in support thereofl It shall command the
person to whom it is directed to inspect the area, pre-
mises, or building identified for the purpose specified,
and, where appropriate, shall direct the seizure of the
property specified. The warrant shall direct that it be
served during normal business hours. It shall designate
the judge or magistrate to whom it shall be returned.
(3) A warrant issued pursuant to this section
must be executed and returned within ten days of its
date unless, upon a showing by the United States of a
need therefor, the judge or magistrate allows additional
time in the warrant. If property is seized pursuant to
a warrant, the person executing the warrant shall give
to the person from whom or from whose premises the
property was taken a copy of the warrant and a receipt
for the property taken or shall leave the copy and
receipt at the place from which the property was taken.
The return of the warrant shall be made promptly and
shall be accompanied by a written inventory of any
property taken. The inventory shall be made in the
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412 LEGAL COMPILATION—SUPPLEMENT n
presence of the person executing the warrant and of
the person from whose possession or premises the pro-
perty was taken, if they are present, or in the presence
of at least one credible person other than the person
making such inventory, and shall be verified by the
person executing the warrant. The judge or magistrate,
upon request, shall deliver a copy of the inventory to
the person from whom or from whose premises the property
was taken and to the applicant for the warrant„ In
any case of seizure of property without warrant pur-
suant to this section, the person executing such seizure
shall give to the person from whose premises the pro-
perty was taken a receipt for such property, or shall
leave such receipt at the place from which the property
was taken. The receipt shall be accompanied by a
written inventory of any property taken and shall be
made by the person executing the seizure in the presence
of the person from whose possession or premises the
property was taken, if they are present, or in the
presence of at least one credible person other than the
person making such inventory.
(4) The judge or magistrate who has issued a
warrant under this section shall attach to the warrant
a copy of the return and all papers filed in connection
therewith and shall file them with the clerk of the
district court of the United states for the judicial
district in which the inspection was made.
EXPORTS AND IMPORTS
Sec. 13. (a) Notwithstanding any other provision
of this Act, no substance shall be deemed in violation
of this Act when intended solely for export to any
foreign country except if the Administrator finds that
as exported and used the substance, or particular uses
of the substance, will produce a significant direct or
indirect hazard to human health or the environment in
the United States, provided, however, that such chemical
substance shall be subject to the reporting requirements
of section 7 (a) of this Act.
(b) The Secretary of the Treasury shall refuse
entry into the United States of any chemical substance
or article containing such substance offered for entry
if it violates any of the provisions of this Act. if a
substance or article is refused entry, the secretary of
the Treasury shall refuse delivery to the consignee and
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GUIDELINES AND REPORTS 413
shall cause the disposal or storage of any substance
or article refused delivery which has not been exported
by the consignee within three months from the date of
notice of such refusal under such regulations as the
Secretary of Treasury may prescribe: provided. That
the Secretary of Treasury may deliver to the consignee
such substance or article pending examination and deci-
sion in the matter on execution of bond for the amount
of the full invoice value of such substance or article,
together with the duty thereon, and on refusal to
return such substance or article for any cause to the
custody of the Secretary of the Treasury, when demanded,
for the purpose of excluding them from the country, or
for any other purpose, said consignee shall forfeit the
full amount of said bond; And provided further. That
all charges for storage, cartage, and labor on substances
or articles which are refused admission or delivery
shall be paid by the owner or consignee, and in default
of such payment shall constitute a lien against any
future importation made by such owner or consignee.
(c) The Secretary of the Treasury, in consultation
with the Administrator, shall issue regulations for the
enforcement of subsection (b) above.
CONFIDENTIALITY
SeCo 14. (a) Copies of any communications, docu-
ments, reports or other information received by the
Administrator from any manufacturer shall be available
to the public upon identifiable request, and at cost,
unless such information may not be publicly released
under the terms of subsection (b) of this section.
(b) if requested by a manufacturer furnishing
such information, the Administrator or any officer or
employee of the Environmental Protection Agency shall
not disclose any information which contains or might
reveal information referred to in section 1905 of
title 18 of the united States Code, and is otherwise
unavailable to the public, except that such information
may be disclosed —
(1) to other government officials;
(2) to duly authorized committees of congress;
(3) in camera in any judicial proceedings if
ordered by a court;
(4) in camera if relevant in any proceeding under
this Act to carry out the purposes of this Act; and
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414 LEGAL COMPILATION—SUPPLEMENT n
(5) to other officers and officials concerned with
carrying out this Act.
PROHIBITED ACTS
Sec. 15. The following acts and the causing thereof
are prohibited—
(a) The failure to comply with any final regulation
or order issued by the Administrator pursuant to this
Act;
(b) The failure or refusal to provide information
or results of tests as required by section 7 of this Act;
(c) The sale, distribution, or importation into
the United states of a chemical substance subject to
regulations promulgated under section 6 for which the
standards applicable thereto required by such regula-
tions have not been met;
(d) The knowing failure odj any person who pur-
chases or receives a substance and who is required to be
given notice of restrictions on use or distribution of
such substance pursuant to a final regulation under para-
graph 4(a)(2), to comply with such restrictions on use
or distribution;
(e) The failure to perform any other action required
under this Act.
PENALTIES AND REMEDIES
Sec. 16„ (a) Any person willfully violating subsec-
tions 15 (a), (b), (c), or (d) shall on conviction be
fined not more than $25,000 or imprisoned for not more
than one year or both.
(b)(1) Any person violating subsections 15(a),
(b), (c), or (d), shall be liable to a civil penalty to
the United states of a sum which is not more than
$25,000 for each day of violation, to be assessed by the
Administrator after notice and opportunity for hearing
and after he has considered the nature, circumstances,
and extent of such violation, the practicability of
compliance with the provisions violated and any good
faith efforts to comply with such provisions.
(2) Upon failure of the offending party to pay
the penalty, the Administrator may request the Attorney
General to commence an action in the appropriate dis-
trict court of the United states for such relief as may
be appropriate.
(c) The Attorney General or his delegate may bring
an action in the appropriate district court of the
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GUIDELINES AND REPORTS 415
United States for equitable relief to redress a viola-
tion by any person of any provision of section 15 of
this Act, and the district courts of the United States
shall have jurisdiction to grant such relief as the
equities of the case may require.
ENVIRONMENTAL PREDICTION AND ASSESSMENT
Sec. 17. The Environmental protection Agency shall,
cooperation with other Federal agencies, develop the
.ecessary personnel and information resources to pre-
dict the introduction of new chemical substances into
the environment and assess the environmental conse-
quences of such introduction.
USE- OF GOVERNMENT FACILITIES
Sec. 18. The Administrator may use, by agreement,
the personnel, services, and facilities of other Federal
departments, agencies, or instrumentalities, whether on
a reimbursable or nonreimbursable basis.
HEALTH AND ENVIRONMENTAL DATA
Sec. 19. The council on Environmental Quality in
consultation with the Administrator, the Secretary of
Health, Education, and Welfare, the secretary of Com-
merce, and the heads of other appropriate departments
or agencies, shall coordinate a study of the feasi-
bility of establishing (1) a standard classification
system for chemical compounds and related substances,
and (2) a standard means for storing and for obtaining
rapid access to information respecting such materials.
CITIZEN CIVIL ACTIONS
Sec. 20o (a) Except as provided in subsection (b),
any person may commence a civil action for injunctive
relief on his own behalf, whenever such action consti-
tutes a case or controversy—
(1) against any (i) manufacturer and processor of
a chemical substance, (ii) the United States, and (iii)
any other governmental instrumentality or agency to the
extent permitted by the eleventh amendment to the
Constitution who is alleged to be in violation of any
regulation restricting the use or distribution of a
chemical substance, or order promulgated under this Act,
or
(2) against the Administrator where there is
alleged a failure of the Administrator to perform any
act or duty under this Act which is not discretionary
with the Administrator.
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416 LEGAL COMPILATION—SUPPLEMENT n
Any action under paragraph (a)(1) of this subsection
shall be brought in the district court for the district
in which the alleged violation occurred and, any action
brought under paragraph (a)(2) of this subsection shall
be brought in the district court of the District of
Columbia^.
The district courts shall have jurisdiction, without
regard to the amount in controversy or the citizenship
of the parties over suits brought under this section.
(b) No civil action may be commenced—
(1) under subsection (a) (1)
(A) prior to sixty days after the plaintiff
has given notice of the violation (i) to the Adminis-
trator, and (ii) to any alleged violator of the regula-
tion or order, or
(B) if the Attorney General has commenced and
is diligently prosecuting a civil or criminal action in
a court of the United States to require compliance with
the regulation or order, or
(C) if the Attorney General has commenced -an
action to impose a penalty pursuant to section 16 of
this Act.
(2) under subsection (a) (2) prior to sixty days
after the plaintiff has given notice of such action to
the Administrator, except that such action may be
brought ten days after such notification in the case of
an action under this section for the failure of the
Administrator to act under section 4. Notice under
this subsection shall be given in such manner as the
Administrator shall prescribe by regulation.
(c) in any action under this section in which the
United states is not a party, the Attorney General, at
the request of the Administrator, may intervene on be-
half of the united States as a matter of right.
(d) The Court, in issuing any final order in any
action brought pursuant to subsection (a) of this sec-
tion, may award costs of litigation (including reason-
able attorney and expert witness fees) to any party,
whenever the court determines such an award is appro-
priate .
(e) Nothing in this section shall restrict any
right which any person (or class of persons) may have
under any statute or common law to seek enforcement of
any regulation or order or to seek any other relief.
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GUIDELINES AND REPORTS 417
(f) For purposes of this section, the term "person"
means an individual, corporation, partnership, associa-
tion. State, municipality, or political subdivision of
a state.
(g) When any actions brought under this subsection
involving the same defendant and the same issues of vio-
lations are pending in two or more jurisdictions, such
pending proceedings, upon application of the defendant
reasonably made to the court of one such jurisdiction,
shall be consolidated for trial by order of such court,
and tried in (1) any district selected by the defendant
where one of such proceedings is pending; or (2) a
district agreed upon by stipulation between the parties.
If no order for consolidation is so made within a reason-
able time, the defendant may apply to the court of
one such jurisdiction, and such court (after giving all
parties reasonable notice and opportunity to be heard)
shall by order, unless good cause to the contrary is
shown, specify a district of reasonable proximity to the
applicant's principal place of business, in which all
such pending proceedings shall be consolidated for trial
and tried. Such order of consolidation shall not
apply so as to require the removal of any case the date
for trial of which has been fixed. The court granting
such order shall give prompt notification thereof to
the other courts having jurisdiction of the cases covered
thereby.
STATE REGULATIONS
Sec. 21„ Nothing in this Act shall affect the
authority of any State or local government to restrict
the distribution or use of a chemical substance or im-
pose requirements of tests and test results for a chemi-
cal substance except that (1) if the Administrator has
published proposed regulations under section 4 with
respect to limiting particular uses of a particular
substance a State or local government may not thereafter
impose restrictions on such uses of such substance other
than a total ban on such use or uses; (2) if the Admin-
istrator has published proposed regulations under sec-
tion 6 with respect to tests for particular substances
or uses, a State or local government may not impose
test protocols or results to be achieved therefrom with
respect to such substances and uses for the purposes
similar to this Act; and (3) if the Administrator has
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418 LEGAL COMPILATION—SUPPLEMENT n
published proposed regulations under section 4 with
respect to limiting particular uses of a particular
substance or if the Administrator has published pro-
posed regulations under section 6 with respect to
tests for particular substances or uses, a State is not
preempted from enforcing any restrictions or test proto-
cols and results to be achieved therefrom existing at
the time any such proposed regulation was published;
provided that if the Administrator issues an order under
section 4 (b) (3) restricting the use of such substance
or withdrawing a proposed regulation restricting a use
of such substance, or if the Administrator issues an
order under section 6 prescribing tests or withdrawing
a proposed regulation for such tests, the State may not
enforce any such restrictions, test protocols, or
results to be achieved therefrom after the effective
date of such order, other than a total ban on such use or
uses.
REGULATIONS
Sec. 22. The Administrator is authorized to issue
such regulations as he may deem appropriate to carry
out the purposes of this Act and to amend them at any
time.
AUTHORIZATION FOR APPROPRIATIONS
Sec. 23. There is hereby authorized to be appro-
priated to the Environmental Protection Agency such
sums as may be necessary for the purposes and adminis-
tration of this Act.
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GUIDELINES AND REPORTS 419
SECTION-BY-SECTION ANALYSIS
Toxic Substances Control Act of 1973
Section 1 — short title
Section 2 — Policy — It is the policy of the Act that
since the American people are being exposed to a large
number of chemical substances some of which may be a
danger to human health and the environment, regulation
of both interstate and intrastate commerce in such
chemicals is required, chemical substances should be
adequately tested by the producer, and adequate authority
for use and distribution restrictions and for seizure
of imminent hazard chemical substances should exist.
Section 3 — Definitions — "Chemical substance" is any
organic or inorganic substance of a particular molecular
identity or any uncombined chemical radical or any
mixture. "Manufacturer" includes both the producer of
a chemical substance or the importer of such a substance.
"Restrict use or distribution" means to prescribe amount
that may be sold to given processors, the amount that a
processor may use, or quality control standards related
to the presence of toxic contaminants.
Section 4 — Restrictions on Use or Distribution —
Establishes a mechanism whereby the Administrator may
propose regulations to restrict or prohibit the use or
distribution of chemical substances, may require
distributors to give notification to purchasers of
restrictions imposed on the substance, and may require
other necessary actions including prohibiting sale, use,
or removal of such substance.
Subsection (b) provides for public hearings for
manufacturers or processors who object to the regula-
tions proposed and established procedures for issuance
of an order by the Administrator promulgating, modify-
ing or withdrawing the proposed regulations.
Subsection (c) provides for petitioning the Admin-
istrator to modify or rescind a final regulation under
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420 LEGAL COMPILATION—SUPPLEMENT n
this section and subsection (d) provides for judicial
review of any order issued under this section.
Section 5 — Imminent Hazard — Provides authority for
the Administrator to request court action, to restrain
uses or distribution of a chemical substance that poses
an imminent hazard, including the ordering or a recall
of such a substance.
Section 6 — Testing — The Administrator is authorized
to prescribe by regulation standards for test protocols
for chemical substances produced subsequent to the enact-
ment of this legislation. Such regulations shall
include the results that must be achieved in performance
of the testing, which shall be performed by the manu-
facturer or processor.
Subsection (b) provides that the Administrator may
subject existing chemical substances to testing require-
ments if he determines that such chemicals pose an
unreasonable threat to health or the environment.
Section 7 — Reports — Provides that the Administrator
may require manufacturers and processors to report to him
the names, chemical identity, uses, amounts, and by-
products of substances that the manufacturer or processor
is producing or using.
Subsection (b) — Provides that the Administrator
may direct the manufacturer of a substance to provide
results of any tests that the manufacturer has performed
or has had performed on that substance.
Section 8 — Seizure — The Administrator is authorized
to seize under judicial order any substance which is
manufactured, processed, used, or distributed in vio-
lation of any regulation and which constitutes an
imminent hazard.
Section 9 — Relation to Other Laws — This Act shall
not apply to matters subject to regulation under the
Federal Insecticide, Fungicide, and Rodenticide Act,
the Food, Drug, and Cosmetic Act, the Occupational
Health and Safety Act, the Consumer Product Safety Act,
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GUIDELINES AND REPORTS 421
and under other authorities such as those possessed by
the Atomic Energy Commission and the Department of Trans-
portation.
Section 10 — Toxic Substances Board — A Toxic Substances
Board is to be established and is to consist of scientif-
ically qualified persons to be appointed by the
Administrator from nominations made by the National
Academy of Sciences. The Secretary of Health, Education,
and Welfare also shall appoint one member of the Board
from whatever source he desires. It will be the responsi-
bility of this Board, working through committees, to
report its views in writing to the Administrator on any
regulations that he has proposed with respect to restric-
tions on use and distribution under Section 4 or with
respect to testing under Section 6.
Section 11 — Research — The Administrator is authorized
to conduct research and monitoring necessary to carry
out his duties under the Act and to make contracts and
grants for such research and monitoring.
Section 12 — Administrative Inspections and Warrants —
Provides authority for the Administrator to conduct
administrative inspections of facilities where chemical
substances are manufactured, processed, or held. A
warrant is required for such entries and inspections
except when the owner consents in writing, when there
are situations presenting imminent danger or emergency
circumstances, or in a situation where a warrant is not
constitutionally required.
Section 13 — Exports and Imports — Provides that no
substance intended solely for export shall be subject
to any of the requirements of the Act except for the
reporting requirements of Section 7(a).
Subsection (b) provides that the Secretary of Treasury
shall refuse entry in the United States of any substance
or article containing such substance if it violates any
provision of this Act.
Section 14 — Confidentiality — Provides that information
received by the Administrator from any manufacturer sh4ll
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422 LEGAL COMPILATION—SUPPLEMENT n
"be available to the public unless it is confidential
information protected by the Act or by other Federal law.
Section 15 — Prohibited Acts — These include the failure
to comply with regulations, the failure to provide infor-
mation required under the reporting section, the sale,
distribution, or importation in the United States of a
substance subject to testing requirements when the
requirements for that substance have not been met, the
failure by a purchaser who has been given notice of
restrictions on use and distribution to comply with
such restrictions, and the failure to perform other
required actions.
Section 16 — Penalties and Remedies — Provides for a
fine of up to $25,000 or one year in imprisonment for
any violation of prohibited acts and for a civil penalty
of up to $25,000 a day for such violation.
Section 17 — Environmental Prediction and Assessment —
The Environmental Protection Agency is mandated, to
develop along with other Federal agencies, prediction
and assessment capability with regard to environmental
consequences of introduction of new chemical substances
in the environment.
Section 18 — Use of Government Facilities — Authorizes
the Administrator to enter into agreements to use govern-
ment facilities of other Federal entities.
Section 19 — Health and Environmental Data — The Council
on Environmental Quality, in consultation with the Environ-
mental Protection Agency, Department of Health, Education,
and Welfare, and the Commerce Department, shall coordinate
a study of the feasibility of establishing a standard
classification system for chemical substances and a rapid
access information storage system with regard to such
substances.
Section 20 — Citizen Civil Suits — Citizen civil actions
may be brought against any manufacturer or processor of
a chemical substance or against any governmental entity
which is in violation of any regulation restricting use
or distribution of a chemical substance or of any order
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GUIDELINES AND REPORTS 423
promulgated under this Act, Action against the Admin-
istrator is authorized when there is alleged a failure
by him to perform a nondiscretionary action.
Section 21 — State Regulations — The States are pro-
hibited from imposing use or distribution restrictions
on chemical substances when the Administrator has published
proposed regulations to accomplish the same, except that
the State may impose a total ban on such uses. The
States are also prohibited from imposing regulations
with respect to test protocols on substances for which
the Administrator has proposed such protocols. The
States are allowed to enforce restrictions for test
protocols which were in existence prior to Federal require-
ments in these areas until the Administrator issues a
final order with respect to such substances.
Section 22 — Regulations — The Administrator is author-
ized to issue such regulations as appropriate to carry
out the Act.
Section 23 — Authorization for Appropriations — Appropri-
ations of such sums as may be necessary for the purposes
and administration of this Act are authorized.
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GUIDELINES AND REPORTS 425
Controlling Pollution
Land Disposal of
Hazardous Wastes
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GUIDELINES AND REPORTS 427
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
February 21, 1973
OFFICE OF THE
ADMINISTRATOR
Honorable Spiro T. Agnew
President of the Senate
Washington, D. C. 20510
Honorable Carl Albert
Speaker of the House of Representatives
Washington, D. C. 20515
Dear Mr. [President/Speaker]:
I am pleased to forward to you a proposed bill,
"The Hazardous Waste Management Act of 1973," designed
to protect public health and other living organisms
from the adverse impact of the disposal of hazardous
wastes.
The proposed bill is being transmitted in accord-
ance with the Environment and Natural Resources State
of the Union Message of the President.
The proposed Hazardous Waste Management Act of 1973
addresses the mounting environmental problem resulting
from the unregulated disposition of hazardous wastes.
With advances in industry and technology, increasingly
complex wastes pose significant hazards to health when
they are released into the environment.
Hazardous wastes would be identified under the
proposed bill by the Administrator of the Environmental
Protection Agency. Standards for treatment and dis-
posal of such wastes and guidelines for State programs
to regulate such wastes would be issued. The primary
responsibility for regulating hazardous wastes will rest
with the States. Direct Federal regulation under a
permit system would be provided for a limited category
of the most hazardous wastes. Federal authority would
also be provided to ensure compliance with the standards
in the event States failed to do so or in the event an
imminent hazard is presented. Research, investigations,
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and studies with respect to the impact of wastes upon
the environment, development and operation of waste
management programs, and the reduction of waste
generation and recovery of secondary materials would
also be provided.
I believe that this proposal provides a much needed
solution to the problems of hazardous waste management
and disposition, and presents an opportunity to prevent
serious hazards to human health and other living
organisms.
I recommend that the bill be referred to the
appropriate Committee for consideration and that it
be enacted.
The Office of Management and Budget has advised
that the enactment of this proposed legislation would
be in accord with the program of the President.
Sincerely yours,
/s/ William D. Ruckelshaus
Administrator
Enclosure
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GUIDELINES AND REPORTS 429
S. 1086
H.R. 4873
A BILL
To assure protection of ptiblic health and other
living organisms from the adverse impact of the dis-
posal of hazardous wastes, to authorize a research
-program with respect to hazardous waste disposal, and
for other purposes.
Be it enacted by the Senate and the House of
Representatives of United States of America in the
Congress assembled.
Sec. 1. This Act may be cited as the "Hazardous
Waste Management Act of 1973."
Sec. 2. FINDINGS AND PURPOSE
(a) The Congress finds—
(1) that continuing technological progress,
improvement in the methods of manufacture, and
abatement of air and water pollution has resulted
in an ever-mounting increase of hazardous wastes;
(2) that improper land disposal and other
management practices of solid, liquid and semi-
solid hazardous wastes which are a part of inter-
state commerce are resulting in adverse impact on
health and other living organisms;
(3) that thetaowledge and technology necessary
for alleviating adverse health, environmental and
aesthetic impacts associated with current waste
management and disposal practices are generally
available at costs within the financial capacity
of those who generate such wastes, even though this
knowledge and technology are •not widely utilized;
(4) that private industry has demonstrated its
capacity and willingness to develop, finance,
construct and operate facilities and to perform
other activities for the adequate disposal of
hazardous and other waste materials;
(5) that while the collection and disposal of
wastes should continue to be a responsibility of
private individuals and organizations and the
concern of Stats, regional and local agencies, the
problems of hazardous waste disposal as set forth
above and as an intrinsic part of interstate
commerce have become a matter national in scope and
in concern, and necessitate Federal action through
regulation of the treatment and the disposal of the
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most hazardous of these wastes, and through
technical and other assistance in the application
of new and improved methods and processes to pro-
vide for proper waste disposal practices and
reductions in the amount of waste and unsalvageable
materials.
(b) The purposes of this Act therefore are -
(1) to protect public health and other living
organisms through Federal regulation in the treat-
ment and disposal of certain hazardous wastes;
(2) to provide for the promulgation of Federal
guidelines for State regulation of the treatment and
disposal of hazardous wastes not subject to Federal
regulation;
(3) to provide technical and other assistance
to public and private institutions in the applica-
tion of efficient and effective waste management
systems;
(4) to promote a national research program
relating to the health and other effects of hazardous
wastes and the prevention of adverse impacts re-
lating to health and other living organisms.
Sec. 3. DEFINITIONS
When used in this Act:
(1) The term "Administrator" means the Administrator
of the Environmental Protection Agency.
(2) The term "State" means a State, the District of
Columbia, the Commonwealth of Puerto Rico.
(3) The term "waste" means useless, unwanted, or
discarded solid, semi-solid or liquid materials.
(4) The term "hazardous waste" means any waste or
combination of wastes which pose a substantial present
or potential hazard to human health or living organisms
because such wastes are nondegradable or persistent in
nature or because they can be biologically magnified,
or because they can be lethal, or because they may
otherwise cause or tend to cause detrimental cumulative
effects.
(5) The term "secondary material" means a material
that is or can be utilized in place of a primary or
raw material in manufacturing a product.
(6) The term "generation" means the act or process
of producing waste materials.
(7) The term "storage" means the interim contain-
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GUIDELINES AND REPORTS 431
ment of waste after generation and prior to ultimate
disposal. Containment for more than two years shall be
considered disposal.
(8) The term "transport" means the movement of
wastes from the point of generation to any intermediate
transfer points, and finally to the point of ultimate
disposal.
(9) The term "treatment" means any activity or
processing designed to change the physical form or
chemical composition of waste so as to render such
materials non-hazardous.
(10) The term "disposal of waste" means the dis-
charge, deposit, or injection into subsurface strata
or excavations or the ultimate disposition onto the
land of any waste.
(11) The term "disposal site" means the location
where any final deposition of waste materials occurs.
(12) The term "treatment facility" means a
location at which waste is subjected to treatment and
may include a facility where waste has been generated.
(13) The term "person" means any individual,
partnership, co-partnership, firm, company, corporation,
association, joint stock company, trust. State,
municipality, or any legal representative agent or
assigns.
(14) The term "municipality" means a city, town,
borough, county, parish, district, or other public body
created by or pursuant to State law with responsibility
for the planning or administration of waste management,
or an Indian tribe or an authorized Indian tribal
organization.
(15) The term "waste management" means the
systematic control of the generation, storage, trans-
port, treatment, recycling, recovery, or disposal.of
waste materials.
Sec. 4. STANDARDS AND GUIDELINES FOR STATE
REGULATION
(a) Within 18 months after the date of enactment
of this Act, and from time to time thereafter, the
Administrator pursuant to this Section and after
consultation with representatives of appropriate Federal
agencies shall by regulation:
(1) identify hazardous wastes;
(2) establish standards for treatment and
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disposal of such wastes; and
(3) establish guidelines for State programs
for implementing such standards.
(b) In identifying a waste as hazardous, pursuant
to this section, the Administrator shall specify
quantity, concentration and the physical, chemical, or
biological properties of such waste, taking into
account means of disposal, disposal sites, and avail-
able disposal practices.
(c) The standards established under this Section
shall include minimum standards of performance required
to protect human health and other living organisms
and minimum acceptable criteria as to characteristics
and conditions of disposal sites and operating methods,
techniques, and practices of hazardous wastes disposal
taking into account the nature of the hazardous waste
to be disposed. Such standards shall include but not
be limited to requirements that any person generating
waste must (1) appropriately label all containers used
for on-site storage or for transport of hazardous
waste; (2) follow appropriate procedures for treating
hazardous waste on-site; (3) transport all hazardous
waste intended for off-site disposal to a hazardous
waste disposal facility for which a permit has been
issued. In establishing such standards the Administrator
shall take into account the economic and social costs
and benefits of achieving such standards.
(d) The guidelines established under paragraph
(a)(3) of this Section shall provide that:
(1) With respect to disposal sites for
hazardous wastes, the State program requires that
any person obtain from the State a permit to
operate such site?
(2) Such permits require compliance with the
minimum standards of performance acceptable site
criteria set by the guidelines;
(3) The State have such regulatory and other
authorities as may be necessary to carry out the
purpose of this Act, including, but not limited
to, the authority to inspect disposal sites and
records, and to judicially enforce compliance with
the requirements of an approved program against
any person.
(e) Within 18 months of the promulgation of final
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GUIDELINES AND REPORTS 433
regulations under this Act, each State shall submit to
the Administrator evidence, in such form as he shall
require, that the State has established a State program
which meets the requirement of the guidelines of
paragraph (a)(3) of this Section. If a State fails to
submit such evidence, in whole or in part, the
Administrator shall publish notice of such failure in
the Federal Register and provide such further notifi-
cation, in such form as he consider appropriate, to
inform the public in such State of such failure.
Sec. 5. FEDERAL REGULATION
(a) Within 18 months after the date of enactment
of this Act and from time to time thereafter, the
Administrator after consultation with representatives
of appropriate Federal agencies may with respect to
those hazardous wastes identified pursuant to sub-
section (a) (1) of Section 4 determine in regulations
those of such wastes which because of their quantity
of concentration, or because of their chemical
characteristics, could if allowed to be dispersed into
the environment result in, or contribute to, the loss
of human life or substantial damage to human health
or to other living organisms.
(b) The Administrator may promulgate regulations
establishing Federal standards and procedures for the
treatment and disposal of such wastes. Such Federal
standards and procedures shall be designed to prevent
damage to human health or living organisms from
exposure to such wastes identified pursuant to sub-
section (a) and may include
(1) with respect to hazardous waste disposal
sites
(A) minimum requirements as to the
characteristics and conditions of such
sites,
(B) minimum standards of performance
for the operation and maintenance of such
sites, and
(C) recommendations as to specific
design and construction criteria for such
sites; and
(2) with respect to hazardous waste treatment
facilities
(A) -ninimum standards of performance
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for the operation and maintenance, and
(B) recommendations based on available
technology as to appropriate methods,
techniques, or practices for the treatment
of specific wastes.
(c) The Administrator may issue a permit for the
operation of a hazardous waste disposal site or treat-
ment facility if, after a review of the design,
construction, and proposed operation of such site or
facility, he determines that such operation will meet
the requirements and standards promulgated pursuant to
subsection (b).
(d) Within 18 months after the date of enactment
of this Act, the Administrator shall promulgate
regulations establishing requirements for generators
of hazardous wastes subject to regulation under this
section to—
(1) Maintain records indicating the quantities
of hazardous waste generated and the disposition
thereof;
(2) Package hazardous waste in such a manner
so as to protect human health and other living
organisms, and label such packaging so as to
identify accurately such wastes.
(3) Treat or dispose of all hazardous waste
at a hazardous waste disposal site or treatment
facility for which a permit has been issued under
this Act.
(4) Handle and store all hazardous waste in
such a manner so as not to pose a threat to human
health or other living organisms.
(5) Submit reports to the Administrator, at
such times as the Administrator deems necessary,
setting out
(A) the quantities of hazardous waste
subject to Federal regulation under this
subsection that he has generated;
(B) the nature and quantity of any
other waste which he has generated which he
has reason to believe may have a substantial
adverse effect on human health and other
living organisms? and
(C) the disposition of all waste
included in categories (A) and (B).
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(e) The Administrator may prescribe regulationsx
requiring any person who stores, treats, disposes of,
or otherwise handles hazardous wastes subject to regula-
tion under this section to maintain such records with
respect to their operations as the Administrator
determines are necessary for the effective enforcement
of this Act.
(f) The Administrator is authorized to enter into
cooperative agreements with States to delegate to any
State which meets such minimum requirements as the
Administrator may establish by regulation the authority
to enforce this section against any person.
Sec. 6. FEDERAL ENFORCEMENT
(a) Whenever on the basis of any information the
Administrator determines that any person is in
violation of requirements under Section 5 or of any
standard under Section 4(a) (2) under this Act, the
Administrator may give notice to the violator of his
failure to comply with such requirements or may request
the Attorney General to commence a civil action in the
appropriate United States District Court for appropriate
relief, including temporary or permanent injunctive
relief. If such violation extends beyond the thirtieth
day after the Administrator's notification the
Administrator may issue an order requiring compliance
within a specified time period or the Administrator
may request the Attorney General to commence a civil
action in the United States District Court in the
District in which the violation occurred for appropriate
relief, including a temporary or permanent injunction.
Provided that, in the case of a violation of any
standard under section 4(a)(2) where such violation
occurs in a State which has submitted the evidence
required under Section 4(e), the Administrator shall
give notice to the State in which such violation has
occurred 30 days prior to issuing an order or re-
questing the Attorney General to commence a civil
action. If such violator fails to take corrective
action within the time specified in the order, he shall
be liable for a civil penalty of not more than $25,000
for each day of continued non-compliance. The
Administrator may suspend or revoke any permit issued
to the violator.
(b) Any order or any suspension or revocation of
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a permit shall become final unless, no later than 30
days after the order or notice of the suspension or
revocation is served, the person or persons named
therein request a public hearing. Upon such request the
Administrator shall promptly conduct a public hearing.
In connection with any proceeding under this Section
the Administrator may issue subpoenas for the
attendance and testimony of witnesses and the production
of relevant papers, books, and documents, and may
promulgate rules for discovery procedures.
(c) Any order issued under this Section shall state
with reasonable specificity the nature of the violation
and specify a time for compliance and assess a penalty,
if any, which the Administrator determines is a reason-
able period and penalty taking into account the serious-
ness of the violation and any good faith efforts to
comply with the applicable requirements.
(d) Any person who knowingly violates any require-
ment of this Act or commits any prohibited act shall,
upon conviction, be subject to a fine of not more than
$25,000 for each day of violation, or to imprisonment
not to exceed one year, or both.
Sec. 7. RESEARCH, DEVELOPMENT, INVESTIGATIONS,
TECHNICAL ASSISTANCE AND OTHER ACTIVITIES
(a) The Administrator shall conduct, encourage,
cooperate with, and render financial and other
assistance to appropriate public (whether Federal, State,
interstate, or local) authorities, agencies, and
institutions, private agencies and institutions, and
individuals in the conduct of, and promote the
coordination of, research, development, investigations,
experiments, surveys, and studies relating to—
(1) any adverse health and welfare effects on
the release into the environment of material
present in waste, and methods to eliminate such
effects;
(2) the operation or financing of waste
management programs;
(3) the development and application of new
and improved methods of collecting and disposing
of waste and processing and recovering materials
and energy from wastes; and
(4) the reduction of waste generation and
the recovery of secondary materials and energy
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from solid, liquid, and semi-solid wastes.
(b) In carrying out the provisions of the preceding
subsection, the Administrator is authorized to—
(1) collect and make available, through
publication and other appropriate means, the results
of, and other information pertaining to, such
research and other activities, including appropriate
recommendations in connection therewith;
(2) cooperate with public and private agencies,
institutions, and organizations, and with any
industries involved, in the preparation and the
conduct of such research and other activities;
and
(3) make grants-in-aid to and contract with
public or private agencies and institutions and
individuals for research, surveys, developments,
and public education. Contracts may be entered
into without regard to sections 3648 and 3709 of
the Revised Statutes (31 U.S.C. 529; 41 U.S.C.
5) .
(c) The Interstate Commerce Commission, the Federal
Maritime Commission, and the Office of Oil and Gas in
the Department of the Interior, in consultation with
the Environmental Protection Agency and with other
Federal agencies as appropriate, shall conduct within
twelve months of the date of enactment of this Act and
submit to Congress, a thorough and complete study of
rate setting practices with regard to the carriage of
secondary materials by rail and ocean carriers. Such
study shall include a comparison of such practices with
rate setting practices with regard to other materials
and shall examine the extent to which, if at all, there
is discrimination against secondary materials.
Sec. 8. INSPECTIONS
(a) For the purpose of developing or assisting in
the development of any regulation or enforcing the
provisions of this Act, any person who stores, treats,
transports, disposes of, or otherwise handles hazardous
wastes shall, upon request of any officer or employee
of the Environmental Protection Agency or of any State
or political subdivision, duly designated by the
Administrator, furnish or permit such person at all
reasonable times to have access to, and to copy all
records relating to such wastes.
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(b) For the purposes of developing or assisting
in the development of any regulation or enforcing the
provisions o£ this Act, officers or employees duly
designated by the Administrator are authorized -
(1) to enter at reasonable times, any
establishment or other place maintained by any
person where hazardous wastes are stored, treated,
or disposed of;
(2) to inspect and obtain samples from any
person of any such wastes and samples of any con-
tainers or labeling for such wastes. Before under-
taking such inspection, the officers or employees
must present to the owner, operator, or agent in
charge of the establishment or other place where
hazardous wastes are stored, treated, or disposed
of appropriate credentials and a written state-
ment as to the reason for the inspection. Each
such inspection shall be commenced and completed
with reasonable promptness. If the officer or
employee obtains any samples, prior to leaving
the premises, he shall give to the owner, operator,
or agent in charge a receipt describing the
sample obtained and if requested a portion of each
such sample equal in volume or weight to the
portion retained. If an analysis is made of such
samples, a copy of the results of such analysis
shall "be furnished promptly to the owner, operator,
or agent in charge.
(c) Any records, reports, or information obtained
from any person under this subsection shall be available
to the public, except that upon a showing satisfactory
to the Administrator by any person that records, reports,
or information, or particular part thereof, to which
the Administrator has access under this section if made
public, would divulge information entitled to protection
under section 1905 of Title 18 of the United States
Code, the Administrator shall consider such information
or particular portion thereof confidential in accordance
within the purposes of that section.
Sec. 9. ENCOURAGEMENT OF INTERSTATE AND INTERLOCAL
COOPERATION
The Administrator shall encourage cooperative
activities by the States and local governments in
connection with waste disposal programs, encourage,
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where practicable, interstate, interlocal, and regional
planning for, and the conduct of, interstate, interlocal,
and regional hazardous waste disposal programs; and
encourage the enactment of improved and, so far as
practicable, uniform State and local laws governing
waste disposal.
Sec. 10. IMMINENT HAZARD
(a) An imminent hazard shall be considered to exist
when the Administrator has reason to believe that
handling or storage of a hazardous waste presents an
imminent and substantial danger to human health or other
living organisms the continued operation of a disposal
site will result in such danger when a State or local
authority has not acted to eliminate such risk.
(b) If an imminent hazard exists, the Administrator
may request the Attorney General to petition the
district court of the United States in the district
where such hazard exists, to order any disposal site
operator or other person having custody of such waste
to take such action as is necessary to eliminate the
imminent hazard, including, but not limited to,
permanent or temporary cessation of operation of a
disposal site, or such other remedial measures as the
court deems appropriate.
Sec. 11. PROHIBITED ACTS
The following acts and the causing thereof are
prohibited and shall be subject to enforcement in accord-
ance with the provisions of subsection 6(d) of this
Act—
(a) Operating any disposal site for hazardous
waste identified pursuant to Section 5 without having
obtained an operating permit pursuant to such Section.
(b) Disposing of hazardous waste
identified pursuant to Section 5 in a manner not in
compliance with requirements under Section 5.
(c) Failure to comply with the requirements of
Section 5 in labeling containers used for the storage,
transport, or disposal of hazardous waste.
(d) Failure to comply with (1) the conditions of
any Federal permit issued under this Act, (2) any
regulation promulgated by the Administrator pursuant
to Section 4 (a) (2) or Section 5 of this Act, or (3) any
order issued by the Administrator pursuant to this Act.
Sec. 12. APPLICATION OF STANDARDS TO FEDERAL AGENCIES
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(a) Each department, agency, and instrumentality
of the Executive, Legislative, and Judicial Branches of
the Federal Government having jurisdiction over any
property or facility, or engaged in any activity which
generates, or which may generate, wastes shall insure
compliance with such standards pursuant to subsections
4(a)(2), 5(a), and 5(c) as may be established by the
Administrator for the treatment and disposal of such
wastes.
(b) The President or his designee may exempt any
facility or activity of any department, agency, or
instrumentality in the Executive Branch from compliance
with guidelines established under section 4 if he deter-
mines it to be in the paramount interest of the United
States to do so. Any exemption shall be for a period
not in excess of one year, but additional exemptions
may be granted for periods of not to exceed one year
upon the President's or his designee's making of a new
determination. The Administrator shall ascertain the
exemptions granted under this subsection and shall
report each January to the Congress all exemptions from
the requirements of this section granted during the
preceding calendar year.
(c) Within 18 months after enactment of this Act
and from time to time thereafter, the Administrator, in
consultation with other appropriate Federal agencies,
shall identify products which can utilize significant
quantities of secondary materials and shall issue
guidelines with respect to the inclusion of such
secondary materials to the maximum extent practicable
in products procured by the Federal government.
(d) In any proceeding initiated before the Inter-
state Commerce Commission or the Federal Maritime
Commission after the enactment of this Act where a
determination is made by such Commission as to any
individual or joint rate, fare, or charge whatsoever
demanded, charged, or collected by any common carrier
or carriers, a specific finding by the Commission will
be required that such rate, fare or charge does not or
will not cause discrimination against secondary
materials.
Sec. 13. CITIZEN SUITS
(a) Except as provided in subsection (b) any
person may commence a civil action for injunctive relief
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on his own behalf—
(1) against any person who is alleged to be
in violation of any regulation promulgated or
order issued under this Act;
(2) against the Administrator where there is
alleged a failure of the Administrator to perform
any act or duty under this Act which is not discre-
tionary with the Administrator.
Any action under paragraph (a)(1) of this sub-
section shall be brought in the district court for the
district in which the alleged violation occurred and
any action brought under paragraph (a)(2) of this sub-
section shall be brought in the district court of the
District of Columbia. The district courts shall have
jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to
enforce such regulation or order, or to order the
Administrator to perform such act or duty as the case
may be.
(b) No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to sixty days after the
plaintiff has given notice of the violation
(i) to the Administrator, (ii) to the State
in which the alleged violation occurs, and
(iii) to any alleged violator of the standard,
limitation, or order, or
(B) if the Administrator or State has
caused to be commenced and is diligently
prosecuting a civil or criminal action in a
court of the United States or a State to
require compliance with requirements of this
Act or order issued hereunder;
(2) under subsection (a)(2) prior to sixty
days after plaintiff has given notice of such action
to the Administrator.
Notice under this subsection shall be given in such
manner as the Administrator shall prescribe by regula-
tion.
(3) In such action under this section, if the
United States is not a party, the Attorney General
may intervene as a matter of right.
(d) The court, in issuing any final order in any
action brought pursuant to this section, may award
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costs of litigation (including reasonable attorney and
expert witness fees) to any party, whenever the court
determines such award is appropriate.
(e) Nothing in this section shall restrict any
right which any person (or class of persons) may have
under any statute or common law to seek enforcement of
any regulation or to seek any other relief (including
relief against the Administrator or a State agency).
Sec. 14. STATE AUTHORITY
(a) If the Administrator has promulgated regula-
tions under Section 5 no State or municipality may
without the approval of the Administrator impose more
stringent requirements than those imposed under the
provisions of Section 5 on the transport, treatment,
or disposal of hazardous wastes.
(b) No State or municipality shall impose, on
wastes originating in other States or municipalities,
requirements respecting the transport of such wastes
into or disposal within its jurisdiction which are more
stringent than those requirements applicable to wastes
originating within such receiving States and municipal-
ities.
Sec. 15. AUTHORIZATION AND APPROPRIATION
There is hereby authorized to be appropriated to
the Environmental Protection Agency such sums as may
be necessary for the purposes and administration of
this Act.
Sec. 16. JUDICIAL REVIEW
(a) A petition for review of action of the Adminis-
trator in promulgating any regulation pursuant to
Sections 4 or 5 shall be filed in the United States
Court of Appeals for the District of Columbia. Any
person who will be adversely affected by a final order
or other final determination issued under Section 6 may
file a petition with the United States Court of Appeals
for the circuit wherein such person resides or has
his principal place of business, for a judicial review
of such order or determination. Any such petition
shall be filed within 30 days from the date of such
action or order, or after such date if such petition
is based solely on grounds arising after such 30th day.
(b) Action of the Administrator with respect to
which review could have been obtained under subsection
(a) shall not be subject to judicial review in civil
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GUIDELINES AND REPORTS 443
or criminal proceedings for enforcement.
(c) In any judicial proceeding in which review is
sought of an action under this Act required to be made
on the record after notice and opportunity for hearing,
if any party applies to the court for leave to adduce
additional evidence, and shows to the satisfaction of
the court that such additional evidence is material and
that there were reasonable grounds for the failure to
adduce such evidence in the proceedings before the
Administrator, the court may order such additional
evidence (and evidence in rebuttal thereof) to be taken
before the Administrator, in such manner and upon such
terms and conditions as the court may deem proper.
The Administrator may modify his findings as to the
facts, or make new findings, by reason of the additional
evidence so taken and he shall file such modified or
new findings, and his recommendation, if any, for the
modification or setting aside of his original deter-
mination, with the return of such additional evidence.
Sec. 17. RELATIONSHIP TO OTHER LAWS
(a) This Act shall not apply to—
(1) Any source material, special nuclear
material, or byproduct material subject to
regulation or control pursuant to the Atomic
Energy Act of 1954, as amended;
(2) lethal chemicals subject to regulation
pursuant to 50 U.S.C. 1511, et seq., as amended.
(b) This Act shall not be construed to relieve any
person from any present or future requirement arising
from any other Federal law.
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SECTION-BY-SECTION ANALYSIS
Waste Management Act of 1973
Section 1 — short title. The proposal is intended to
replace the Toxic Waste Disposal Control Act proposed
by the President in his 1972 Environmental Program and
is intended to supercede the Solid Waste Disposal Act,
as amended.
Section 2 — Findings and Purpose — Congressional
findings and public policy reasons for this Bill. The
emphasis is on the protection of the public and other
living organisms through State regulation of the treat-
ment and disposal of hazardous wastes in general,
through Federal regulation of the most hazardous forms
of waste, and through research, development and similar
activities relating to the health and other effects of
hazardous waste.
Section 3 — Definitions — Defines various terms used
in the bill.
Section 4 — Standards and Guidelines for State
Regulation — This Section establishes a mechanism
whereby the States are basically responsible for the
regulation of hazardous wastes. The Administrator will
identify hazardous wastes, establish standards for
treatment and disposal of such wastes and establish
guidelines for State programs for implementing the
standards. It is anticipated that the wastes identified
by the Administrator for regulation will be materials
that are (1) toxic or poisonous, (2) corrosive,
(3) irritating or sensitizing, (4) radioactive,
(5) pathological, (6) explosive, or (7) flammable.
Within 18 months of the promulgation of these standards
and guidelines States are to submit evidence to the
Administrator that they have established a State
program which meets the requirement of the guidelines
and are in a position to enforce the standards the
Administrator has established. If the State fails to
submit such evidence, the Administrator shall publish
notice of such failure in the Federal Register and also
shall provide notice of the failure to the public.
Section 5 — Federal Regulation — Authorizes Federal
regulation of certain particularly hazardous substances.
Federal regulations will be promulgated to regulate
both disposal sites and generators of such wastes. The
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GUIDELINES AND REPORTS 445
regulations shall provide for issuance of permits for
operation of waste disposal sites for these substances
and for standards dealing with the construction and
operation of such sites. Generators of hazardous
wastes would "be required to maintain records, package
and label hazardous wastes in such a manner as to
protect human health and other living organisms, submit
certain reports to the Administrator, insure that
hazardous wastes are either disposed of on-site in
accordance with Federal standards or transferred to a
disposal facility having a permit, and insure that
hazardous wastes are held and stored in such a manner
as not to pose a threat to human health or other living
organisms.
Section 6 — Federal Enforcement — In the case of a
violation of any requirement pertaining to hazardous
wastes subject to Federal regulation under the previous
section, the Administrator is authorized by this
Section to either give notice to the violator of his
failure to comply or else request the Attorney General
to commence immediately a civil action. If notification
is given, and the violation extends beyond the thirtieth
day after such notification, the Administrator may issue
an order requiring compliance or may at that point
request the Attorney General to commence an action.
The Administrator is also given the same authority
to proceed against violators of the standards of Section
4, provided he gives 30 days notice to the State if
the State is one that has submitted evidence of having
a regulatory program.
Section 7 — Research, Development, Investigations,
Technical Assistance of Activities — The Administrator
is authorized to himself conduct, or to assist others
to conduct, research and development, surveys and
studies, and experiments relating to adverse efffects on
health and welfare of waste materials, operating and
financing of waste management programs, production of
waste generation and the recovery of secondary materials
and energy from wastes, and development and application
of new improved methods of collecting and disposing of
wastes. The Administrator is authorized to carry out
these provisions by collecting and making available
information, cooperating with various agencies in the
conduct of such research and other activities, and
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making grants to and contracting with various entities
for such research and development. The Section also
mandates the Interstate Commerce Commission, the
Federal Maritime Commission, and the Office of Oil and
Gas to do a study of rate-setting practices with regard
to the carriage of secondary materials.
Section 8 — Inspections — Any person who stores,
treats, transports, disposes of, or otherwise handles
hazardous wastes has to make records relating to such
wastes available to the Administrator or the State.
The Administrator's designates are authorized to enter
and to inspect establishment or places where hazardous
wastes are stored, and to obtain samples of wastes,
such activities to be conducted at reasonable times and
to be concluded and treated with reasonable promptness.
Protection of confidential information is provided for
the persons subject to this section.
Section 9 — Encouragement of Interstate and Interlocal
Cooperation — Requires the Administrator to encourage
cooperate activities by the State and local governemnts
in connection with waste disposal programs.
Section 10 — Imminent Hazards — If an imminent hazard
exists so that handling or storage of a hazardous
•waste or the continued operation of the disposal site
will result in imminent and substantial danger to human
health, the Administrator may request the Attorney
General to take appropriate legal action to eliminate
the hazard.
Section 11 — Prohibited Acts — Certain acts or the
causing thereof are prohibited, specifically — operating
a disposal site subject to Federal regulation without
having obtained the appropriate operating permit,
disposing of hazardous wastes subject to Federal regula-
tions in a manner not in compliance with the Federal
requirements established under Section 5, failure to
comply with the requirements of section 5 in labeling
containers, and failure to comply with conditions of a
Federal permit, with any regulations promulgated by the
Administrator or with an order issued by him.
Section 12 — Guidelines for Federal Agencies — The
Administrator shall identify products which can utilize
significant quantities of secondary materials and
issue guidelines with respect to inclusion of such
materials in products procured by the Federal govern-
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GUIDELINES AND REPORTS 447
ment. Federal agencies shall be retired to be in
compliance with standards and guidelines established
by the Administrator for the treatment and disposal of
wastes. The section also provides that in Interstate
Commerce Commission and the Federal Maritime pro-
ceedings relating to fares or rates to be charged by
any common carrier, a finding must be made that such
rate or fare does not cause discrimination against
secondary materials.
Section 13 -- Citizen Suits — Any person may commence
a civil action against any person who is in violation
of the Act or against the Administrator if he fails to
perform a non-discretionary action.
Section 14 -- State Authority — No State may impose
more stringent requirements than those imposed by the
Administrator under the Federal regulatory program on
the transport treatment of disposal of hazardous wastes.
No State or municipality may impose "non-importation"
laws.
Section 15 — Authorizations and Appropriations — Such
sums as may be necessary for the purposes and adminis-
tration of this Act are authorized to be appropriated.
Section 16 — Judicial Review — Petition for review of
the actions of the Administrator in promulgating
regulations is to be filed in the United States Court
of Appeals for the District of Columbia and any person
who will be adversely affected by a final order under
Section 6 may file a petition for judicial review and
the United states Court of Appeals where such person
resides or has principal place of business. Such
petitions must be filed within 30 days from the date
of the action in the order.
Section 17 — Relationship to Other Laws — The Act
does not apply to nuclear material subject to
regulation under the Atomic Energy Act or to certain
lethal chemicals regulated under other law. The Act
would not relieve persons from compliance with any
other Federal law.
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GUIDELINES AND REPORTS 449
Controlling Pollution
Safe
Drinking Water
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GUIDELINES AND REPORTS 451
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
February 27, 1973
OFTICE OF THE
ADMINISTRATOR
Honorable Spiro T. Agnew
President of the Senate
Washington, D. C. 20510
Honorable Carl Albert
Speaker of the House of Representatives
Washington, D. C. 20515
Dear Mr. [President/Speaker]:
I am pleased to transmit a proposed bill, "The Safe
Drinking Water Act of 1973," which is designed "to assure
that the public is provided with safe drinking water,
and for other purposes. "
The proposed bill is forwarded in accordance with
the Environmental and Natural Resources State of the
Union Message of the President.
The Safe Drinking Water Act of 1973 would provide an
effective solution to the problem associated with
providing safe drinking water for the public. The
legislation would insure that adequate standards are
developed, require that citizens receive prompt notifi-
cation if their drinking water fails to meet health
standards, and provide that primary enforcement, report-
ing, and monitoring authorities will rest with State and
local governments where they properly belong. The
proposal is essentially a preventive measure intended to
assure safe drinking water now and for the future.
Under the proposed bill, the Administrator of the
Environmental Protection Agency would establish national
mandatory drinking water standards, designed to protect
the public health. Recommendatory standards relating to
non-health characteristics of drinking water would also
be issued. States would have responsibility for
implementing and assuring compliance with the mandatory
national standards. In the event of non-compliance,
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the supplier of water would be obliged to notify users,
the State, and EPA. We believe that the public aware-
ness to be achieved through the notification requirement
will best assure continuing safe drinking water to the
Nation. Additional assurance of compliance would be
achieved through a citizen suit provision. Direct
Federal enforcement would be available in the event of
an imminent health hazard. Research and studies
addressed to drinking water supply problems would also
be provided.
We recommend that the bill be referred to the
appropriate Committee for consideration and that it be
enacted.
The Office of Management and Budget has advised
that the enactment of this proposed legislation would
be in accord with the program of the President.
Sincerely yours.
/s/ William D. Ruckelshaus
Administrator
Enclosure
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GUIDELINES AND REPORTS 453
H.R. 5368
A BILL
To assure that the public is provided with safe
drinking water, and for other purposes.
Be it enacted by the Senate and House of Represen-
tatives of the United States of America in Congress
assembled. That this Act may be cited as the "Safe
Drinking Water Act of 1973."
DECLARATION OF POLICY
Sec. 2. (a) The Congress finds—
(1) that potentially hazardous drinking water
directly or indirectly affecting interstate commerce is
reaching many consumers due to inadequate treatment and
distribution facilities, inadequate monitoring and
surveillance, and a lack of sufficient information and
technology to adequately treat raw water to assure its
potability.
(2) that the public should be provided with water
that is safe for drinking and other human uses;
(3) that the public should receive prompt and
accurate notification if its water is not safe for
drinking and other human uses;
(4) that the primary responsibility and enforcement
authority for ensuring the quality of public water
supplies has rested and should continue to rest with
State and local Governments;
(5) that the Federal Government has the responsi-
bility for establishing minimum national primary drink-
ing water standards and for recommending national
secondary drinking water standards for all public water
systems, and for supplying where appropriate technical
assistance, research and development information,
monitoring, and testing information.
DEFINITIONS
Sec. 3. As used in this Act—
(1) The term "Administrator" means the Administra-
tor of the Environmental Protection Agency.
(2) The term "Agency" means the Environmental
Protection Agency.
(3) The term "State" means a State, the District of
Columbia, the Commonwealth of Puerto Rico.
(4) The term "municipality" means a city, town,
borough, county, parrish, district, or other public body
created by or pursuant to State law and having
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jurisdiction over the supply of water to the public, and
an Indian tribe or an authorized Indian tribal
organization.
(5) The term "person" includes a State or political
subdivision thereof, municipality, corporation, partner-
ship, association, private or public nonprofit institu-
tions, or an individual.
(6) The term "public water system" means—
(A) any system which provides drinking water,
(i) to ten or more premises not owned or con-
trolled by the supplier of water or (ii) to
forty or more individuals receiving such
drinking water from a system.
(B) any system which provides drinking water to
carriers, or facilities or establishments
serving travelers in interstate commerce.
The term "public water system" does not include
relocatable systems set up during disasters or
emergencies or used in military field operations.
(7) The term "supplier of water" means any person
who controls, owns or operates a public water system.
(8) The term "contaminant" means any physical,
chemical, biological, radiological, or other substance
or matter which causes or transmits infectious disease,
chemical poisoning, chronic disease, or other impairment
to man.
(9) The term "allowable limit - health" means that
water, delivered to any user of the public water system,
containing substances above these limits presents a
substantial risk to the health of humans and shall not
normally be used for drinking or culinary purposes.
(10) The term "recommended limit - aesthetic" means
that water delivered to any user of the public water
supply system, containing substances above these limits
may be objectionable to an appreciable number of persons
but is not hazardous to health.
NATIONAL DRINKING WATER STANDARDS
Sec. 4. (a) The Administrator, after consultation
with the Secretary of Health, Education, and Welfare,
(A) shall promulgate national primary drinking water
standards as soon as practicable after the date of
enactment of this Act and (B) may issue recommended
national secondary drinking water standards for adoption
and enforcement by State and local governments at their
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GUIDELINES AND REPORTS 455
option. The Administrator shall specify in such regu-
lations for national primary drinking water standards
the date on which such regulations shall take effect,
which shall be as soon as is practicable. The Adminis-
trator shall from time to time, revise such standards as
appropriate.
(b)(1) National primary drinking water standards
shall be standards, the attainment and maintenance of
which are requisite to reasonably protect the public
health, except that the Administrator shall not pre-
scribe the addition of any substance other than for the
purpose of treating contaminants. Such standards--
(A) shall prescribe the allowable limits -
health for any contaminants which may exist in
any public water system in the United States
which may cause or transmit disease, chemical
poisoning, or other impairments to man, allowing
adequate margins of safety, and
(B) shall include standards for the adequate
monitoring and reporting of water quality.
(2) Recommended national secondary drinking water
standards, as described under subsection (a) of this
section, shall specify the level of quality of drinking
water the attainment and maintenance of which is requi-
site to reasonably assure aesthetically adequate
drinking water. Such recommended standards may apply to
any constituent of drinking water (A) which may affect
the taste, odor, or appearance of such water, or (B)
which may otherwise be necessary to assure aesthetically
adequate drinking water. These standards shall be
designated as recommended limits - aesthetic.
(3) In establishing or revising standards or
publishing recommended standards under this section, the
Administrator shall take into consideration (A) the
views and recommendations of recognized experts in the
field of water supply engineering and public health and
(B) the economic and social costs and benefits of such
standards and their alternatives.
(c) The Administrator shall publish simultaneously
with the issuance of any proposed national primary or
recommended national secondary drinking water standard
under this section—
(1) Such criteria and information as, in his
judgment, are necessary to accurately reflect the nature
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and extent of identifiable effects on public health or
welfare which may be expected from the presence of the
contaminant which is the object of such proposed
drinking water standards.
(2) Information and data on drinking water treat-
ment methods and technology for the control of the
contaminant which is the object of such proposed
drinking water standard. Such information and data
shall apply to features of the water supply system at
which control of the contaminant may be exercised
including, but not limited to, treatment, storage, and
distribution facilities and the adequate construction,
maintenance, and operation thereof. Such information
and data shall include where available the costs and the
effectiveness of such treatment and the time period
necessary to control such contaminant.
(d) the Administrator shall, at least every 3 years
review the adequacy of any national primary or
recommended national secondary drinking water standard
under subsection (a) of this section and the criteria,
information, and data published under subsection (c) of
this section. The Administrator shall publish his
findings in the Federal Register.
ENFORCEMENT OF STANDARDS
Sec. 5. (a) For the purposes of this Act, the States
have primary enforcement responsibility except for
Federal facilities which will comply with section 15 (a).
The Administrator shall monitor the activities of the
States and public water systems only to the extent
necessary to determine if States are establishing and
maintaining an adequate program to enforce the national
primary drinking water standards.
(b) Whenever the water delivered by a water supply
system is not in compliance with national primary
drinking water standards, the supplier of such water
shall notify its users, appropriate State agencies, and
through the State, the Administrator, in accordance with
regulations promulgated by the Administrator, of the
noncompiiance and the extent and nature and possible
health effects of such non-compliance. Notification
received pursuant to this subsection or information
obtained by the exploitation of such notification shall
not be used against any such person in any criminal
case, except a prosecution for perjury or for giving a
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GUIDELINES AND REPORTS 457
false statement.
(c) Whenever, on the basis of information available
to him, the Administrator finds that any public water
system does not comply with any national primary drink-
ing water standard and that necessary remedial action is
not being taken, he shall so notify the State in which
such water system is operating.
IMMINENT HAZARDS
Sec. 6. (a) An imminent hazard shall be considered
to exist when there is reason to believe that a
violation of the national primary drinking water
standards by a public water system or any other
condition will result in a serious risk to public
health.
(b) If he determines that an imminent hazard
exists, the Administrator may request the Attorney
General to petition an appropriate district court of the
United States to order such action as is necessary to
eliminate the imminent hazard. The Administrator shall
simultaneously, if he has not previously done so, pro-
pose any regulation which might be necessary under
section 4 of this Act, or he may commence an action
under section 13 of this Act.
RESEARCH, TECHNICAL ASSISTANCE, INFORMATION
Sec. 7.(a) The Administrator shall conduct research,
studies, and investigations and render financial,
technical, and other assistance to appropriate public
agencies, institutions, water supply utilities, and
individuals in the conduct of research, studies, and
investigations relating to the causes, diagnosis, treat-
ment, control, and prevention of diseases and impair-
ments of man resulting directly or indirectly from
contaminants in drinking water. Such research, studies,
or investigations may include, but shall not be limited
to, the development of —
(1) new and improved methods to identify and
measure the existence of contaminants in drinking water
and to identify the source of such contaminants;
(2) new and improved methods to identify and
measure the health effects of contaminants in drinking
water;
(3) new and improved methods of treating water to
prepare it for drinking, to improve the efficiency of
water treatment and to remove contaminants from the
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water; and
(4) new and improved methods for providing safe
water for drinking to the public, including improve-
ments in water purification and distribution, and
methods of assessing the health-related hazards to other
characteristics of drinking water supplies, and studies
of the health implications of the reclamation, reuse,
and recycling including both indirect and direct reuse
of waste waters as sources of public water supplies.
(b) In carrying out this Act, the Administrator is
authorized to —
(1) collect and make available information per-
taining to research and investigations, with respect to
providing adequate quality and quantity of safe drinking
water together with appropriate recommendations in
connection therewith; and
(2) make available research facilities of the
Agency to appropriate public agencies, institutions,
water supply utilities, and individuals engaged in
studies and research relating to water supply.
STATE WATER SUPPLY PROGRAM PLANS
Sec. 8.(a) Each State shall file an annual State
Program Plan with EPA defining the methods and resources
to be applied in establishing and maintaining adequate
programs to enforce the national primary drinking water
standard for each type of public water system as defined
in section 3(6) beginning one year from enactment.
(b) Such State plan shall be satisfactory if it—
(1) provides for the adoption by the State of
the national drinking water standards or standards
which are no less stringent than the national primary
drinking water standards;
(2) provides for the adoption by the State of
appropriate regulations and procedures for the imple-
mentation and enforcement of the standards adopted
pursuant to paragraph (1) of this subsection;
(3) provides for the enforcement of the
standards violation notification procedures under
section 5(b) of this Act;
(4) provides for administration or for the
supervision of administration of the plan by the State
agency charged with the responsibility for the safety of
drinking water;
(5) sets forth the plans, policies, and
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GUIDELINES AND REPORTS 459
procedures to be followed in carrying out the State
plan;
(6) provides for such accounting, budgeting,
and other fiscal methods and procedures as are necessary
for the proper and efficient administration of the plan;
(7) provides for the establishment of an
emergency plan of action for each public water system
within the State for use in case of an emergency
affecting the safety of the treated drinking water or
the effective operation of the treatment facility,
including provision for emergency reserves or alternate
sources of water suitable for drinking and culinary
purposes.
REGULATIONS, PROCEDURE, AND JUDICIAL REVIEW
Sec. 9.(a) At his own initiative, or upon the
petition of any person, the Administrator is authorized
to issue regulations to carry out the purposes of this
Act and to amend or rescind such regulations at any
time.
(b) The Administrator shall publish any regulations
proposed under this Act, or proposals to amend or
rescind such regulations, and his justification therefor
in the Federal Register at least sixty days prior to the
time when such regulations shall become final. The
Administrator shall also publish in the Federal Register
a notice of all petitions received under subsection (a)
and, if such petition is denied, his reasons therefor.
Such notice shall identify the purpose of the petition
and include a statement of the availability of any data
submitted in support of such petition. If any person
directly and adversely affected by a proposed regulation
files objections and requests a public hearing within
forty-five days of the date of publication of the pro-
posed regulation, the Administrator shall grant such
request. If such public hearing is held, final
regulations shall not be promulgated by the Administra-
tor until after the conclusion of such hearing. All
public hearings authorized by this subsection shall
consist of the oral and written presentation of data,
views, or arguments in accordance with such conditions
or limitations as the Administrator may make applicable
thereto.
(c) Proposed and final regulations issued under
this Act shall set forth findings of fact on which the
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regulations are based and the relationship of such
findings to the regulations issued.
(d) Any judicial review of final regulations
promulgated under this Act shall be in accordance with
section 701-706 of title 5, United States Code, except
that, with respect to relief pending review, no stay of
an agency action may be granted unless the reviewing
court determines that the party seeking such stay (a)
is likely to prevail on the merits in the review
proceeding and (b) will suffer irreparable harm pending
such proceeding.
(e) Except as expressly modified by the provisions
of this section, the provisions of 5 U.S.C. 551 et seq.
shall apply to proceedings conducted by the Adminis-
trator under this Act.
(f) If the party seeking judicial review applies
to the court for leave to adduce additional evidence,
and shows to the satisfaction of the court either (1)
that the information is material and was not available
at the time of the proceeding before the Administrator
or (2) that failure to include such evidence in the
proceeding was an arbitrary or capricious act of the
Administrator, the court may order such additional
evidence (and evidence in rebuttal thereof) to be taken
before the Administrator, and to be adduced upon the
hearing, in such manner and upon such terms and
conditions as to the court may deem proper. The
Administrator may modify his findings as to the facts,
or make new findings, by reason of the additional
evidence so taken, and he shall file with the court such
modified or new findings, and his recommendations, if
any, for the modification or setting aside of his
original order, with the return of such additional
evidence.
RECORDS AND INSPECTION
Sec. 10. (a) Suppliers of water and others subject
to the requirements of this Act shall submit such
reports and make available such records and information
to the appropriate State agency as necessary for imple-
mentation of a State program required under section 8 of
this Act.
(b) Any officer or employee duly designated by the
Administrator, upon presenting appropriate credentials
and a written notice of inspection authority to any
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GUIDELINES AND REPORTS 461
supplier of water subject to a national primary drinking
water standard prescribed under section 4 of this Act or
any grantee (or person in charge of any of its property]),
is authorized to enter any establishment or facility or
other property of such person in order to determine
whether such supplier or grantee has acted or is acting
in compliance with this Act, including for this purpose,
inspection, at reasonable time, of records, files,
papers, processes, controls and facilities, or in order
to test any feature of a public water system, including
its raw water source. Each inspection shall be
commenced and completed with reasonable promptness and
the supplier or grantee notified of the results of such
inspection.
(c) For purposes of this section, the term
"grantee" means any person who receives financial
assistance under this Act.
STATE REGULATIONS
Sec. 11. Nothing in this Act shall affect the
authority of any State or local government to establish
drinking water standards or to make other requirements
for purposes similar to those contained in this Act,
except that any such standards or requirements shall
not be less stringent than the requirements of the
national primary drinking water standards under this
Act.
PROHIBITED ACTS
Sec. 12. The following acts and the causing thereof
are prohibited:
(1) Failure by a supplier of water to comply with
the requirements of section 5(t>) of this Act, or
dissemination by such supplier of any false or mis-
leading information with respect to remedial actions
being undertaken to achieve compliance with national
primary drinking water standards.
(2) Failure by a supplier of water to comply with
the standards for monitoring and reporting pursuant to
subparagraph (B) of paragraph 4(b)(l) of this Act; or
(3) The refusal to allow entry and inspection of
establishments, facilities, or other property pursuant
to section 10(b) of this Act.
PENALTIES AND REMEDIES
Sec. 13.(a) Any person willfully violating section
12 of this Act shall on conviction be fined not more
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than $15,000 for each violation or imprisoned for not
more than one year, or both.
(b)(1) Any person not willfully violating section
12 of this Act shall be liable to the United States for
a civil penalty of a sum which is not more than $10,000
for each violation, to be assessed by the Administrator
after notice and opportunity for an adjudicative hearing
conducted in accordance with section 554 of title 5,
United States Code, and after he has considered the
nature, circumstances, and extent of such violation, the
difficulties of achieving compliance with the provisions
violated, and any good-faith efforts to comply with such
provisions.
(2) Upon failure of the offending party to pay the
civil penalty, the Administrator may request the
Attorney General commence an action in an appropriate
district court of the United States to secure such
payment.
(c) The Attorney General may bring an action in the
appropriate district court of the United States for
equitable relief to redress a violation by any person of
any provision of section 12 of this Act, and the
district courts of the United States shall have
jurisdiction to grant such relief as the equities of the
case may require.
CITIZEN CIVIL ACTION
Sec. 14.(a) Except as provided in subsection (b) of
this section, any person may commence a civil action for
injunctive relief on his own behalf, whenever such
action constitutes a case or controversy—
(1) against any person (including (i) the United
States, and (ii) any other governmental instrumentality
or agency to the extent permitted by the eleventh
amendment to the Constitution) who is alleged to be in
violation of any national primary drinking water
standard promulgated under section 4 of this Act, or
(2) against the Administrator where there is
alleged a failure of the Administrator to perform any
act or duty under this Act which is not discretionary
with the Administrator. Any action under paragraph
(a)(1) of this subsection shall be brought in the
district court for the district in which the alleged
violation occurred and any action brought under
paragraph (a)(2) of this subsection shall be brought in
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GUIDELINES AND REPORTS 463
the district court of the District of Columbia.
The district courts shall have jurisdiction over
suits brought under this section, without regard to the'
amount in controversy or the citizenship of the parties.
(b) No civil action may be commenced—
(1) under subsection (a)(1) of this section —
(A) prior to sixty days after the plaintiff has
given notice of the violation (i) to the
Administrator, (ii) to any alleged violator of
such standard and (iii) to the State in which
the violation occurs.
(B) if the Attorney General, or the State has
commenced and is diligently prosecuting a civil
action in a court of the United States to re-
quire compliance with such standard.
(2) under subsection (a) (2) of this section prior
to sixty days after the plaintiff has given notice of
such action to the Administrator. Notice under this
subsection shall be given in such manner as the
Administrator shall prescribe by regulation.
(c) In any action under this section to which the
United States is not a party, the Attorney General at
the request of the Administrator may intervene on behalf
of the United States as a matter of right.
(d) The court, in issuing any final order in any
action brought pursuant to subsection (a) of this
section, may award costs of litigation (including
reasonable attorney and expert witness fees) to any
party whenever the court determines such an award is
appropriate.
(e) Nothing in this section shall restrict any
right which any person (or class of persons) may have
under any statute or common law to seek enforcement of
any national primary drinking water standard or to seek
any other relief.
FEDERAL FACILITIES
Sec. 15.(a) Except as provided for in subsection
(b) of this section, each Federal department or agency
having jurisdiction over a federally owned or maintained
public water system, shall comply with all national
primary drinking water standards prescribed under
section 4 of this Act and shall, to the maximum extent
practicable, comply with any recommended national
secondary drinking water standard prescribed under such
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464 LEGAL COMPILATION—SUPPLEMENT n
section. Notification required by section 5(t>) will be
submitted to the Administrator in lieu of the appro-
priate State agency.
(b) The Administrator may waive compliance with
the requirements of subsection (a) of this section, in
whole or in part, upon receiving information from the
Secretary of Defense or from the Secretary of the
Department in which the United States Coast Guard is
operating that such waiver is in the interest of
national security. Upon the issuance of such a waiver,
the Administrator shall publish in the Federal Register
a notice that the waiver was granted for good cause
shown by the Secretary of Defense or by the Secretary of
the Department in which the United States Coast Guard
is operating, in the interest of national security,
unless the Administrator has been requested by the
applicable Secretary to omit such publication because
it would be contrary to the interests of national
security.
AUTHORIZATION FOR APPROPRIATIONS
Sec. 16. There is hereby authorized to be
appropriated such sums as may be necessary to carry out
the provisions of this Act.
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GUIDELINES AND REPORTS 465
Section-by-Section Analysis
Safe Drinking Water Act of 1973
Section 1 of the bill provides that the Act may be cited
as the "Safe Drinking Water Act of 1973."
Section 2 declares the findings of the Congress which
include: potentially hazardous drinking water affect-
ing interstate commerce is reaching many consumers due
to inadequate treatment and distribution facilities,
inadequate monitoring and surveillance, and lack of
sufficient information and technology; the public should
receive prompt notice if the water is not safe; primary
responsibility and enforcement authority should con-
tinue in State and local governments; and the Federal
government should establish health related standards,
recommend aesthetic related standards, and provide
research, technical assistance, and information with
regard to drinking water supplies.
Section 3 contains definitions of terms used in
the bill including "public water systems," "contaminant,"
"allowable limit-health," and "recommended limit-
aesthetic. "
Section 4 provides that the Administrator of the Environ-
mental Protection Agency shall establish national primary
drinking water standards (those related to health) as
soon as practicable, and may issue recommended national
secondary drinking water standards (those related to
aesthetics). In establishing or revising these standards
the Administrator must consider the views of recognized
experts in water supply and public health and consider
the costs and benefits of such standards and their
alternatives, when standards are issued, information
on effects of contaminants, drinking water treatment
and technology, and other information must be published.
Section 5 provides that the States shall have primary
enforcement responsibility with regard to the drinking
water standards except for F.ederal facilities. The
Environmental Protection Agency is required to monitor
the activities of the States and public water supply
systems only to the extent necessary to determine if
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466 LEGAL COMPILATION—SUPPLEMENT n
States are establishing and maintaining an adequate
program to enforce the national primary drinking
water standards.
Section 5 also provides that if the drinking water
is not in compliance with the national primary drinking
water standards, the suppliers of such water must
notify the users, appropriate State agencies, and the
Environmental Protection Agency of the non-compliance
and of the possible health effects of such non-compli-
ance. The notification received or information obtained
by the exploitation of such notification shall not
be used against such person in any criminal case,
except a prosecution for perjury or for giving a false
statement. Section 5 also provides that from any
information available to the Environmental Protection
Agency, if it should find that any public water supply
system does not meet the national primary standards
and necessary remedial action is not being taken, it
must notify the State.
Section 6 provides that if the Administrator of the
Environmental Protection Agency determines that an
imminent hazard exists (a violation of the primary
standards or other condition which would result in a
serious risk to public health) he may institute
enforcement proceedings to eliminate the hazard.
Section 7 provides that the Administrator of the
Environmental Protection Agency shall conduct research,
studies, and investigations and render financial,
technical, and other assistance to appropriate public
agencies, institutions, water supply utilities, and
individuals relating to safe drinking water supplies.
The Administrator is also authorized to make avail-
able information pertaining to research and investi-
gations and to make the Environmental Protection
Agency's research facilities available to appropriate
groups and agencies engaged in studies and research
relating to water supplies.
Section 8 requires each State to file an annual State
program plan with the Environmental Protection Agency
outlining its methods and resources for establishing
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GUIDELINES AND REPORTS 467
and maintaining an adequate program to enforce the
national primary drinking water standards, beginning
one year after enactment of the legislation. Section
8 also sets out the requirements of the State plan.
Section 9 provides that the Administrator may issue
regulations to carry out the purposes of the legislation.
This section also sets out procedures for issuing
regulations, holding public hearings, and requiring
findings of fact on which regulations are based.
Section 9 also makes provisions for judicial review
of proceedings of the Administrator under the Act.
Section 10 requires suppliers of water and others
subject to the requirements of the Act to submit
reports to and to make available records and information
to the appropriate State agency as necessary for imple-
mentation of the State program. Provision is also
made for employees of the Environmental Protection
Agency to make inspections of water supplies to deter-
mine compliance with the national primary drinking water
standards.
Section 11 provides that no provision of this legislation
will affect the authority of State and local governments
to establish drinking water standards, except that such
shall not be less stringent than the national primary
drinking water standards.
Section 12 lists the prohibited acts, which includes
failure by a supplier of water to make proper notifi-
cations when there is a non-compliance with the
primary standards, failure by a supplier of water to
comply with standards for monitoring and reporting,
and the refusal to allow entry and inspection of
establishments, facilities, and other property.
Section 13 establishes criminal penalties for will-
fully committing the prohibited acts under the bill of
up to $15,000 for each violation, or one year im-
prisonment, or both. Civil penalties of up to $10,000
for each violation is authorized for unwillfull vio-
lations. The Attorney General may also bring an action
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468 LEGAL COMPILATION—SUPPLEMENT n
for injunctive relief.
Section 14 provides that any person may commence a civil
action for injunctive relief against alleged violators of
the national primary drinking water standards or against
the Administrator of the Environmental Protection Agency
where there is alleged a failure to perform any act or
duty under the legislation which is not discretionary
with the Administrator. Detailed procedures for com-
mencing a citizen civil action under this section are
set out.
Section 15 provides that each Federal department or agency
having jurisdiction over a federally owned or maintained
public water system shall meet the primary drinking
water standards, and, to the maximum extent possible,
comply with the secondary standards. This requirement
may be waived in the interest of national security.
The notification required by section 5(b) must be sub-
mitted to the Administrator of EPA in lieu of the
appropriate State agency.
Section 16 authorizes funds as may be necessary to be
appropriated to carry out the provisions of the legisla-
tion.
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GUIDELINES AND REPORTS 469
Controlling Pollution
Sediment Control
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GUIDELINES AND REPORTS 471
ENVIRONMENTAL PROTECT/ON AGENCY
WASHINGTON, D.C. 20460
OFFICE OF THE
ADMINISTRATOR
Honorable Spiro T. Agnew
President of the Senate
Washington, D.C. 20510
Honorable Carl Albert
Speaker of the House
of Representatives
Washington, D.C. 20515
Dear Mr. [President/Speaker]:
I am pleased to transmit a proposed bill amending the
Federal Water Pollution Control Act which is intended
to ensure that States make the control of sediment a
part of their water quality program.
The proposed bill is forwarded in accordance with the
Environmental and Natural Resources State of the Union
Message of the President.
The problems of sedimentation resulting from earth-
disturbing activities such as highway and building con-
struction are severe in many bodies of water. Sedi-
mentation often thwarts the attainment of water quality
objectives, even though controls could be applied.
This amendment to the Federal water Pollution Control
Act is intended to strengthen the Act with regard to
sediment control from construction activities. While
the 1972 amendments provide significant requirements
with regard to sediment control, the sanction for
failure to meet these requirements may not be adequate.
This proposal would provide an additional legal basis
upon which to require States to adopt effective sedi-
ment pollution control measures.
Under section 208 of the Federal Water Pollution Con-
trol Act the Governor of each State may designate waste
treatment management planning areas, or the State shall
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472 LEGAL COMPILATION—SUPPLEMENT n
act as the planning agency for portions of the State
where no designation is made. The section also makes
the preparation of a waste management plan mandatory,
requiring it to include, among other things, procedures
and methods to control construction activity related
sources of pollution. This provision would be enforce-
able under the State program grants provision of
section 106, which requires as a condition of such
grants that the State submit for the approval of the
EPA Administrator its program for the prevention,
reduction, and elimination of pollution in accordance
with the purposes and provisions of the Act.
Section 303(e) of the Act requires that each State
develop for EPA approval a "continuing planning process"
that will "result in plans" containing various specified
items, including "effluent limitations" needed to meet
water quality standards,"adequate schedules of compliance
for...water quality standards" and "controls over the
disposition of all residual waste from any water treat-
ment processing." Thus, the "planning process" already
must include several types of regulatory control mea-
sures. The sanction for failure to establish these or
other measures required in the "planning process" is
EPA disapproval of the "process" and, when that occurs,
refusal to approve the State's Title IV (point source)
permit program. Section 303 also requires "all elements
of any applicable areawide waste management plans under
section 208" to be included in the continuing planning
process. However, for States that have not developed
208 plans, no sanctions are presently available under
section 303 to require sediment control.
This proposed amendment would supplement the sanction
contained in section 106. It would deal with a situa-
tion where a State does not develop "208" plans through-
out its jurisdiction and is willing to suffer a
possible loss of funds under section 106 of the Acto
Thus the proposed amendment to section 303 would add
to the requirements of this section the requirement of
procedures and methods for sediment control with the
same enforcement sanctions that cover other control
measures that are mandated under section 303.
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GUIDELINES AND REPORTS 473
We recommend that the bill be referred to the appro-
priate Committee for consideration and that it be
enacted.
The Office of Management and Budget has advised that
the enactment of this proposed legislation would be
in accord with the program of the President.
Sincerely yours.
William D. Ruckelshaus
Administrator
Enclosure
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474 LEGAL COMPILATION—SUPPLEMENT n
A BILL
To amend the Federal Water Pollution Control Act to
provide for the control of sediment from construction
activities.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
That the Federal Water Pollution Control Act is amended
as follows:
Sec. 1. Section 303 is amended by redesignating sub-
paragraph (H) of section 303(e) (3) as subparagraph (I)
and by inserting after subparagraph (G) the following
new subparagraph:
"(H) procedures and methods (including land use require-
ments where appropriate) to control to the extent
feasible construction activity related sources of
pollution, including runoff from resultant facilities."
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GUIDELINES AND REPORTS 475
Controlling Pollution
Controlling Environmental
Impacts of Transportation
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GUIDELINES AND REPORTS 477
THE SECRETARY OF TRANSPORTATION
WASHINGTON, D.C. 20590
March 22, 1973
Dear Mr. [President/Speaker]:
The Department of Transportation has prepared and
submits herewith as a part of its legislative program
for the 93d Congress a draft of a proposed bill
"To authorize appropriations for certain trans-
portation projects in accordance with title 23 of
the United States Code, and for other purposes",
together with a section-by-section analysis of the bill.
Although the 92d Congress worked hard on compre-
hensive highway and mass transit legislation, a bill
was not enacted last year. As a result, action was not
taken on many important changes in the existing Federal-
aid program which were advocated by the Administration
and carefully considered by the Congress.
Since the adjournment of the last Congress, we have
reviewed our prior proposals and those advanced by
members of the Congress. We have given particular
attention to the important question of the proper use
of Highway Trust Fund monies for transportation projects
—especially those in urbanized areas. We believe that
only by the proper combination of highway and mass
transit capital investment can we expect to effectively
meet the severe and complex transportation problems
faced by our urbanized areas. Our proposed bill,
entitled the "Federal-Aid Highway and Public Trans-
portation Act of 1973", reflects this belief by making
funds available for both types of investment, including
improvements to bus and rapid rail systems.
We also believe that because of their familiarity
with the particulars of their transportation problems,
large urbanized areas should decide for themselves the
proper mix of highway and mass transit capital invest-
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478 LEGAL COMPILATION—SUPPLEMENT n
ment. Accordingly, the bill passes through urban
system funds to urbanized areas having a population
of 400,000 or more.
The bill also provides a means for the resolution
of the controversies which have tied up a number of
Interstate links in our urban areas. Recognizing that
the controversies are usually not whether additional
transportation capacity is needed, but rather how best
to supply it, we would permit funds originally
authorized for the Interstate System to be expended
for other highway and public transportation projects.
Departing from the past practice of requesting two-
year authorizations for the Federal-aid systems, this
bill would provide authorizations for the period
extending from fiscal year 1974 through 1976.
Specifically, the bill provides $3.65 billion for the
urban system and $3 billion for highways on the rural
system during that period. Authorizations for the
Interstate System are requested through the end of
fiscal year 1980, the revised completion date for that
system.
Other important features of the bill include
continuation of a strong rural highway program, providing
State officials flexibility for transportation invest-
ments for rural areas, extension of the secondary road
program procedures to all Federal-aid systems other
than the Interstate System, and expansion of the
coverage of our bill board control program.
The Office of Management and Budget has advised
that enactment of this legislation would be in accord
with the President's program.
Sincerely,
/s/ Claude S. Brinegar
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GUIDELINES AND REPORTS 479
Honorable Spiro T. Agnew
President of the Senate
Washington, D.C. 20510
Honorable Carl Albert
Speaker of the House of Representatives
Washington, D.C. 20515
Enclosures
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480 LEGAL COMPILATION—SUPPLEMENT n
S. 502
H.R. 118
A BILL
To authorize appropriations for certain
transportation projects in accordance with
title 23 of the United States Code, and
for other purposes.
Be it enacted by the Senate and House of Represen-
tatives of the United States of America in Congress
assembled,
SHORT TITLE
SEC. 101. This act may be cited as the "Federal-
Aid Highway and Public Transportation Act of 1973."
REVISION OF AUTHORIZATION OF APPROPRIATIONS FOR
INTERSTATE SYSTEM
SEC. 102 Section 108 (b) of the Federal-Aid Highway
Act of 1956, as amended, is amended by striking out
"the additional sum of $4,000,000,000 for the fiscal
year ending June 30, 1974, the additional sum of
$4,000,000,000 for the fiscal year ending June 30,
1975, and the additional sum of $4,000,000,000 for the
fiscal year ending June 30, 1976" and inserting in lieu
thereof the following: "the additional sum of
$3,250,000,000 for the fiscal year ending June 30, 1974,
the additional sum of $3,150,000,000 for the fiscal
year ending June 30, 1975, the additional sum of
$3,000,000,000 for the fiscal year ending June 30, 1976,
the additional sum of $3,000,000,000 for the fiscal
year ending June 30, 1977, the additional sum of
$3,000,000,000 for the fiscal year ending June 30, 1978,
the additional sum of $3,000,000,000 for the fiscal year
ending June 30, 1979, and the additional sum of
$1,357,000,000 for the fiscal year ending June 30,
1980."
AUTHORIZATION OF USE OF COST ESTIMATE FOR
APPORTIONMENT OF INTERSTATE FUNDS
SEC. 103. The Secretary of Transportation is
authorized .to make the apportionment for fiscal years
1974, 1975, and 1976 of the sums authorized to be
appropriated for such years for expenditures on the
National System of Interstate and Defense Highways, using
the apportionment factors contained in revised table 5
of House Public Works Committee Print Number 92-29.
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GUIDELINES AND REPORTS 481
EXTENSION OF TIME FOR COMPLETION OF SYSTEM
SEC. 104.(a) The second paragraph of section 101(b)
of title 23, United States Code, is amended by striking
out "twenty years'" and inserting in lieu thereof
"twenty-four years'" and by striking out "June 30, 1976"
and inserting in lieu thereof "June 30, 1980."
(b)(1) The introductory phrase and the second and
third sentences of section 104(b)(5) of title 23,
United States Code, are amended by striking out "1976"
each place it appears and inserting in lieu thereof
at each such place "1980."
(2) Section 104(b)(5) is further amended by striking
out the sentence preceding the last three sentences
and inserting in lieu thereof the following: "Upon
the approval by the Congress, the Secretary shall use
the Federal share of such approved estimate in making
apportionments for fiscal years 1974, 1975 and 1976.
The Secretary shall make a revised estimate of the
cost of completing the then designated Interstate System
after taking into account all previous apportionments
made under this section, in the same manner as stated
above, and transmit the same to the Senate and the
House of Representatives within ten days subsequent to
January 2, 1975. Upon the approval by the Congress,
the Secretary shall use the Federal share of such
approved estimate in making apportionments for fiscal
years 1977 and 1978. The Secretary shall make a
final revised estimate of the cost of completing the
then designated Interstate System after taking into
account all previous apportionments made under this
section, in the same manner as stated above, and trans-
mit the same to the Senate and the House of Represen-
tatives within ten days subsequent to January 2, 1977.
Upon the approval by the Congress, the Secretary shall
use the Federal share of such approved estimate in
making apportionments for fiscal years 1979 and 1980.
Whenever the Secretary, pursuant to this subsection,
requests and receives estimates of cost from the State
highway departments, he shall furnish copies of such
estimates at the same time to the Senate and the House
of Representatives."
AUTHORIZATIONS
SEC. 105.(a) For the purpose of carrying out the
provisions of title 23, United States Code, the following
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482 LEGAL COMPILATION—SUPPLEMENT TT
sums are hereby authorized to be appropriated:
(1) For the Federal-aid primary system in rural
areas, out of the Highway Trust Fund, $1,000,000,000
for each of the fiscal years 1974, 1975, and 1976.
(2) For the Federal-aid urban system, out of the
Highway Trust Fund, $1,100,000,000 for fiscal year
1974, $1,200,000,000 for fiscal year 1975, and
$1,350,000,000 for fiscal year 1976.
(3) For forest highways, out of the Highway Trust
Fund, $33,000,000 for each of the fiscal years 1975
and 1976.
(4) For public lands highways, out of the Highway
Trust Fund, $16,000,000 for each of the fiscal years
1975 and 1976.
(5) For the Federal-aid Indian reservation road and
bridge system, out of the Highway Trust Fund, $60,000,-
000 for the fiscal year 1974, and $75,000,000 for each
of the fiscal years 1975 and 1976.
(6) For carrying out section 215(a) of title 23,
United States Code—
(A) for the Virgin Islands, not to exceed
$1,500,000 for fiscal year 1974, and
not to exceed $2,000,000 for each of
the years 1975 and 1976.
(B) for Guam, not to exceed $1,500,000
for fiscal year 1974, and not to exceed
$2,000,000 for each of the fiscal years
1975 and 1976.
(C) Eor American Samoa, not to exceed
$500,000 for fiscal year 1974, and not
to exceed $1,000,000 for each of tne
fiscal years 1975 and 1976.
Sums authorized by this paragraph shall be available for
obligation at the beginning of the fiscal year for which
authorized in the same manner and to the same extent as
if such sums were apportioned under chapter 1 of title
23, United States Code.
(7) For carrying out section 319(b) of title 23,
United States Code (relating to landscaping and scenic
enhancement), out of the Highway Trust Fund $3,000,000
for each of the fiscal years 1975 and 1976.
(8) For necessary administrative expenses in
carrying out section 131, section 136, and section 319
(b) of title 23, United States Code, out of the High-
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GUIDELINES AND REPORTS 483
way Trust Fund, $1,300, for each of the fiscal years
1974, 1975, and 1976.
(9) Nothing in the first six paragraphs of this
section shall be construed to authorize the appropriation
of any sums to carry out section 131, 136, 319 (b), or
chapter 4 of title 23, United States Code.
(b) Any State which has not completed Federal
funding of the Interstate System within its boundaries
shall receive at least one-half of one percentum of the
total apportionment for each of the fiscal years 1974,
1975, and 1976 under section 104(b)(5) of title 23,
United States Code, or an amount equal to the actual
cost of completing such funding, whichever amount is
less.
DEFINITIONS
SEC. 106. Section 101(a) of title 23, United States
Code, is amended as follows:
(1) The definition of the term "construction" is
amended by striking out "Coast and Geodetic Survey" and
by inserting in lieu thereof: "National Oceanic and
Atmospheric Administration."
(2) The definition of "rural areas" is amended to
read: "The term 'rural areas' means all areas of a
State not included in urbanized areas."
(3) The definition of "urbanized areas" is amended
to read: "The term 'urbanized area' means an area so
designated by the Bureau of the Census, within boundaries
to be fixed by responsible State and local officials
in cooperation with each other subject to approval by
the Secretary. Such boundaries shall, as a minimum,
encompass the entire urbanized area designated by the
Bureau of the Census."
(4) The definition of the term "urban area" is
amended by inserting immediately after "State highway
department" the following: "and appropriate local
officials in cooperation with each other."
FEDERAL-AID SYSTEMS
SEC. 107.(a) Section 103(b) of title 23, United
States Code, is redesignated as section 103(b)(l) and
a new section 103(b) (2) is added to read as follows:
11 (b) (2) After June 30, 1975, the Federal-aid
primary system shall consist of an adequate system of
arterial routes in rural areas important to interstate,
statewide, or regional travel. The Federal-aid primary
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484 LEGAL COMPILATION—SUPPLEMENT n
system shall be designated by each State, subject to
the approval of the Secretary as provided in subsection
(f) of this section."
(b) Section 103 (c) of title 23, United States Code,
is redesignated as section 103(c)(1) and a new section
103(c)(2) is added to read as follows:
11 (c) (2) After June 30, 1975, the Federal-aid
secondary system shall consist of major collector routes
in rural areas. The Federal-aid secondary system shall
be designated by each State and appropriate local
officials in cooperation with each other, subject to
the approval of the Secretary as provided in subsection
(f) of this section."
(c) Section 103(d) of title 23, United States Code,
is amended to read as follows:
"(d) The Federal-aid urban system shall be located
in urbanized areas and consist of arterial and collector
routes, and other significant local routes. The routes
on the Federal-aid urban system shall be designated by
the appropriate local officials, after consultation
with the State, and in accordance with section 134 of
this title. Designation of the system shall be subject
to the approval of the Secretary as provided in sub-
section (f) of this section. If a State does not have
an urbanized area, or part thereof, it may designate
routes on the Federal-aid urban system for its largest
urban area, based upon a continuing planning process
developed cooperatively by State and local officials
and approved by the Secretary. Funds authorized to
be appropriated for the Federal-aid urban system are
eligible for expenditure on any Federal-aid highway
route within an urbanized area."
(d) Section 103(e) of title 23, United States Code,
is amended by adding at the end thereof the following:
"(4) in addition to the provisions of paragraph (2)
of the subsection, the Secretary may, at any time prior
to July 1, 1974, upon the joint request of a State and
the local governments concerned, withdraw his approval
of any route or portion thereof on the Interstate
System within that State selected and approved in
accordance with this title prior to the enactment of
this paragraph, if he determines that such route or
portion thereof is not essential to completion of a
unified and connected Interstate System and if he
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GUIDELINES AND REPORTS 485
receives assurances that the State does not intend to
construct a toll road in the traffic corridor which
would be served by such route or portion thereof.
After the Secretary has withdrawn his approval of any
such route or portion thereof, a sum equal to the
Federal share of the cost of such route or portions
thereof, based upon the 1972 Interstate cost estimate,
shall be available for projects on any Federal-aid
system within that State, including projects authorized
by section 142 of this title. The Federal share for
projects substituted under this paragraph shall be
determined in accordance with the provisions of section
120 of this title applicable to the Federal-aid system
of which the substitute project is a part.
(e) Section 103(g) of title 23, United States Code,
is amended to read as follows:
"(g) The Secretary, on July 1, 1974, shall remove
from designation as a part of the Interstate System
any segment of the System for which a State has not
established a schedule for the expenditure of funds for
completion of construction of such segment within the
period of availability of funds authorized to be
appropriated for completion of the Interstate System,
and with respect to which the State has not satisfied
the Secretary that such schedule will be met. The
Secretary, on July 1, 1976, shall remove from desig-
nation as a part of the Interstate System any segment
of the System with respect to which a State has not
submitted plans, specifications, and estimates for
approval. No segment of the Interstate System removed
under authority of this subsection shall thereafter
be designated as a part of the Interstate System.
APPORTIONMENT
SEC. 108. Section 104 of title 23, United States
Code, is amended as follows:
(1) The introductory part of subsection (b) is amended
by striking out "deduction authorized by subsection (a)
of this section" and inserting in lieu thereof
"deductions authorized by subsections (a) and (d) of
this section."
(2) Subsection (b)(1) is amended to read as follows:
"(1) For the Federal-aid primary system:
"One-third in the ratio which the area of each
State bears to the total area of all the States; one-
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486 LEGAL COMPILATION—SUPPLEMENT n
third in the ratio which the total population of each
State outside of urbanized areas, or parts thereof,
bears to the total population of all the States outside
of urbanized areas, or parts thereof, as shown by the
latest available Federal census: one-third in the ratio
which the mileage in each State of rural delivery routes
and intercity mail routes where service is performed
by motor vehicles bears to the total mileage in all the
States of such rural delivery and intercity mail routes
at the close of the next preceding calendar year, as
shown by a certificate of the Postmaster General,
which he is directed to make and furnish annually to
the Secretary. No State shall receive less than one-
half of one percent of each year's apportionment. If
a State does not have an urbanized area, or part there-
of, the population of its largest urban area shall be
excluded from the population totals computed under this
paragraph."
(3) Subsection (b)(2) is amended to read as
follows:
(2) For the Federal-aid secondary system:
"In accordance with the needs of such system as
determined by each State from funds apportioned to the
State under paragraph (1) of this subsection, but not
less than 10 per centum nor more than 30 per centum of
those funds."
(4) Subsection (b)(6) is amended to read as follows:
"(6) For the Federal-aid urban system:
"In the ratio which the population in urbanized
areas, or parts thereof, in each State bears to the
total population in urbanized areas, or parts thereof,
in all the States as shown by the latest available
Federal census. If a State does not have an urbanized
area, or part thereof, the population of its largest
urban area shall be included in the population totals
computed under this paragraph."
(5) Subsections (c), (d), and (f) are repealed;
subsection (e) is redesignated as subsection (c); and
a new subsection (d) is added as follows:
"(d) On or before January 1 next preceding the
commencement of each fiscal year, the Secretary shall
set aside not to exceed one-half per centum of the funds
authorized to be appropriated for expenditure upon the
Federal-aid systems for that fiscal year for the
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GUIDELINES AND REPORTS 487
purpose of carrying out the requirements of section
134 of this title, and apportion that amount to the
States in the manner provided by subsection (b)(6) of
this section. The funds apportioned to a State under
this paragraph shall be allocated within the State to
the agencies responsible for carrying out the provisions
of section 134 of this title according to a formula
developed by the State and approved by the Secretary.
In deriving a formula under this paragraph, the State
shall take into consideration such factors as popu-
lation, status of planning, and metropolitan area
transportation needs. Funds made available to a State
under this paragraph shall be matched by the State in
accordance with section 120(a) of this title unless the
Secretary determines that the interests of Federal
transportation programs would be served better without
such matching.
PROGRAM APPROVAL
SEC. 109. Section 105(d) of title 23, United States
Code, is amended to read as follows:
(d) In approving programs for projects on the
Federal-aid urban system, the Secretary shall require
that such projects be selected by the appropriate
local officials, after consultation with the State,
in accordance with section 134 of this title. Urban
area traffic operations improvement programs and
fringe and corridor parking facilities authorized by
sections 135 and 137, respectively, of title 23, United
States Code, shall be given full consideration in the
selection of projects on the Federal-aid urban system.
ADVANCE ACQUISITION OF RIGHTS-OF-WAY
SEC. 110.(a) The last sentence of section 108(a)
of title 23, United States Code, is amended by striking
out "seven years" and inserting in lieu thereof "ten
years."
(b) The first sentence of section 108(c) (3) of
title 23, United States Code, is amended by striking
out "seven years" and inserting in lieu thereof "ten
years."
SIGNS ON PROJECT SITE
SEC. 111. The last sentence of section 114 (a) of
title 23, United States Code, is amended to read as
follows: "After July 1, 1973, the State highway depart-
ment shall not erect on any project where actual
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488 LEGAL COMPILATION—SUPPLEMENT n
construction is in progress and visible to highway users
any informational signs other than official traffic
control devices conforming with standards devel on<=ri T->\r
the Secretary."
CERTIFICATION ACCEPTANCE
SEC. 112.(a) Section 117 of title 23, United States
Code, is amended to read as follows:
§117. Certification acceptance
"(a) The Secretary may discharge any of his
responsibilities under this title relative to projects
on the Federal-aid systems, except the Interstate
System, upon the request of any State, by accepting a
certification of its capability to perform such
responsibilities, if he finds that such projects will
be carried out in accordance with State laws, regula-
tions, directives, and standards establishing require-
ments at least equivalent to those contained in, or
issued pursuant to, this title.
"(b) The Secretary shall make a final inspection
of each such project upon its completion and shall
require an adequate report of the estimated and actual
cost of construction as well as such other information
as he determines necessary.
"(c) The procedure authorized by this section shall
be an alternative to that otherwise prescribed in this
title. The Secretary shall promulgate such guidelines
and regulations as may be necessary to carry out this
section.
"(d) Acceptance by the Secretary of a State's
certification under this section may be rescinded by
the Secretary within his discretion.
"(e) Nothing in this section shall affect or discharge
any responsibility or obligation of the Secretary
under any Federal law, including the National Environ-
mental Policy Act of 1969 (42 U.S.C. 4321, et seq.),
section 4(f) of the Department of Transportation Act
(49 U.S.C. 1653(f)), title VI of the Civil Rights Act
of 1964 (42 U.S.C. 2000(d), et seq.), title VIII of the
Act of April 11, 1968 (P.L. 90-284, 42 U.S.C. 3601 et
seq.), and the Uniform Relocation Assistance and Land
Acquisition Policies Act of 1970 (42 U.S.C. 4601, et
seq.), other than this title.
(b) The analysis of chapter 1 of title 23, United
States Code, is amended by striking out "117. Secondary
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GUIDELINES AND REPORTS 489
road responsibilities." and inserting in lieu thereof
the following: "117. Certification acceptance."
PUBLIC HEARINGS
SEC. 113. Section 128(a) of title 23, United States
Code, is amended by adding the following at the end
thereof:
"The Secretary shall also require with the submission
of plans for a Federal-aid project an assurance that
all steps have been taken as required pursuant to
guidelines issued by the Secretary to foster and ensure
public participation in the planning of the project
before and after the public hearings required by this
subsection."
FERRIES
SEC. 114. The last subsection of section 129 of
title 23, United States Code, is redesignated as
subsection (g) and paragraph (5) of that subsection is
amended to read as follows:
"(5) Such ferry may be operated only within the
State (including among the islands which comprise the
State of Hawaii) or between adjoining States. Except
with respect to operations between the islands which
comprise the State of Hawaii and operations solely
between the States of Alaska and Washington, no part
of such a ferry operation shall be in any foreign or
international waters."
CONTROL OF OUTDOOR ADVERTISING
SEC. 115.(a) The first sentence of section 131(b)
of title 23, United States Code, is amended by inserting
after "main traveled way of the system," the following:
"and Federal-aid highway and Public Transportation Act
of 1973 to any State which the Secretary determines
has not made provision for effective control of the
erection and maintenance along the Interstate System
and the primary system of those additional outdoor
advertising signs, displays, and devices which are
six hundred and sixty feet or more from the nearest
edge of the right-of-way, outside of incorporated cities
and villages, and visible from the main traveled way
of the system."
(b) Section 131(c) of title 23, United States
Code, is amended to read as follows:
"(c) Effective control means that such signs,
displays, or devices, shall after January 1, 1968, if
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490 LEGAL COMPILATION—SUPPLEMENT n
located within six hundred and sixty feet of the right-
of-way, and after July 1, 1974, or after the expiration
of the next regular session of the State legislature,
whichever is later, if located six hundred and sixty
feet or more from the right-of-way, be limited to (1)
directional and official signs and notices, which signs
and notices shall include, but not be limited to,
signs and notices pertaining to natural wonders, scenic
and historical attractions, which are required or
authorized by law, which shall conform to national
standards hereby authorized to be promulgated by the
Secretary hereunder, which standards shall contain
provisions concerning lighting, size, number, and
spacing of signs, and such other requirements as may
be appropriate to implement this section, (2) signs,
displays, and devices advertising the sale or lease
of property upon which they are located, and (3)
signs, displays, and devices advertising activities
conducted on the property on which they are located."
(c) Section 131(e) of title 23, United States
Code, is amended to read as follows:
" (e) Any nonconforming sign under State law
enacted to comply with this section shall be removed
no later than the end of the fifth year after it be-
comes nonconforming, except as determined by the
Secretary."
(d) Section 131(f) of title 23, United States
Code, is amended by inserting the following after
the first sentence:
"The Secretary shall also, in consultation with
the States, provide within the rights-of-way of other
roads on the Federal-aid highway system for areas in
which signs, displays, and devices giving specific infor-
mation in the interest of the traveling public may be
erected and maintained."
(e) Section 131(g) of title 23, United States Code,
is amended by striking out the first sentence and
inserting the following in lieu thereof: "Just
compensation shall be paid upon the removal of any
outdoor advertising sign, display, or device lawfully
erected under State law prior to the date of enactment
of the Federal-Aid Highway and Public Transportation
Act of 1973."
(f) Section 131(m) of title 23, United States Code,
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GUIDELINES AND REPORTS 491
is amended to read as follows:
"(m) There is authorized to be appropriated to
carry out the provisions of this section, out of any
money in the Treasury not otherwise appropriated, not
to exceed $20,000,000 for each of the fiscal years
1966 and 1967, not to exceed $2,000,000 for fiscal year
1970, not to exceed $27,000,000 for fiscal year 1971, not
to exceed $20,500,000 for fiscal year 1972, and not to
exceed $50,000,000 for fiscal year 1973, and, out of
the Highway Trust Fund, $55,000,000 for each of the
fiscal years 1975 and 1976. The provisions of this
chapter relating to the obligation, period of
availability, and expenditure of Federal-aid primary
highway funds shall apply to the funds authorized to
be appropriated to carry out this section after June
30, 1967."
TRANSPORTATION PLANNING IN CERTAIN URBANIZED AREAS
SECo 116. Section 134(a) of title 23, United
States Code, is amended by striking the second and
third sentences and inserting in lieu thereof the
following:
"To accomplish this objective the Secretary shall
cooperate with the States as authorized in this title,
in the development of transportation plans and pro-
grams which are formulated with due consideration to
their probable effect on the future development of
urbanized areas. The Secretary shall not approve under
section 105 of this title any program for projects in
any urbanized area unless he finds (1) that such pro-
jects result from a continuing comprehensive trans-
portation planning and programming process conducted
by the local governments with consultation and
participation by the State, and (2) that all reasonable
measures have been taken to permit, encourage, and
assist public participation in the planning and
programming process. This process shall serve as the
basis for assigning priorities and allocating funds
for projects on the Federal-aid urban system. A
project may not be constructed or implemented in any
urbanized area unless the responsible public officials
of the area in which the project is located have been
consulted and their views considered with respect to
the corridor, the location, and the design of the project."
URBAN AREA TRAFFIC OPERATIONS
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492 LEGAL COMPILATION—SUPPLEMENT 11
IMPROVEMENT PROGRAMS
SEC. 117. Section 135(c) of title 23, United States
Code, is repealed and section 135(d) is relettered as
subsection (c), including any references thereto.
CONTROL OF JUNKYARDS
SEC. 118^a) Section 136(j) of title 23, United
States Code, is amended by striking out the first
sentence and inserting in lieu thereof the following:
"Just compensation shall be paid the owner for the
relocation, removal, or disposal of junkyards lawfully
established under State law prior to the date of
enactment of the Federal-Aid Highway and Public
Transportation Act of 1973."
(b) Section 136(m) of title 23, United States Code,
is amended to read as follows:
"(m) There is authorized to be appropriated to carry
out this section, out of any money in the Treasury not
otherwise appropriated, not to exceed $20,000,000
for each of the fiscal years 1966 and 1967, not to
exceed $3,000,000 for each of the fiscal years 1970,
1971, and 1972, not to exceed $5,000,000 for fiscal
year 1973, and out of the Highway Trust Fund, not to
exceed $7,000,000 for each of the fiscal years 1975
and 1976. The provisions of this chapter relating to
the obligation, period of availability, and expendi-
ture of Federal-aid primary highway funds shall apply
to the funds authorized to be appropriated to carry
out this section after June 30, 1967."
PRESERVATION OF PARKLANDS
SEC. 119. Section 138 of title 23, United States
Code, is amended (1) by striking out "lands" in the
first sentence and inserting in lieu thereof "areas
(including water)", and (2) by striking out "lands"
and "land" wherever thereafter appearing therein and
inserting in lieu thereof "areas" and "area",
respectively.
TRAINING PROGRAMS
SEC. 120. Section 140(b) of title 23, United
States Code, is amended by striking out in the second
sentence "and 1973" and inserting in lieu thereof ",
1973, 1974, and 1975".
PUBLIC TRANSPORTATION
SEC. 121.(a) Section 142 of title 23, United States
Code, is amended to read as follows:
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GUIDELINES AND REPORTS 493
"§142. Public mass transportation
"(a) To encourage the development, improvement, and
use of public mass transportation systems for the
transportation of passengers within urbanized areas, so
as to increase the efficiency of the Federal-aid
systems, sums apportioned in accordance with section
104(b)(6) of this title shall be available to finance
the Federal share of the cost of construction and
acquisition of facilities and equipment for public
mass transportation projects. For purposes of this
subsection, the term 'public mass transportation'
means ground transportation which provides general or
special service (excluding schoolbus, charter, and
sightseeing service) to the public on a regular and
continuing basis, and includes activities designed to
coordinate such service with other transportation.
Projects which may be financed under this subsection
include, but are not limited to, exclusive or
preferential bus lanes, highway traffic control devices,
passenger loading areas and facilities, including
shelters, and fringe and transportation corridor parking
facilities to serve bus, rail, and other public mass
transportation passengers, the construction of fixed
rail facilities, and the purchase of passenger equip-
ment, including rolling stock for fixed rail facilities.
Projects financed under this subsection may also include
exclusive or preferential truck and emergency vehicle
routes or lanes.
"(b) To encourage the development, improvement,
and use of public transportation systems for the
transportation of passengers in urban areas and rural
areas designated by the States and approved by the
Secretary on the basis of local transportation need,
so as to increase the efficiency of the Federal-aid
systems, sums apportioned in accordance with paragraphs
(1) and (2) of section 104(b) of this title shall be
available to finance the Federal share of the costs
of projects for highway traffic control devices,
passenger loading areas and facilities, including
shelters, and fringe and transportation corridor
parking facilities to serve bus and other public
transportation passengers, and for the purchase of
passenger equipment other than rolling stock for fixed
rail facilities.
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494 LEGAL COMPILATION—SUPPLEMENT n
"(c) To encourage the development, improvement,
and use of public transportation systems for the trans-
portation of passengers in such urban areas and rural
areas as may be designated by the States and approved
by the Secretary on the basis of local transportation
need, so as to increase the efficiency of the Federal-
aid systems, sums apportioned in accordance with
section 104(b)(5) of this title shall be available to
finance the Federal share of the costs of projects
for the construction of exclusive or preferential bus
lanes, highway traffic control devices, passenger
loading areas and facilities, including shelters, and
fringe and transportation corridor parking facilities
to serve bus and other public mass transportation
passengers. Projects financed under this subsection
may also include exclusive or preferential truck and
emergency vehicle routes or lanes. Routes constructed
under this subsection shall not be subject to the
third sentence of section 109(b) of this title.
"(d) The establishment of routes and schedules
of such public mass transportation systems in urbanized
areas shall be based upon a continuing comprehensive
transportation planning process carried on in accordance
with section 134 of title 23, United States Code.
"(e) For the purpose of this title, a project
authorized by subsections (a), (b), or (c) of this
section shall be deemed to be a highway project, and
the Federal share payable on account of such project
shall be determined in accordance with the provisions
of section 120 of this title applicable to the Federal-
aid system involved.
"(f) No public mass transportation project
authorized by this section shall be approved unless the
Secretary of Transportation is satisfied that public mass
transportation systems will have adequate capability to
utilize fully the proposed project and to maintain and
operate properly any equipment acquired under this
section.
"(g) In the acquisition of equipment pursuant to
subsections (a) and (b) of this section, the Secretary
shall require that such equipment meet the standards
prescribed by the Administrator of the Environmental
Protection Agency under section 202 of the Clean Air
Act, as amended, and shall authorize, whenever practicable,
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GUIDELINES AND REPORTS 495
that such equipment meet the special criteria for low-
emission vehicles set forth in section 212 of the Clean
Air Act, as amended.
"(h) The provisions of chapters 1 and 3 of title 23,
United States Code, shall apply in carrying out the
provisions of this section except with respect to
projects within urban areas as to which the Secretary
determines the provisions of the Urban Mass Trans-
portation Act of 1964, as amended, are more appropriately
applicable."
(b) The analysis of chapter 1 of title 23, United
States Code, is amended by striking out "142. Urban
highway public transportaion." and inserting in lieu
thereof "142. Public Mass Transportation."
AVAILABILITY OF URBAN SYSTEM FUNDS
SEC. 122j(a) Chapter 1 of title 23, United States
Code, is amended by adding at the end thereof the
following new section: "§145. Availability of urban
system funds
"(a) Funds apportioned to a State under section 104
(b)(6) of this title which are attributable to urbanized
areas having a population of 400,000 or more, or parts
thereof, shall be allocated among such urbanized areas,
or parts thereof, within the State in the ratio that
the population of the State within each such urbanized
area, or part thereof, bears to the population of all
such urbanized areas, or parts thereof, within the State.
However, such funds shall be available for expenditure
in another urbanized area within such State if the
responsible public officials in both urbanized areas
agree to such availability.
"(b) In any case where an agency is created for an
urbanized area having a population of 400,000 or more,
funds allocated to the urbanized area under this
section shall be available to that agency. An agency
shall be considered to exist for an urbanized area if
(1) it has been created (A) under State law by the local
unit or units of general purpose governments within
the urbanized area which represent at least 75 per
centum of the total population of the area and includes
the political subdivisions with the largest population
in the urbanized area, or (B) by the State or States
involved; and (2) it has adequate powers and is
suitably equipped and organized to plan and carry out
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496 LEGAL COMPILATION—SUPPLEMENT n
projects on the Federal-aid urban system. The agency
may delegate the authority to carry out projects to
appropriate State, metropolitan, or local agencies.
" (c) In the event that cooperation between the
States is necessary in order to realize the full bene-
fit of provisions of this section, the consent of
Congress is given to the States to enter into agreements."
(b) The analysis of chapter 1 of title 23, United
States Code, is amended by inserting at the end there-
of the following: "145. Availability of urban system
funds."
BICYCLE TRANSPORTATION. PEDESTRIAN WALKWAYS
AND EQUESTRIAN TRAILS
SEC. 123(a) Chapter 1 of title 23, United States
Code, is amended by adding at the end thereof the
following new section: "§146. Bicycle transportation,
pedestrian walkways, and equestrian trails
"(a) Sums apportioned in accordance with section
104(b) of this title shall be available to finance the
Federal share of the cost of projects for the acqui-
sition or construction of separate or preferential
bicycle lanes, pedestrian walkways, and equestrian
trails on or in conjunction with highway and other
rights-of-way, including overpasses and underpasses,
traffic control devices, shelters, and bicycle parking
facilities. Projects authorized under this section
shall be located and designed pursuant to an overall
plan which provides due consideration for safety and
contiguous routes.
"(b) For purposes of this title, a project autho-
rized by subsection (a) of this section shall be
deemed to be a highway project, and the Federal share
payable on account of such project shall be that pro-
vided in section 120(a) of this title.
"(c) Funds authorized and appropriated for forest
highways, forest development roads and trails, public
lands development roads' and trails, park roads and
trails, parkways, Indian reservation roads, and public
lands highways shall be available, at the discretion
of the Department charged with the administration of
such funds, for the construction of bicycle, pedestrian,
and equestrian routes in conjunction with such trails,
roads, highways, and parkways.
"(d) Except for maintenance or emergency purposes,
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GUIDELINES AND REPORTS 497
no motorized vehicles shall be permitted on
paths, trails, or walkways authorized under this
section."
(b) The analysis of chapter 1 of title 23, United
States Code, is amended by inserting at the end thereof
the following: "146. Bicycle transportation, pedes-
trian walkways, and equestrian trails."
FEDERAL-AID INDIAN RESERVATION ROAD AND BRIDGE SYSTEM
SEC. 124.(a) Section 208 of title 23, United States
Code, is amended to read as follows:
"SEC. 208. Federal-aid Indian reservation road and
bridge system
"(a) The Federal-aid Indian reservation road and
bridge system shall consist of roads and bridges that
are located within or provide access to an Indian
reservation or Indian trust land or restricted Indian
land which is not subject to fee title alienation with-
out the approval of the Federal Government on which
Indians reside whom the Secretary of the Interior has
determined to be eligible for services generally
available to Indians under Federal laws specifically
applicable to Indians. The Federal-aid Indian reser-
vation road and bridge system shall be designated by
the Secretary and the Secretary of the Interior in
conformity with regulations jointly developed. No
road or bridge on the Federal-aid Indian reservation
road and bridge system shall also be a route on any
other Federal-aid system.
" (b) Funds available for the Federal-aid Indian
reservation road and bridge system shall be used for
the cost of construction and improvement thereof. In
connection therewith, the Secretary may enter into
construction contracts and such other contracts with
a State or civil subdivision thereof as he deems
advisable.
"(c) All appropriations for the Federal-aid Indian
reservation road and bridge system shall be administered
in conformity with regulations jointly approved by
the Secretary and the Secretary of the Interior.
"(d) The Secretary shall transfer to the Secre-
tary of the Interior from appropriations for the
Federal-aid Indian reservation road and bridge system
such amounts as may be needed to cover necessary
administrative expenses of the Bureau of Indian
Affairs in connection with the Federal-aid Indian
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498 LEGAL COMPILATION—SUPPLEMENT n
reservation road and bridge program.
" (e) Construction estimated to cost $15,000 or more
per mile, exclusive of bridges, shall be advertised
and let to contract. If such estimated cost is less
than $15,000 per mile, or if, after proper advertising,
no acceptable bid is received or the bids are deemed
excessive, the work may be done by the Secretary on his
own account. For such purposes, the Secretary may
purchase, lease, hire, rent, or otherwise obtain all
necessary supplies, materials, tools, equipment, and
facilities required to perform the work, and may pay
wages, salaries, and other expenses for help in
connection with such work. Provided, That the Secretary
shall employ Indian labor to the greatest extent
possible in carrying out work done on his own account.
" (f) Indian labor may be employed in such con-
struction and improvement under such rules and regu-
lations as may be prescribed by the Secretary of the
Interior.
"(g) Cooperation of States, counties, or other local
subdivisions may be accepted in such construction and
improvement, and any funds, received from a State, county,
or local subdivision shall be credited to appropriations
available for the Federal-aid Indian reservation road
and bridge system."
(b) The analysis of chapter 2 of title 23, United
States Code, is amended by striking out "208. Indian
reservation roads" and inserting in lieu thereof the
following: "208. Federal-aid Indian reservation road
and bridge system."
(c) Section 202 of title 23,'United States Code,
is amended by adding a new subsection (d) as follows:
" (d) Sums authorized to be appropriated for the
Federal-aid Indian reservation road and bridge system
shall be allocated by the Secretary of the Interior."
(d) Subsection (a) of section 101 of title 23,
U.S.C., is amended as follows:
(1) After the definition of the term "Federal-aid
urban system" add the following new paragraph: "The
term 'Federal-aid Indian reservation road and bridge
system' means the Federal-aid highway system described
in section 208 of this title."
(2) The definition of the term "Federal-aid high-
ways" is amended to read as follows: "The term 'Federal-
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GUIDELINES AND REPORTS 499
aid highways' means highways located on one of the
Federal-aid systems described in sections 103 and 208
of this title."
(e) The Secretary, in cooperation with the Secretary
of the Interior, the States, counties and Tribal Councils,
shall conduct a full and complete investigation and
study of the Federal-aid Indian reservation road and
bridge system including, but not limited to, a
functional highway classification study of such routes
and report to Congress his recommendations resulting
from such investigation and study not later than
July 1, 1974, including an estimate of the cost of
such a program. Funds authorized to carry out section
307 of this title are authorized to be used to carry
out the investigation and study required by this
subsection.
PUBLIC TRANSPORTATION IN NATIONAL FORESTS AND PARKS
SEC. 125.(a) Section 204(f) of title 23, United
States Code, is amended to read as follows:
"(f) Funds available for forest highways shall be
available for adjacent vehicular parking areas, for
sanitary, water, and fire control facilities, and
for passenger loading areas and facilities and the
purchase of buses to provide interpretive or shuttle
transportation services as an alternative means of
transportation."
(b) Section 206 of title 23, United States Code,
is amended by adding at the end thereof the following
new subsection:
"(c) Funds available for park roads and trails shall
be available for adjacent vehicular parking areas and
for passenger loading areas and facilities and the
purchase of buses to provide interpretive or shuttle
transportation services as an alternative means of
transportation."
RESEARCH AND PLANNING
SEC. 126. Section 307(c) of title 23, United States
'"^de, is amended to read as follows:
"(c)(1) One and one-half per centum of the sums
apportioned for each fiscal year beginning with fiscal
year 1974 to any State under section 104 (.b) of this
title shall be available to the State with the approval
of the Secretary for expenditure only for engineering
and economic surveys and investigations; for the
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500 LEGAL COMPILATION—SUPPLEMENT n
planning of transportation programs and the financing
thereof, including associated land use planning; for
studies of the economy, safety, and convenience of
highway usage and the desirable regulation and equitable
taxation thereof; and for research and development
necessary in connection with the planning, design,
construction, and maintenance of highways and transpor-
tation systems, and the regulation and taxation of their
use.
"(c)(2) In addition to the percentage provided in
paragraph (1) of this subsection, not to exceed one-
half of one per centum of the sums apportioned for each
fiscal year beginning with fiscal year 1974 to any
State under section 104(b) of this title shall be
available to the State upon its request for the purposes
enumerated in paragraph (1) of this subsection,
including demonstration projects in connection with
such purposes.
"(c)(3) Sums made available under this subsection
shall be matched by the State in accordance with
section 120 of this title unless the Secretary determines
that the interests of the Federal-aid highway program
would be served better without such matching."
DEMONSTRATION PROJECT—RAIL CROSSINGS
SEC. 127.(a) Section 322(c) of title 23, United
States Code, is amended to read as follows:
"(c)(1) If the highway involved is on any Federal-
aid system, the Federal share of the cost of such work
shall be 100 per centum.
"(2) If the highway involved is not on any Federal-
aid system, the Federal share of the cost of such work
shall be 90 per centum and the remaining 10 per centum
of such cost shall be paid by the State in which such
crossing is located."
(b) Section 322(f) of title 23, United States Code,
is amended by striking out "$9,000,000" and "$22,000,000"
and inserting in lieu thereof $20,000,000" and
"$32,000,000," respectively.
(c) The amendments made by this section shall take
effect with respect to all obligations incurred after
January 1, 1971.
TECHNICAL AMENDMENTS
SEC. 128. Title 23, United States Code, is amended
as follows:
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GUIDELINES AND REPORTS 501
(a) Section 101(a) is amended by striking out
"Secretary of Commerce" and inserting in lieu thereof
"Secretary of Transportation."
(b) Section 109(g) is amended by striking out "Ret"
and inserting in lieu thereof "Act."
(c) Section 126(a) and 310 are amended by
striking out "Commerce" each place it appears and
inserting in lieu thereof "Transportation."
(d) The heading of section 303 is amended to
read: "Administration organization."
(e) Sections 308(b), 312, and 314 are amended by
striking out "Bureau of Public Roads" ,each place it
appears and inserting in lieu thereof "Federal Highway
Administration."
(f) Section 309 is amended by striking out "Bureau
of Public Roads" and inserting in lieu thereof
"Department of Transportation."
(g) Sections 312 and 314 are amended by striking out
"Commerce" each place it appears and inserting in lieu
thereof "Transportation."
INCREASED FEDERAL SHARE—EFFECTIVE DATE
SEC. 129. Section 108(b) of the Federal-Aid High-
way Act of 1970 is amended to read as follows:
"(b) The amendments made by subsection (a) of this
section shall take effect with respect to all obli-
gations incurred after June 30, 1973, except for pro-
jects on which Federal funds were obligated on or
before that date."
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SECTION-BY-SECTION ANALYSIS
SECTION 101. SHORT TITLE
This section provides that the bill may be cited as
the "Federal-Aid Highway and Public Transportation Act
of 1973."
SECTION 102. REVISION OF AUTHORIZATION OF
APPROPRIATIONS FOR INTERSTATE SYSTEM
This section provides authorizations for the
Interstate highway program through fiscal year 1980 in
the following amounts: for fiscal year 1974, $3.25
billion; for fiscal year 1975, $3.15 billion; for each
of the fiscal years 1976 through 1979, $3 billion; and
for fiscal year 1980, $1.407 billion.
SECTION 103. AUTHORIZATION OF USE OF COST ESTIMATE
FOR APPORTIONMENT OF INTERSTATE FUNDS
This section provides for the use of the apportion-
ment factors contained in revised table 5 of the 1972
Interstate System Cost Estimate (House Public Works
Committee Print No. 92-29) for the apportionment of
Interstate System funds authorized to be appropriated
for fiscal years 1974, 1975, and 1976.
SECTION 104. EXTENSION OF TIME FOR COMPLETION OF
SYSTEM
This section extends the time for completion of the
Interstate System until June 30, 1980, and directs the
Secretary to submit to Congress a revised Interstate
System Cost Estimate in January 1975 for apportionment
of Interstate System funds for fiscal years 1977 and
1978, and a final Interstate System Cost Estimate in
January of 1977 for apportionment of Interstate System
funds for fiscal years 1979 and 1980.
This section authorizes the appropriation out of the
Highway Trust Fund of the following sums: for each of the
fiscal years 1974, 1975, and 1976, for the Federal-aid
primary system in rural areas, $1 billion; for the
Federal-aid urban system, $1.1 billion for fiscal year
1974, $1.2 billion for fiscal year 1975, and $1.35 billion
for fiscal year 1976. There is not separate authorization
for the Federal-aid secondary system in rural areas.
However, section 108 of the bill revises the apportionment
formula in 23 U.S.C. 104(b) to provide for meeting the
needs of that system out of monies for the primary system.
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GUIDELINES AND REPORTS 503
In addition to the authorizations for the Federal-
aid systems, the bill also continues funds for forest
highways, public lands, highways, and Indian reser-
vation roads and bridges. For the first time, the
funds for Indian reservation roads and bridges will
come out of the Highway Trust Fund. Funds for forest
highways and public lands highways will come from the
trust fund in accordance with the practice established
in the 1970 Federal-Aid Highway Act. The authorizations
for these highways are as follows:
(in millions)
CATEGORY 1974. 1975 1976
Forest highways 33 33
Public lands highways 16 16
Federal-aid Indian Reservation 60 75 75
road and bridge system
This section also authorizes $3 million for each of
the fiscal years 1975 and 1976 for landscaping and
scenic enhancement; $1.3 million for each of the fiscal
years 1974, 1975, and 1976 for the administrative
expenses of the beautification program; and continues
the territorial highway program established in the 1970
Act with authorizations to the territories in the
following amounts:
(in millions)
CATEGORY 1974 1975 1976
Virgin Islands 1.5 2.0 2.0
Guam 1.5 2.0 2.0
American Samoa .5 1.0 1.0
Funds authorized for the Federal-aid primary system,
the urban system, and other purposes specified in the
first six paragraphs of this section could not be used
to carry out highway beautification programs under
sections 131, 136, and 319(b) of title 23 or safety pro-
grams under Chapter 4 of title 23. Those programs are
financed under separate authorizations.
Each State which has not completed Federal funding
of the Interstate System within its boundaries would
receive at least one-half of one percent of the total
apportionment for the Interstate System for each of
the fiscal years 1974, 1975, and 1976, or an amount equal
to the actual cost of completing such funding, whichever
amount is less.
SECTION 106. DEFINITIONS
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504 LEGAL COMPILATION—SUPPLEMENT n
This section contains a number of changes to the
definitions in 23 U.S.C. 101(a). First, it makes a
conforming amendment to the definitions of the term
"construction" to change the reference to the "Coast
and Geodetic Survey" to its current name "National
Oceanic and Atmospheric Administration."
The definition of "rural areas" would be changed
to mean all areas of a State not included in urbanized
areas.
The definition of "urbanized area" would be changed
to allow responsible State and local officials, in
cooperation with each other, and subject to approval by
the Secretary to fix urbanized area boundaries which,
as a minimum, are required to encompass the entire
urbanized area designated by the Bureau of the Census.
The term "urban area" is amended to require the
participation of appropriate local officials in the
establishment of the boundaries of an urban area.
SECTION 107. FEDERAL-AID SYSTEMS
This section contains a number of amendments to
the provisions of Federal-aid systems contained in 23
U.S.C. 103. It requires the realignment by June 30,
1975, of the Federal-aid primary and secondary systems.
The primary system would be redefined to consist of an
adequate system of arterial routes in rural areas
important to interstate, statewide, or regional travel.
The system would be designated by each State subject to
the Secretary's approval. The secondary system would
consist of major collector routes in rural areas and
be designated by each State and appropriate local
officials in cooperation with each other, subject to the
Secretary's approval. Effective on the date the bill
is enacted, the urban system is redefined to consist
of arterial and collector routes, and other significant
local routes within urbanized areas. They would be
designated by appropriate local officials after con-
sulting with the State, subject to the Secretary's
approval. Selection of urban routes shall be in
accordance with the planning process of 23 U.S.C. 134.
If a State does not have an urbanized area, or part
thereof, it could designate routes on the urban system
for its largest urban area. Funds authorized for the
urban system would be eligible for expenditure on any
Federal-aid highway route within an urbanized area.
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GUIDELINES AND REPORTS 505
Section 107 would also amend section 103(e) of title
23 to provide that at any time prior to July 1, 1974,
upon the joint request of a State and the local
government concerned, the Secretary could withdraw his
approval of any controversial Interstate segment if he
determines that it is not essential to the completion
of a unified and connected Interstate System. However,
the Secretary must receive assurances that the State
does not intend to construct a toll road in the traffic
corridor which the removed segment would have served.
After the Secretary withdraws his approval of any
controversial Interstate segment within a State,
dollar-for-dollar substitution of Interstate mileage
based on the 1972 Interstate cost estimate would be
permitted for any project on any Federal-aid system
within that State, including Interstate substitutions •
and also mass transportation projects authorized by
proposed new section 142 of title 23. Any sums made
available by this amendment would have to be matched
in accordance with the provision of 23 U.S.C. 120
applicable to the particular Federal-aid system
involved. This amendment to section 103(e) would
provide authority in addition to that authority
respecting the transfer of Interstate routes already
contained in section 103(e)(2) of title 23.
Section 107 also amends section 103 to require
the Secretary on July 1, 1974, to remove Interstate
segments from designation as a part of the Interstate
System where a State has not established a construction
schedule within the period of availability of funds
authorized to be appropriated for completion of the
Interstate System and where the Secretary has not
received assurances that such schedule will be met.
Further, it would require the Secretary to remove any
Interstate segment for which plans and specifications
have not been submitted for approval by July 1, 1976.
No segment removed under these provisions could
thereafter be designated as a part of the Interstate
System.
SECTION 108. APPORTIONMENT
This section would amend the Federal-aid primary
apportionment formula in section 104(b) of title 23 to
substitute the total population outside of urbanized
areas for general population. It also amends the
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506 LEGAL COMPILATION—SUPPLEMENT n
formula to reflect the fact that the Postal Service
no longer uses star routes; the mileage of rural
delivery routes and inter-city mail routes where
service is performed by motor vehicles is substituted
in lieu of the star routes. Also, the population
of the largest urban area in a State not having an
urbanized area is excluded from the population totals
computed in connection with the primary apportionment
formula.
This section also amends the Federal-aid secondary
formula to permit States to meet the needs of that
system from funds apportioned for the Federal-aid
primary system. However, not less than 10 percent
nor more than 30 percent of the funds apportioned to
a State for the primary system would be available to
the State for the secondary system.
The Federal-aid urban formula is amended to pro-
vide for the inclusion in the population totals of
the largest population center of each State that does
not have an urbanized area.
This section repeals subsections (c), (d), and
(f) of section 104 respecting the use of apportionments
for one Federal-aid system for projects on another
system, and adds a new subsection which would make
funds available to agencies responsible for carrying
out the planning provisions of 23 U.S.C. 134. Each
year, the Secretary shall set aside for this purpose
not to exceed one-half of one percent of the funds
authorized to be appropriated for expenditure on the
Federal-aid systems for that fiscal year. The
funds would be apportioned to the States according to
the formula for the apportionment of Federal-aid
urban system funds under 23 U.S.C. 104(b)(6). The
distribution of planning funds within a State would
be based on a formula developed by each state and
approved by the Secretary.
SECTION 109. PROGRAM APPROVAL
This section modifies 23 U.S.C. 105(d) to require
that projects on the Federal-aid urban system be
selected by appropriate local officials after consul-
tation with the State and in accordance with the 23
U.S.C. 134 planning process. Presently projects must
be selected by the appropriate local officials and the
State highway department in cooperation with each other.
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GUIDELINES AND REPORTS 507
Further, in approving Federal-aid urban system projects
TOPICS and fringe and corridor parking projects (23 U.S.C.
135 and 137) shall be given full consideration in selecting
projects on the urban system.
SECTION 110. ADVANCE ACQUISITION OF RIGHTS-OF-WAY
This section amends 23 U.S.C. 108(a) to extend from
seven to ten years the allowable time period within
which highway construction must begin following the
advance purchase of rights-of-way.
SECTION 111. SIGNS ON PROJECT SITES
This amendment to 23 U.S.C. 114(a) would, after
July 1, 1973, prohibit any informational signs, other
than official traffic control devices, from being
erected on any highway projects where actual construc-
tion is in progress and where visible to highway users.
SECTION 112. CERTIFICATION ACCEPTANCE
This section amends section 117 of title 23, United
States Code, by broadening its scope to cover all Federal-
aid systems except the Interstate System. Upon the re-
quest of a State, the Secretary may discharge his respon-
sibilities under title 23 relative to projects by
accepting a certification of the capability of the State
to perform such responsibilities, if he finds that pro-
jects will be carried out in accordance with State laws,
regulations, directives and standards establishing
requirements at least equivalent to those required under
title 23. The Secretary would be required to make a
final inspection of such projects upon their completion
and require an adequate report of the estimated and
actual cost of construction and such other information
as he determines necessary. The acceptance of the
State's certification by the Secretary could be rescinded
by him at any time. The procedure provided by this
section is an alternative to that otherwise prescribed
in title 23 and the Secretary is required to promulgate
such guidelines and regulations as may be necessary to
carry out the section.. Nothing in the amendment affects
or discharges the responsibility or obligation of the
Secretary under the National Environmental Policy Act
of 1969, section 4(f) of the Department of Transportation
Act, title VI of the Civil Rights Act of 1964, title VIII
of P.L. 90-284 relating to fair housing, and the Uniform
Relocation Assistance and Land Acquisition Policies
Act of 1970.
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508 LEGAL COMPILATION—SUPPLEMENT n
SECTION 113. PUBLIC HEARINGS
This section amends 23 U.S.C. 128(a) to require
that when plans are submitted for a Federal-aid project,
assurance be given that all steps have been taken
under guidelines issued by the Secretary to foster and
ensure public participation in the planning of the
project before and after the required public hearings.
SECTION 114. FERRIES
This section amends 23 U.S.C. 129 to allow ferries
financed under title 23 to travel in international
waters when operating between the islands which com-
prise the State of Hawaii and when operating solely
between the States of Alaska and Washington. Existing
law provides that such ferries shall be operated only
within a State or between adjoining States, and that
no part of its operation may be in any foreign or
international waters.
SECTION 115. CONTROL OF OUTDOOR ADVERTISING
This section would make a number of changes in the
provisions on the control of outdoor advertising in
23 U.S.C. 131. The present 660-foot limit on the
control of signs along the Interstate and primary
systems would be eliminated. After the date of
enactment of the bill, the 10 percent penalty pro-
vision in section 131 could be imposed on States which
do not remove signs beyond 660 feet which are outside
of incorporated cities and villages and "visible from
the main traveled way."
Unless determined otherwise by the Secretary,
signs that are not in conformity with State law would
have to be removed no later than five years after they
become nonconforming.
The present authority of the Secretary to provide
standards for the erection along the Interstate
System of signs providing specific information for the
traveling public would be expanded to cover other
Federal-aid highway systems.
Just compensation would be paid for the removal of
all outdoor advertising signs which have been lawfully
erected under State law prior to the date of enactment
of the bill.
Not to exceed $55,000,000 is authorized to be
appropriated from the Highway Trust Fund for each of the
fiscal years 1975 and 1976 for purposes of outdoor
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GUIDELINES AND REPORTS 509
advertising control.
SECTION 116. TRANSPORTATION PLANNING IN CERTAIN
URBANIZED AREAS
This section amends 23 U.S.C. 134, relating to com-
prehensive planning, to require the Secretary to
cooperate with the States in the development of
transportation plans and programs which are formulated
with due consideration to their probable effect on
the future development of urbanized areas. No pro-
jects could be approved under section 105 of title
23 in any urbanized area unless the Secretary finds
(1) that such projects result from a continuing
comprehensive transportation planning and programming
process conducted by local governments with consul-
tation and participation by the State, and (2) that
all reasonable measures have been taken to permit
public participation in the planning and programming
process. The assignment of priorities and allocation
of funds for urban system projects shall be based on
this process. Responsible public officials in an
area of a project must be consulted and their views
considered with respect to the corridor, location,
and design of a project before it may be constructed
or implemented in any urbanized area.
SECTION 117. URBAN AREA TRAFFIC OPERATIONS
IMPROVEMENT PROGRAM
This section repeals section 23 U.S.C. 135(c)
(apportionment of sums for the Urban Area Traffic
Operations Improvement Program).
SECTION 118. CONTROL OF JUNKYARDS
This section amends 23 U.S.C. 136(j) to require
that just compensation be paid for removing, relocating
or disposing of junkyards lawfully established under
State law prior to the date of enactment of the bill.
It also authorizes $7 million out of the Highway
Trust Fund for each of the fiscal years 1975 and 1976
for junkyard control.
SECTION 119. PRESERVATION OF PARKLANDS
This section amends section 23 U.S.C. 138,
regarding parkland preservation, to protect publicly
owned water recreation areas and historic water areas
of national. State or local significance, as well as
public lands.
SECTION 120. TRAINING PROGRAMS
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510 LEGAL COMPILATION—SUPPLEMENT n
This section amends 23 U.S.C. 140(b) to extend
authorizations for the highway construction training
program for two years through fiscal year 1975. Five
million dollars would be provided for each of the
fiscal years 1974 and 1975.
SECTION 121. PUBLIC TRANSPORTATION
This section inserts a new section 142 to title 23
requesting public transportation projects. In order
to encourage the development of public mass transpor-
tation systems in urbanized areas and to increase the
efficiency of the Federal-aid systems, this section
would authorize the use of funds apportioned to each
State for the Federal-aid urban system to finance the
Federal share of the costs of public mass transportation
projects, defined to mean ground transportation pro-
viding general or special service (excluding school
bus, charter, and sightseeing service) to the public on
a regular and continuing basis. Included within the
scope of the projects are exclusive or preferential
bus lanes, highway traffic control devices, passenger
loading areas and facilities, including shelters, and
fringe and transportation corridor parking facilities
to serve bus, rail, and other public mass transpor-
tation passengers; the construction of fixed rail
facilities; and the purchase of passenger equipment,
including rolling stock for fixed rail facilities.
To encourage the development of public transpor-
tation systems for the transportation of passengers in
urban and rural areas, the section also authorizes the
use of funds apportioned to each State for the Federal-
aid primary and secondary systems to finance the Federal
share of the costs of projects for highway traffic
control devices, passenger loading areas and facilities,
including shelters, and fringe and transportation
corridor parking facilities to serve bus and other
public transportation passengers, and for the purchase
of passenger equipment other than rolling stock for
fixed rail facilities.
Also, funds apportioned to each State for the
Interstate System are authorized to finance the Federal
share of projects for the construction of exclusive or
preferential bus lanes,.highway traffic control devices,
passenger loading areas and facilities, including
shelters, and fringe and transportation corridor
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GUIDELINES AND REPORTS 511
parking facilities to serve bus and other public trans-
portation passengers.
Any project authorized by this section would be
deemed to be a highway project with the Federal share
payable according to the provision of 23 U.S.C. 120
applicable to the Federal-aid system involved.
The Secretary could not approve any public mass
transportation projects under this section unless he
is satisfied that public mass transportation systems
will have adequate capability to utilize fully the
proposed project and to maintain and operate properly
any equipment acquired.
Buses purchased under this section would have to
meet emission standards prescribed by the Environmental
Protection Agency under section 202 of the Clean Air
Act and, wherever practicable, special criteria for
low emission vehicles set forth in section 212 of
that Act. The provisions of chapters 1 and 3 of
title 23 would apply in carrying out the provisions
of this section except where the Secretary determines
that the provisions of the Urban Mass Transportation
Act of 1964, as amended, are more appropriately
applicable.
SECTION 122. AVAILABILITY OF URBAN SYSTEM FUNDS
This section adds a new section 145 to title 23
respecting the availability of urban system funds for
urbanized areas having a population of 400,000 or
more. Urban system funds apportioned to any State
attributable to these urbanized areas would be
allocated among such urbanized areas within the State
in the ratio that the population of the State within
each such area bears to the population of all such
urbanized areas within the State. Such funds would
be available for expenditure within such urbanized
areas for projects on the urban system including
public mass transportation projects authorized by
revised section 142. Computations under this provision
for a State are to include funds and population
attributable to its portion of urbanized areas over-
lapping State boundaries.
In any case where an agency is created for such
an urbanized area for the purpose of planning and
carrying out projects on the urban system, funds
allocated to the urbanized area under this section would
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512 LEGAL COMPILATION—SUPPLEMENT n
be made available to that agency. The bill does not
require such agencies to be formed.
For purposes of this section, an "agency" would be
considered to exist for an urbanized area (including
those comprised of territory in more than one State)
if (1) it was created (A) under State law by the
local unit or units of general purpose government
within the urbanized area which represent at least 75
percent of the total urbanized area population, and
includes the political subdivision with the largest
population in the urbanized area, or (B) by the State
or States involved; and (2) it is suitably empowered,
equipped, or organized to plan and carry out projects
on the urban system. Projects could be implemented
through delegation of authority to appropriate
agencies at the State, metropolitan, or local level.
SECTION 123. BICYCLE TRANSPORTATION, PEDESTRIAN
WALKWAYS, AND EQUESTRIAN TRAILS
This section adds a new section 146 to title 23
respecting the development of routes for bicycles,
pedestrians, and equestrians. Sums apportioned for the
Federal-aid highway systems would be available for
the acquisition or construction of such routes located
on or in conjunction with highway or other appropriate
rights-of-way. Funds could also be used to finance
the construction of traffic control devices, shelters,
and bicycle parking facilities. Projects authorized
under this program would have to be located and
designed according to an overall plan providing for
safety and for contiguous routes.
Funds authorized and appropriated for forest high-
ways, forest development roads and trails, public lands
development roads and trails, park roads and trails,
parkways, Indian reservation roads and public lands
highways would also be available for such projects
at the discretion of the Department charged with the
administration of such programs.
Except for maintenance or emergency purposes, no
motorized vehicle would be permitted on trails and
walkways authorized under this section.
SECTION 124. FEDERAL-AID INDIAN RESERVATION
ROAD AND BRIDGE SYSTEM
This section revises 23 U.S.C. 208 to establish
a new Federal-aid highway system. Routes eligible for
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GUIDELINES AND REPORTS 513
inclusion on that system would be limited to roads on
Indian reservations which are not on any other Federal-
aid highway system. The system would be designated
jointly by the Secretary of Transportation and the
Secretary of the Interior under regulations they
would develop jointly. Sums authorized for the new
Federal-aid system would be allocated by the Secre-
tary of the Interior in a manner consistent with the
exercise of his trust responsibility to the Indians.
This section also requires the Secretary of Transpor-
tation, in cooperation with the Secretary of the
Interior, the States, counties, and the Indian
tribal councils to conduct a study and investigation
of this new Federal-aid system, including a functional
highway classification study and a cost estimate, by
July 1, 1974.
SECTION 125. PUBLIC TRANSPORTATION IN NATIONAL
FORESTS AND PARKS
This section amends 23 U.S.C. 204 and 206 to
permit funds authorized for forest highways and park
roads and trails to be made available for the purchase
of buses to provide interpretive and shuttle trans-
portation services in national parks and forests as
an alternative to private automobile transportation,
and for the construction of passenger loading
facilities and parking areas.
SECTION 126. RESEARCH AND PLANNING
This section amends 23 U.S.C. 307 (c) to permit
the financing of research and planning for transpor-
tation programs. As presently drafted, section 307 (c)
is limited to research and planning for highway pro-
grams. Beginning with fiscal year 1974, one and one-
half percent of the sums apportioned for each fiscal
year to a State under section 104 (b) would be availa-
ble only for such research and planning.
In addition, not to exceed one-half of one percent
of such sums would be available upon the request of
a State for such purposes, including demonstration
projects in connection therewith.
SECTION 127. DEMONSTRATION PROJECT—RAIL CROSSINGS
This section would eliminate the requirement in
23 U.S.C. 322 for ten percentum participation by the
railroads involved in the demonstration projects
authorized by that section, and it would increase the
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514 LEGAL COMPILATION—SUPPLEMENT n
authorization of funds for the section. The section
contains a provision making the resulting higher
Federal share applicable retroactively to all agree-
ments entered into by a State or railroad on or after
January 1, 1971, so that contribution already agreed
to or made by the individual States and railroads
would be eligible for reimbursement with Federal funds.
SECTION 128. TECHNICAL AMENDMENTS
Several minor technical amendments are made through-
out title 23 to conform language to previous organi-
zational changes and to correct a typographical error.
SECTION 129. INCREASED FEDERAL SHARE—EFFECTIVE
DATE
This section amends section 108(b) of the Federal-
Aid Highway Act of 1970 to increase the Federal share
payable on account of any non-Interstate project from
50 percent to 70 percent with respect to all obli-
gations incurred after June 30, 1973, except for pro-
jects for which Federal funds were obligated on or
before that date.
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GUIDELINES AND REPORTS 515
Controlling Pollution
United Nations Fund
for the Environment
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GUIDELINES AND REPORTS 517
THE SECRETARY OF STATE
WASHINGTON
February 15, 1973
Honorable Spiro T. Agnew
President of the Senate
United States Senate
Washington, D.C. 20510
Honorable Carl Albert
Speaker of the House of Representatives
United States House of Representatives
Washington, D.C. 20515
Dear Mr. [President/Speaker]:
As mentioned in the President's Message to the Congress
on the Environment, there is transmitted herewith a
draft of a proposed act,
"To provide for the participation of the United
States in the United Nations Environment Program."
The proposed act would authorize the appropriation of
amounts for United States voluntary contributions to a
United Nations Environment Fund. The creation of this
Fund was recommended by the United Nations Conference
on the Human Environment, held in Stockholm June 5-16,
1972. The Conference recommendation has been implemented
by UN General Assembly Resolution A/RES/2997 (XXVII).
The creation of a United Nations Environment Fund was
largely the result of United States efforts. In his
Message to the Congress of February 8, 1972, President
Nixon proposed that such a Fund be established, subject
to Congressional approval, the United States fair share
of the Fund, up to $40 million on a 40-60 matching basis.
As of the close of the UN General Assembly in December
1972, a number of governments had made public their
intention to contribute specific amounts (Australia,
Canada, Finland, France, Federal Republic of Germany,
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518 LEGAL COMPILATION—SUPPLEMENT n
Japan, Netherlands, New Zealand, Sweden, United Kingdom)
which, when added to the proposed United States contri-
bution, totals $81.5 million. Several other governments
have indicated their intention to contribute amounts
which would bring the total of the Fund to the $100
million goal.
The purpose of the Fund is to coordinate and support
international environmental programs, particularly
in the fields of identification and control of pollu-
tants, monitoring, conservation, human settlements,
information exchange, education, training and research.
The Fund would employ the facilities of existing organi-
zations wherever possible.
The administration of the Fund is committed to the
Executive Director of the United Nations Environment
Program under the policy guidance of a Governing Council
of 58 member countries. Costs of servicing the
Secretariat and the Governing Council are to be borne
by the UN regular budget. Operational program costs,
program support and administrative costs of the Fund
are to be borne by the Fund.
Members of the Governing Council are elected for three-
year terms on the basis of equitable geographic distri-
bution by the UN General Assembly. In addition to pro-
viding policy guidance to the Executive Director, the
Governing council will decide upon environmental programs
to be supported by the Fund.
In view of the role of the United States in proposing
and securing the creation of the Fund, prompt considera-
tion and early enactment of this legislation are
respectfully urged.
The Office of Management and Budget has advised that the
enactment of this legislation is in accord with the
President's program.
Sincerely yours,
/s/ Marshall Wright
Acting Assistant Secretary
for Congressional Relations
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GUIDELINES AND REPORTS 519
S. 1155
H.R. 5696
AN ACT
To provide for participation by the United States in
the United National Environment Program.
Be in enacted by the Senate and House of Represen-
tatives of the United States of America in Congress
assembled, that this Act may be cited as the "United
Nations Environment Program Participation Act of 1973."
Sec. 2. It is the policy of the United States to
participate in coordinated international efforts to solve
environmental problems of global and international con-
cern, and in order to assist the implementation of this
policy, to contribute funds to the United Nations
Environment Fund for the support of international
measures to protect and improve the environment.
Sec. 3. There are authorized to be appropriated
such amounts as may be necessary for contributions to
the United Nations Environment Fund, which amounts are
authorized to remain available until expended, and which
may be used upon such terms and conditions as the
President may specify.
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520 LEGAL COMPILATION—SUPPLEMENT n
SECTION-BY-SECTION ANALYSIS
Sec. 1. Section 1 contains a "short title" for the
Act.
Sec. 2. Section 2 states the policy upon which
United States support for and participation in the
United Nations Environment Fund is based. It endorses
the creation of the Fund as a means to commence the
amelioration and solution of environmental problems of
global and international concern.
Sec. 3. Section 3 contains the authorization for
appropriations for voluntary United States contributions
to the United Nations Environment Fund.
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GUIDELINES AND REPORTS 521
Controlling Pollution
Ocean Dumping
Convention
155
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GUIDELINES AND REPORTS 523
THE SECRETARY OF STATE
WASHINGTON
February 16, 1973
Honorable Spiro T. Agnew
President of the Senate
Washington, D. C. 20510
Honorable Carl Albert
Speaker of the
House of Representatives
Washington, D. C. 20515
Dear Mr. [President/Speaker]:
Enclosed is a draft of a proposed bill to "amend the
Marine Protection, Research, and Sanctuaries Act of
1972, and for other purposes."
It would be appreciated if you would lay this proposal
before the [Senate/House of Representatives] and if
it would be referred to the appropriate Committee for
consideration. A similar proposal has been submitted
to the [Speaker of the House of Representatives/
President of the Senate]. We respectfully urge that
it be enacted at an early date.
The proposed legislation would provide the amendments
to the Marine Protection, Research, and Sanctuaries
Act of 1972 which are required to enable that Act to
implement fully the Convention of the Prevention of
Marine Pollution By Dumping of Wastes and Other Matter.
Because of the great similarity of the Convention and
the Act, the amendments required to the Act are minor.
Most of the amendments deal with the addition of one
further jurisdictional basis to those found in the
Act. The Act applies to (1) transportation of material
from the United States for the purpose of dumping,
(2) dumping of material transported from outside the
United States in our territorial sea or into our con-
tiguous zone where the dumping affects our territory
or territorial sea, and (3) transportation of material
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524 LEGAL COMPILATION—SUPPLEMENT n
for the purpose of dumping by any officer, employee,
agent, department, agency, or instrumentality of the
United States from any location outside the united
States. The Convention adds a fourth ground of appli-
cation, i.e., transportation of material for the
purpose of dumping if such transportation is (1) by a
vessel or aircraft registered in the United States or
flying the United States flag, and (2) from the
territory of any foreign State not a Contracting Party
to the Convention. Thus, the added jurisdictional
basis involves U.S. control over vessels of its own
flag or registry, and in particular control through
permits when the port State is not Party to the Conven-
tion and required under it to regulate the transporta-
tion from its port of material intended for dumping.
The Convention also differs from the domestic legisla-
tion in that its annexes specify certain substances
which are to be banned from ocean dumping except in
extraordinary circumstances, and substances which are
to require special permits for dumping. The Act pro-
vides authority in subsection 104(d) for the Adminis-
trator to set bans by administrative regulations,
aside from radiological, chemical, or biological war-
fare agents, or high-level radioactive wastes which
are covered by the Act. Also, all permits issued
under the Act will be "special permits" within the
meaning of the Convention, except for those "general
permits" issued pursuant to subsection 104(c). Sub-
section 102(d) provides for a special statutory
general permit for fish wastes. Thus, the existing
legislation provides the necessary authority to issue
administrative regulations to carry out the Convention
annexes. We accept and support this statutory approach
in view of the fact that the annexes are likely to
change rapidly as new information on the pollution
effects of substances is developed and becomes avail-
able to the Convention Parties.
The Office of Management and Budget has advised that
enactment of this proposed legislation is consistent
with the Administration's objectives.
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GUIDELINES AND REPORTS 525
Sincerely,
/s/ Marshall Wright
Acting Assistant Secretary
for Congressional Relations
Enclosure
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526 LEGAL COMPILATION—SUPPLEMENT n
H.R. 5450
A BILL
To amend the Marine Protection, Research, and
Sanctuaries Act of 1972, and for other purposes.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled. That;
(a) Subsection 3(c) of the Marine Protection,
Research, and Sanctuaries Act of 1972 is amended to
read as follows:
"(c) 'Material1 means matter of any kind or des-
cription including, but not limited to, dredged mater-
ial, solid waste, incinerator residue, garbage, sewage,
sludge, munitions, radiological, chemical, and biolog-
ical warfare agents, radioactive materials, chemicals,
biological and laboratory waste, wreck or discarded
equipment, rock, sand, excavation debris, and indus-
trial, municipal, agricultural, and other waste; but
such term does not mean sewage from vessels within
the meaning of section 312 of the Federal Water Pollu-
tion Control Act, as amended (33 U.S.C. §1322). Oil
within the meaning of section 311 of the Federal Water
Pollution Control Act, as amended (33 U.S.C. §1321),
shall be included only insofar as such oil is taken
on board a vessel or aircraft for the purpose of
dumping."
(b) Section 3 of such Act is amended to add a
new subsection (1) to read as follows:
" (_1) 'Convention' shall mean the Convention on
the Prevention of Marine Pollution By Dumping of Wastes
and Other Matter."
SEC. 2. Section 101 of the Marine Protection,
Research, and Sanctuaries Act of 1972 is amended to add
new subsections (d) and (e) to read as follows:
"(d) No person shall load any radiological,
chemical, or biological warfare agent or any high-
level radioactive waste, or except as may be authorized
in a permit issued under this title, any other material
for the purpose of transporting it for dumping into
ocean waters, if such loading (1) is by a vessel or
aircraft registered in the United States or flying the
United States flag and (2) occurs in the territory of
any foreign State not a Contracting Party to the Con-
vention. Any permit issued for such loading shall be
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GUIDELINES AND REPORTS 527
subject to regulations issued under section 108 hereof
by the Secretary of the Department in which the Coast
Guard is operating.
"(e) No person shall transport any material by a
vessel or aircraft registered in the United States or
flying the United States flag for the purpose of
dumping such material in ocean waters when the loading
of the material occurs in the territory of a foreign
State Party to the Convention, except pursuant to a
permit issued by the foreign State in which the
material was loaded.
SEC. 3. (a) The first sentence of subsection
102(a) of the Marine Protection, Research, and
Sanctuaries Act of 1972 is amended to read as follows:
"Except in relation to dredged material, as pro-
vided for in section 103 of this title, and in relation
to radiological, chemical, and biological warfare
agents and high-level radioactive waste, as provided
for in section 101 of this title, the Administrator
may issue permits, after notice and opportunity for
public hearings —
(1) for the transportation from the United States
of material for the purpose of dumping it in
ocean waters, or (2) in the case of an agency
or instrumentality of the United States, for the
transportation from a location outside the United
States of material for the purpose of dumping
it in ocean waters, or (3) for the loading by
a vessel or aircraft registered in the United
States or flying the United States flag, in the
territory of any foreign State not a Contracting
Party to the Convention, of material for the
purpose of transporting it for dumping it in
ocean waters, or (4) for the dumping of material
into the waters described in section 101(b) —
where the Administrator determines that such dumping
will not unreasonably degrade or endanger human health,
welfare, or amenities, or the marine environment,
ecological systems, or economic potentialities."
(b) Subsection 103(a) of the Act is amended to
delete "for the transportation of dredged material for
the purpose of dumping it in ocean waters" and to
insert in its stead the following: "for the transpor-
tation, loading, and dumping of dredged material, in
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528 LEGAL COMPILATION—SUPPLEMENT n
the instances set out in paragraphs (1) through (4) of
subsection 102(a),".
SEC. 4. Section 109 of the Marine Protection,
Research, and Sanctuaries Act of 1972 is amended to
read as follows:
"SEC. 109. (a) The provisions of this Act shall
be construed in a manner which is consistent with the
provisions of the Convention, or any amendments thereto
which, as interpreted by the United States, are binding
upon the United States.
"(b) It is the policy of the Congress that the
President shall undertake to seek effective inter-
national action and cooperation to ensure that all
Parties to the Convention shall carry out their
requirements and obligations under the Convention and
may formulate, present, or support specific proposals
in the forum provided by the international organization
charged with providing administrative, scientific, and
technical services to the Parties to the Convention."
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GUIDELINES AND REPORTS 529
SECTION-BY-SECTION ANALYSIS
Section 1 of the bill would amend section 3 of
the Marine Protection, Research, and Sanctuaries Act
of 1972, which sets out definitions. The definition
of material would extent the Act's coverage to include
oil taken on board a vessel or aircraft for the pur-
pose of dumping. The Convention applies to such oil
(Annex I (5)) while it excludes oil pollution from
the normal operation of ships (Art. III(l)(b)). As
to pollution from ship operation, the Convention con-
tains a pledge by the Parties to promote other oil
pollution protection measures in fora such as that
provided by the Inter-Governmental Maritime Consulta-
tive Organization (IMCO) (Art. XII(a)).
Section 2 of the bill would amend section 101 of
the Marine Protection, Research, and Sanctuaries Act
of 1972 to add new subsections (d) and (e). The new
subsection (d) would partially implement Articles
VI (2)(b) and VII(1)(a) of the Convention on the
Prevention of Marine Pollution By Dumping of Wastes
and Other Matter. Article VI(2)(b) provides that a
Contracting Party to the Convention shall exercise
permit control over matter intended for dumping
"loaded by a vessel or aircraft registered in its
territory or flying its flag, when the loading occurs
in the territory of a State not party to this Conven-
tion.'1 The new subsection 101(d) would enforce the
permit requirement by prohibiting the loading of
material by a vessel or aircraft registered in the
United States or flying the United States flag where
the purpose of the loading was for ultimate dumping
and where the material was loaded in the territory of
any foreign State not a Contracting Party to the
Convention.
The new subsection 101(e) would round out the
requirement that a Party to the Convention exercise
control over vessels or aircraft of its flag or
registry (Art. VII(a)(l)). The subsection would
prohibit any transportation of material for the pur-
pose of dumping by a vessel or aircraft registered
in the United States or flying its flag when the
material is loaded in a State Party to the Convention,
except pursuant to a permit issued by the State of
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530 LEGAL COMPILATION—SUPPLEMENT n
loading. In such a situation the United States could
not issue a permit to a U.S. vessel or aircraft, thus
avoiding any possibility of conflicting permit require-
ments and ensuring that all Party States have clearly
defined responsibilities.
Section 3(a) of the bill would amend subsection
102(a) to actually provide authority for the Adminis-
trator to grant the permits contemplated by Article
VI(2)(b) of the Convention. Section 3(b) of the bill
would amend section 103(a) of the Act to authorize
the Secretary of the Army to grant similar permits
for dredged material.
Article VI(2)(b) of the Convention was inserted to
provide control over the vessels of a Contracting Party
that might hold themselves out as "dumping ships" for
wastes generated in States which are not Contracting
Parties to the Convention. The dumping of such wastes
would otherwise be outside the coverage of the Conven-
tion. The Marine Protection, Research, and Sanctuaries
Act of 1972 had not taken into account such a control
measure because there were no known instances of U.S.
flag vessels engaged in the practice of transporting
wastes for dumping purposes other than from U.S.
territory. In the unlikely event that any U.S. ships
might wish to transport wastes from Non-Party States
to the Convention, the addition of the added jurisdic-
tion over U.S. flag vessels would modestly increase
the administrative burdens involved in implementing
the Act.
Section 4 of the bill makes the only other change
involved in implementation. It modifies existing
section 109 of the Act to recognize the existence of
the Convention and to clearly reflect the interest of
the United States in seeing that all parties to the
Convention carry out their obligations under it.
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GUIDELINES AND REPORTS 531
CONVENTION
ON THE PREVENTION OF MARINE POLLUTION
BY DUMPING OP WASTES
AND OTHER MATTER
The Contracting Parties to this Convention,
Recognizing that the marine environment and the
living organisms which it supports are of vital impor-
tance to humanity, and all people have an interest in
assuring that it is so managed that its quality and
resources are not impaired;
Recognizing that the capacity of the sea to assim-
ilate wastes and render them harmless, and its ability
to regenerate natural resources, is not unlimited;
Recognizing that States have, in accordance with
the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their
own resources pursuant to their own environmental
policies, and the responsibility to ensure that
activities within their jurisdiction or control do not
cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction;
Recalling Resolution 2749 (XXV) of the General
Assembly of the United Nations on the principles
governing the sea-bed and the ocean floor and the sub-
soil thereof, beyond the limits of national jurisdic-
tion;
Noting that marine pollution originates in many
sources, such as dumping and discharges through the
atmosphere, rivers, estuaries, outfalls and pipelines,
and that it is important that States use the best
practicable means to prevent such pollution and
develop products and processes which will reduce the
amount of harmful wastes to be disposed of;
Being convinced that international action to con-
trol the pollution of the sea by dumping can and must
be taken without delay but that this action should not
preclude discussion of measures to control other sources
of marine pollution as soon as possible; and
Wishing to improve protection of the marine
environment by encouraging States with a common
interest in particular geographical areas to enter
into appropriate agreements supplementary to this
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Convention;
Have agreed as follows:
Article I
Contracting Parties shall individually and collec-
tively promote the effective control of all sources of
pollution of the marine environment, and pledge them-
selves especially to take all practicable steps to pre-
vent the pollution of the sea by the dumping of waste
and other matter that is liable to create hazards to
human health, to harm living resources and marine life,
to damage amenities or to interfere with other legiti-
mate uses of the sea.
Article II
Contracting Parties shall, as provided for in the
following Articles, take effective measures individ-
ually, according to their scientific, technical and
economic capabilities, and collectively, to prevent
marine pollution caused by dumping and shall harmonize
their policies in this regard.
Article III
For the purposes of this Convention:
1. (a) "Dumping" means:
(i) any deliberate disposal at sea of wastes
or other matter from vessels, aircraft,
platforms or other man-made structures
at sea;
(ii) any deliberate disposal at sea of
vessels, aircraft, platforms or other
man-made structures at sea.
(b) "Dumping" does not include:
(i) the disposal at sea of wastes or other
matter incidental to, or derived from
the normal operations of vessels, air-
craft, platforms or other man-made
structures at sea and their equipment,
other than wastes or other matter
transported by or to vessels, aircraft,
platforms or other man-made structures
at sea, operating for the purpose of
disposal of such matter or derived from
the treatment of such wastes or other
matter on such vessels, aircraft, plat-
forms or structures;
(ii) placement of matter for a purpose other
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GUIDELINES AND REPORTS 533
than the mere disposal thereof, provided
that such placement is not contrary to
the aims of this Convention.
(c) The disposal of wastes or other matter
directly arising from, or related to the
exploration, exploitation and associated
off-shore processing of sea-bed mineral
resources will not be covered by the
provisions of this Convention.
2. "Vessels and aircraft" means waterborne or air-
borne craft of any type whatsoever. This expression
includes air cushioned craft and floating craft,
whether self-propelled or not.
3. "Sea" means all marine waters other than the
internal waters of States.
4. "Wastes or other matter" means material and sub-
stance of any kind, form or description.
5. "Special permit" means permission granted specif-
ically on application in advance and in accordance
with Annex II and Annex III.
6. "General permit" means permission granted in
advance and in accordance with Annex III.
7. "The Organisation" means the Organisation desig-
nated by the Contracting Parties in accordance with
Article XIV(2).
Article IV
1. In accordance with the provisions of this Conven-
tion Contracting Parties shall prohibit the dumping
of any wastes or other matter in whatever form or
condition except as otherwise specified below:
(a) the dumping of wastes or other matter
listed in Annex I is prohibited;
(b) the dumping of wastes or other matter
listed in Annex II requires a prior
special permit;
(c) the dumping of all other wastes or matter
requires a prior general permit.
2. Any permit shall be issued only after careful con-
sideration of all the factors set forth in Annex III,
including prior studies of the characteristics of the
dumping site, as set forth in Sections B and C of that
Annex.
3. No provision of this Convention is to be inter-
preted as preventing a Contracting Party from prohibit-
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ing, insofar as that Party is concerned, the dumping
of wastes or other matter not mentioned in Annex I.
That Party shall notify such measures to the
Organisation.
Article y
1. xne provisions of Article IV shall not apply when
it is necessary to secure the safety of human life or
of vessels, aircraft, platforms or other man-made
structures at sea in cases of force majeure caused by
stress of weather, or in any case which constitutes
a danger to human life or a real threat to vessels,
aircraft, platforms or other man-made structures at
sea, if dumping appears to be the only way of averting
the threat and if there is every probability that the
damage consequent upon such dumping will be less than
would otherwise occur. Such dumping shall be so
conducted as to minimize the likelihood of damage to
human or marine life and shall be reported forthwith
to the Organisation.
2. A Contracting Party may issue a special permit as
an exception to Article IV(1)(a), in emergencies,
posing unacceptable risk relating to human health and
admitting no other feasible solution. Before doing
so the Party shall consult any other country or
countries that are likely to be affected and the
Organisation which, after consulting other Parties, and
international organisations as appropriate, shall in
accordance with Article XIV promptly recommend to the
Party the most appropriate procedures to adopt. The
Party shall follow these recommendations to the maximum
extent feasible consistent with the time within which
action must be taken and with the general obligation
to avoid damage to the marine environment and shall
inform the Organisation of the action it takes. The
Parties pledge themselves to assist one another in
such situations.
3. Any Contracting Party may waive its rights under
paragraph (2) at the time of, or subsequent to ratifi-
cation of, or accession to this Convention.
Article VI
1. Each Contracting Party shall designate an appro-
priate authority or authorities to:
(a) issue special permits which shall be required
prior to, and for, the dumping of matter
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GUIDELINES AND REPORTS 535
listed in Annex II and in the circumstances
provided for in Article V(2) ;
(b) issue general permits which shall be
required prior to, and for, the dumping of
all other matter;
(c) keep records of the nature and quantities
of all matter permitted to be dumped and
the location, time and method of dumping;
(d) monitor individually, or in collaboration
with other Parties and competent Inter-
national Organisations, the condition of
the seas for the purposes of this Convention.
2. The appropriate authority or authorities of a
Contracting Party shall issue prior special or general
permits in accordance with paragraph (1) in respect
of matter intended for dumping:
(a) loaded in its territory;
(b) loaded by a vessel or aircraft registered in
its territory or flying its flag, when the
loading occurs in the territory of a State
not party to this Convention.
3. In issuing permits under sub-paragraphs (1)(a)
and (b) above, the appropriate authority or authorities
shall comply with Annex III, together with such addi-
tional criteria, measures and requirements as they
may consider relevant.
4. Each Contracting Party, directly or through a
Secretariat established under a regional agreement,
shall report to the Organisation, and where appropriate
to other Parties, the information specified in sub-
paragraphs (c) and (d) of paragraph (1) above, and
the criteria, measures and requirements it adopts in
accordance with paragraph (3) above. The procedure
to be followed and the nature of such reports shall be
agreed by the Parties in consultation.
Article VII
1. Each Contracting Party shall apply the measures
required to implement the present Convention to all:
(a) vessels and aircraft registered in its
territory or flying its flag;
(b) vessels and aircraft loading in its terri-
tory or territorial seas matter which is to
be dumped;
(c) vessels and aircraft and fixed or floating
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platforms under its jurisdiction believed
to be engaged in dumping.
2. Each Party shall take in its territory appropriate
measures to prevent and punish conduct in contravention
of the provisions of this Convention.
3. The Parties agree to co-operate in the develop-
ment of procedures for the effective application of
this Convention particularly on the high seas,
including procedures for the reporting of vessels
and aircraft observed dumping in contravention of the
Convention.
4. This Convention shall not apply to those vessels
and aircraft entitled to sovereign immunity under
international law. However each Party shall ensure by
the adoption of appropriate measures that such vessels
and aircraft owned or operated by it act in a manner
consistent with the object and purpose of this Conven-
tion, and shall inform the Organisation accordingly.
5. Nothing in this Convention shall affect the right
of each Party to adopt other measures, in accordance
with the principles of international law, to prevent
dumping at sea.
Article VIII
In order to further the objectives of this Conven-
tion, the Contracting Parties with common interests to
protect in the marine environment in a given geograph-
ical area shall endeavour, taking into account char-
acteristic regional features, to enter into regional
agreements consistent with this Convention for the
prevention of pollution, especially by dumping. The
Contracting Parties to the present Convention shall
endeavour to act consistently with the objectives and
provisions of such regional agreements, which shall
be notified to them by the Organisation. Contracting
Parties shall seek to co-operate with the Parties to
regional agreements in order to develop harmonized
procedures to be followed by Contracting Parties to
the different conventions concerned. Special atten-
tion shall be given to co-operation in the field of
monitoring and scientific research.
Article IX
The Contracting Parties shall promote, through
collaboration within the Organisation and other inter-
national bodies, support for those Parties which
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GUIDELINES AND REPORTS 537
request it for:
(a) the training of scientific and technical
personnel;
(b) the supply of necessary equipment and
facilities for research and monitoring;
(c) the disposal and treatment of waste and
other measures to prevent or mitigate
pollution caused by dumping;
preferably within the countries concerned, so furthering
the aims and purposes of this Convention.
Article X
In accordance with the principles of international
law regarding State responsibility for damage to the
environment of other States or to any other area of
the environment, caused by dumping of wastes and
other matter of all kinds, the Contracting Parties
undertake to develop procedures for the assessment of
liability and the settlement of disputes regarding
dumping.
Article XI
The Contracting Parties shall at their first con-
sultative meeting consider procedures for the settle-
ment of disputes concerning the interpretation and
application of this Convention.
Article XII
The Contracting Parties pledge themselves to pro-
mote, within the competent specialised agencies and
other international bodies, measures to protect the
marine environment against pollution caused by:
(a) hydrocarbons, including oil, and their wastes;
(b) other noxious or hazardous matter transported
by vessels for purposes other than dumping;
(c) wastes generated in the course of operation
of vessels, aircraft, platforms and other
man-made structures at sea;
(d) radio-active pollutants from all sources,
including vessels;
(e) agents of chemical and biological warfare;
(f) wastes or other matter directly arising
from, or related to the exploration,
exploitation and associated off-shore
processing of sea-bed mineral resources.
The Parties will also promote, within the appropriate
international organisation, the codification of signals
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to be used by vessels engaged in dumping.
Article XIII
Nothing in this Convention shall prejudice the
codification and development of the law of the sea by
the United Nations Conference on the Law of the Sea
convened pursuant to Resolution 2750 C (XXV) of the
General Assembly of the United Nations nor the present
or future claims and legal views of any State con-
cerning the law of the sea and the nature and extent
of coastal and flag State jurisdiction. The Contract-
ing Parties agree to consult at a meeting to be
convened by the Organisation after the Law of the Sea
Conference, and in any case not later than 1976, with
a view to defining the nature and extent of the right
and the responsibility of a coastal State to apply the
Convention in a zone adjacent to its coast.
Article XIV
1. The Government of the United Kingdom of Great
Britain and Northern Ireland as a depositary shall call
a meeting of the Contracting Parties not later than
three months after the entry into force of this Conven-
tion to decide on organisational matters.
2. The Contracting Parties shall designate a compe-
tent Organisation existing at the time of that meeting
to be responsible for Secretariat duties in relation
to this Convention. Any Party to this Convention
not being a member of this Organisation shall make an
appropriate contribution to the expenses incurred by
the Organisation in performing these duties.
3. The Secretariat duties of the Organisation shall
include:
(a) the convening of consultative meetings of
the Contracting Parties not less frequently
than once every two years and of special
meetings of the Parties at any time on the
request of two-thirds of the Parties;
(b) preparing and assisting, in consultation
with the Contracting Parties and appropriate
International Organisations, in the develop-
ment and implementation of procedures
referred to in sub-paragraph (4)(e) of this
Article;
(c) considering enquiries by, and information
from the Contracting Parties, consulting
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GUIDELINES AND REPORTS 539
with them and with the appropriate Inter-
national Organisations, and providing
recommendations to the Parties on questions
related to, but not specifically covered by
the Convention;
(d) conveying to the Parties concerned all
notifications received by the Organisation
in accordance with Articles IV(3), V(l) and
(2). VI(4), XV, XX and XXI.
Prior to the designation of the Organisation these
functions shall, as necessary, be performed by the
depositary, who for this purpose shall be the Govern-
ment of the United Kingdom of Great Britain and
Northern Ireland.
4. Consultative or special meetings of the Contract-
ing Parties shall keep under continuing review the
implementation of this Convention and may, inter__alia;
(a) review and adopt amendments to this Conven-
tion and its Annexes in accordance with
Article XV;
(b) invite the appropriate scientific body or
bodies to collaborate with and to advise
the Parties or the Organisation on any
scientific or technical aspect relevant
to this Convention, including particularly
the content of the Annexes;
(c) receive and consider reports made pursuant
to Article VI(4);
(d) promote co-operation with and between
regional organisations concerned with the
prevention of marine pollution;
(e) develop or adopt, in consultation with
appropriate International Organisations
procedures referred to in Article V(2)
including basic criteria for determining
exceptional and emergency situations, and
procedures for consultative advice and the
safe disposal of matter in such circumstances,
including the designation of appropriate
dumping areas, and recommend accordingly;
(f) consider any additional action that may be
required.
5. The Contracting Parties at their first consulta-
tive meeting shall establish rules of procedure as
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necessary.
Article XV
1. (a) At meetings of the Contracting Parties called
in accordance with Article XIV amendments to this
Convention may be adopted by a two-thirds majority of
those present. An amendment shall enter into force for
the Parties which have accepted it on the sixtieth day
after two-thirds of the Parties shall have deposited
an instrument of acceptance of the amendment with the
Organisation. Thereafter the amendment shall enter
into force for any other Party 30 days after that
Party deposits its instrument of acceptance of the
amendment.
(b) The Organisation shall inform all Contracting
Parties of any request made for a special meeting
under Article XIV and of any amendments adopted at
meetings of the Parties and of the date on which each
such amendment enters into force for each Party.
2. Amendments to the Annexes will be based on
scientific or technical considerations. Amendments
to the Annexes approved by a two-thirds majority of
those present at a meeting called in accordance with
Article XIV shall enter into force for each Contracting
Party immediately on notification of its acceptance
to the Organisation and 100 days after approval by the
meeting for all other Parties except for those which
before the end of the 100 days make a declaration that
they are not able to accept the amendment at that time.
Parties should endeavour to signify their acceptance
of an amendment to the Organisation as soon as possible
after approval at a meeting. A Party may at any time
substitute an acceptance for a previous declaration
of objection and the amendment previously objected to
shall thereupon enter into force for that Party.
3. An acceptance or declaration of objection under
this Article shall be made by the deposit of an instru-
ment with the Organisation. The Organisation shall
notify all Contracting Parties of the receipt of such
instruments.
4. Prior to the designation of the Organisation, the
Secretarial functions herein attributed to it, shall
be performed temporarily by the Government of the
United Kingdom of Great Britain and Northern Ireland,
as one of the depositaries of this Convention.
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GUIDELINES AND REPORTS 541
Article XVI
This Convention shall be open for signature by any
State at London, Mexico City, Moscow and Washington
from 29 December 1972 until 31 December 1973.
Article XVII
This Convention shall be subject to ratification.
The instruments of ratification shall be deposited with
the Governments of Mexico, the Union of Soviet Social-
ist Republics, the United Kingdom of Great Britain
and Northern Ireland, and the United States of
America.
Article XVIII
After 31 December 1973, this Convention shall be
open for accession by any State. The instruments of
accession shall be deposited with the Governments of
Mexico, the Union of Soviet Socialist Republics, the
United Kingdom of Great Britain and Northern Ireland,
and the United States of America.
Article XIX
1. This Convention shall enter into force on the
thirtieth day following the date of deposit of the
fifteenth instrument of ratification or accession.
2. For each Contracting Party ratifying or acceding
to the Convention after the deposit of the fifteenth
instrument of ratification or accession, the Conven-
tion shall enter into force on the thirtieth day after
deposit by such Party of its instrument of ratifica-
tion or accession.
Article XX
The depositaries shall inform Contracting Parties:
(a) of signatures to this Convention and of the
deposit of instruments of ratification,
accession or withdrawal, in accordance with
Articles XVI, XVII, XVIII and XXI, and
(b) of the date on which this Convention will
enter into force, in accordance with
Article XIX.
Article XXI
Any Contracting Party may withdraw from this
Convention by giving six months' notice in writing to
a depositary, which shall promptly inform all Parties
of such notice.
Article XXII
The original of this Convention of which the
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542 LEGAL COMPILATION—SUPPLEMENT n
English, French, Russian and Spanish texts are equally
authentic, shall be deposited with the Governments of
Mexico, the Union of Soviet Socialist Republics, the
United Kingdom of Great Britain and Northern Ireland
and the United States of America who shall send certi-
fied copies thereof to all States.
IN WITNESS WHEREOF the undersigned Plenipoten-
tiaries, being duly authorised thereto by their respec-
tive Governments have signed the present Convention.
DONE in quadruplicate at London, Mexico City,
Moscow and Washington, this twenty-ninth day of
December, 1972.
ANNEX I
1, Organohalogen compounds.
2. Mercury and mercury compounds.
3. Cadmium and cadmium compounds.
4. Persistent plastics and other persistent synthetic
materials, for example, netting and ropes, which may
float or may remain in suspension in the sea in such
a manner as to interfere materially with fishing, navi-
gation or other legitimate uses of the sea.
5. Crude oil, fuel oil, heavy diesel oil, and
lubricating oils, hydraulic fluids, and any mixtures
containing any of these, taken on board for the purpose
of dumping.
6. High-level radio-active wastes or other high-
level radio-active matter, defined on public health,
biological or other grounds, by the competent inter-
national body in this field, at present the Inter-
national Atomic Energy Agency, as unsuitable for dump-
ing at sea.
7. Materials in whatever form (e.g. solids, liquids,
semi-liquids, gases or in a living state) produced for
biological and chemical warfare.
8. The preceding paragraphs of this Annex do not
apply to substances which are rapidly rendered harmless
by physical, chemical or biological processes in the
sea provided they do not:
(i) make edible marine organisms unpalatable, or
(ii) endanger human health or that of domestic
animals.
The consultative procedure provided for under Article
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GUIDELINES AND REPORTS 543
XIV should be followed by a Party if there is doubt
about the harmlessness of the substances.
9. This Annex does not apply to wastes or other
materials (e.g. sewage sludges and dredged spoils)
containing the matters referred to in paragraphs 1-5
above as trace contaminants. Such wastes shall be
subject to the provisions of Annexes II and III as
appropriate.
ANNEX II
The following substances and materials requiring
special care are listed for the purposes of Article
VI(1)(a).
A. Wastes containing significant amounts of the
matters listed below:
arsenic )
)
lead )
) and their compounds
copper )
zinc )
organosilicon compounds
cyanides
fluorides
pesticides and their by-products not covered
in Annex I.
B. In the issue of permits for the dumping of
large quantities of acids and alkalis, consideration
shall be given to the possible presence in such wastes
of the substances listed in paragraph A and to the
following additional substances:
beryllium )
)
chromium )
) and their compounds
nickel )
)
vanadium )
C. Containers, scrap metal and other bulky
wastes liable to sink to the sea bottom which may
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544 LEGAL COMPILATION—SUPPLEMENT n
present a serious obstacle to fishing or navigation.
D. Radio-active wastes or other radio-active
matter not included in Annex I. In the issue of
permits for the dumping of this matter, the Contracting
Parties should take full account of the recommendations
of the competent international body in this field, at
present the International Atomic Energy Agency.
ANNEX III
Provisions to be considered in establishing
criteria governing the issue of permits for the dumping
of matter at sea, taking into account Article IV(2),
include:
A. Characteristics and composition of the matter
1. Total amount and average composition of matter
dumped (e.g. per year).
2. Form, e.g. solid, sludge, liquid, or gaseous.
3. Properties: physical (e.g. solubility and
density), chemical and biochemical (e.g. oxygen demand,
nutrients) and biological (e.g. presence of viruses,
bacteria, yeasts, parasites).
4. Toxicity.
5. Persistence: physical, chemical and biological.
6. Accumulation and biotransformation in biological
materials or sediments.
7. Susceptibility to physical, chemical and biochem-
ical changes and interaction in the aquatic environ-
ment with other dissolved organic and inorganic
materials.
8. Probability of production of taints or other
changes reducing marketability of resources (fish,
shellfish, etc.).
B. Characteristics of dumping site and method
of deposit
1. Location (e.g. co-ordinates of the dumping area,
depth and distance from the coast), location in rela-
tion to other areas (e.g. amenity areas, spawning,
nursery and fishing areas and exploitable resources).
2. Rate of disposal per specific period (e.g.
quantity per day, per week, per month).
3. Methods of packaging and containment, if any.
4. Initial dilution achieved by proposed method of
release.
5. Dispersal characteristics (e.g. effects of
currents, tides and wind on horizontal transport and
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GUIDELINES AND REPORTS 545
vertical mixing).
6. Water characteristics (e.g. temperature, pH,
salinity, stratification, oxygen indices of pollution-
dissolved oxygen (DO), chemical oxygen demand (COD),
biochemical oxygen demand (BOD) — nitrogen present in
organic and mineral form including ammonia, suspended
matter, other nutrients and productivity.
7. Bottom characteristics (e.g. topography, geochem-
ical and geological characteristics and biological
productivity).
8. Existence and effects of other dumpings which have
been made in the dumping area (e.g. heavy metal back-
ground reading and organic carbon content).
9. In issuing a permit for dumping, Contracting
Parties should consider whether an adequate scientific
basis exists for assessing the consequences of such
dumping, as outlined in this Annex, taking into
account seasonal variations.
C. General considerations and conditions
1. Possible effects on amenities (e.g. presence of
floating or stranded material, turbidity, objectionable
odour, discolouration and foaming).
2. Possible effects on marine life, fish and shell-
fish culture, fish stocks and fisheries, seaweed har-
vesting and culture.
3. Possible effects on other uses of the sea (e.g.
impairment of water quality for industrial use, under-
water corrosion of structures, interference with ship
operations from floating materials, interference with
fishing or navigation through deposit of waste or
solid objects on the sea floor and protection of areas
of special importance for scientific or conservation
purposes),
4. The practical availability of alternative land-
based methods of treatment, disposal or elimination,
or of treatment to render the matter less harmful for
dumping at sea.
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GUIDELINES AND REPORTS 547
Controlling Pollution
IMCO Conventions
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GUIDELINES AND REPORTS 549
THE SECRETARY OF TRANSPORTATION
WASHINGTON, D.C. 20590
February 15, 1973
Dear Mr. [President/Speaker] :
There is transmitted herewith a draft of a proposed bill,
"To amend the Oil Pollution Act, 1971, (75 Stat.
402), as amended, to implement the 1969 and 1971
amendments to the international Convention for
the Prevention of Pollution of the Sea by oil, 1954,
as amended; and for other purposes."
The proposed bill would incorporate into the existing
domestic law which implements the original 1954 Oil
Pollution Convention the latest amendments to the Con-
vention adopted by the Intergovernmental Maritime
Consultative Organization (IMCO) by Resolution A.175(VI)
on October 21, 1969; Resolution A.232 (VII) on October
12, 1971, and Resolution A.246(VII) on October 15, 1971.
You will recall that ratification of the 1969 amendments
was advised and consented to by the Senate on September
20, 1971. Additionally in May 1972 and 1971 amendments
were submitted to the Senate for their advice and con-
sent. The submission of draft legislation at this time
is in accord with the Executive Branch intention of
seeking legislative implementation at the earliest pos-
sible time.
The 1969 convention changes, particularly as they impose
more stringent constraints on oil and oily mixture dis-
charges from vessels anywhere, represent another advanc-
ing step toward remedy of ocean oil pollution, a major
international as well as national environmental problem.
Those amendments abandon the concept which prohibited
discharges within certain zones (generally within 50
miles of land) and which discouraged but did not prohibit
indiscriminate discharges in the open sea beyond the
zones. Under the amendments and the legislation here
proposed, discharges will be prohibited anywhere unless
certain conditions are met. Those conditions relate to
discharge rate, oily mixture dilution, total quantity of
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550 LEGAL COMPILATION—SUPPLEMENT n
oil discharged, and distance from land. For example, a
tanker will be prohibited from any discharges within 50
miles of land, and beyond that distance may only dis-
charge while proceeding enroute and so long as a dis-
charge of oil content does not exceed 60 liters per mile,
and provided that the total quantity of oil discharged
on a ballast voyage does not exceed 1/15,000 of the total
cargo-carrying capacity of the vessel.
The 1971 amendments apply the distance from land criterion
for discharges of oil and oily mixtures to the area of the
Great Barrier Reef as if it were land, and concern tank
arrangements and limitations of tank size for new tank
vessels. The objective of the amendments relating to
tank arrangements and tank size is to limit the quantity
of oil which can escape into the sea as the result of
collision or other vessel casualty.
In addition to the criminal penalties now provided for
violations of the 1961 Act these proposed amendments
would make civil penalties also available for more flexi-
ble and effective enforcement. Article VI of the Oil
Pollution Convention requires that penalties which a
country imposes for unlawful discharges by domestic
vessels beyond its territorial sea shall not be less than
those for the same infringements within the territorial
sea. That requirement will be satisfied because the
civil penalties proposed in the draft bill are equal to
or larger in amount than those contained in section 311
of the Federal Water Pollution Control Act (P.L. 92-500).
It would be appreciated if you would lay this proposal
before the [Senate/House of Representatives] . A similar
proposal has been submitted to the [President of the
Senate/Speaker of the House of Representatives], .
The Office of Management and Budget advises that this pro-
posed legislation is consistent with the Administration's
objectives.
Sincerely,
/s/Claude Brinegar
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GUIDELINES AND REPORTS 551
Honorable Spiro T. Agnew
President of the Senate
Washington, D. C. 20510
Honorable Carl Albert
Speaker of the House of Representatives
Washington, D. C. 20515
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552 LEGAL COMPILATION—SUPPLEMENT n
S. 1067
H.R. 5451
A BILL
To amend the Oil Pollution Act, 1961 (75 Stat. 402),
as amended, to implement the 1969 and the 1971 amend-
ments to the international Convention for the Pre-
vention of the Pollution of the Sea by Oil, 1954, as
amended; and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assem-
bled, That this Act may be cited as the Oil Pollution Act
Amendments of 1973.
SEC. 2. The Oil Pollution Act, 1971 (75 Stat. 402), as
amended, (33 U.S.C. 1001-1015), is amended as follows:
(1) Section 2 (33 U.S.C. 1001) is amended —
(A) by redesignating subsections (c), (d), (e)
and (f), as subsections (d), (e), (f), and (g), respec-
tively;
(B) by adding a new subsection (c) to read,
"(c) The term 'instantaneous rate of discharge of oil con-
tent1 means the rate of discharge of oil in liters per
hour at any instant divided by the speed of the ship in
knots at the same instant;"}
(C) in subsection (c) [redesignated (d) by
subparagraph (A) of this paragraph]:
(1) by deleting the word "marine"; and
(2) by deleting the figures "D-86/59" at
the end of the sentence and inserting in lieu thereof the
phrase "D.86-71 or any later revisions subject to regula-
tory acceptance by the Coast Guard";
(D) in subsection (e) [redesignated (f) by sub-
paragraph (A) of this paragraph] by changing the period to
a semicolon at the end of the first sentence thereof and
by amending the second sentence to read "an "oily mixture1
means a mixture with any oil content;";
(E) by repealing subsection (g); and
(F) by amending subsection (h) to read "The
term 'Secretary' means the Secretary of the department in
which the Coast Guard is operating;".
(G) in subsection (j) by changing the period to
a semicolon and by adding the following to the sentence:
"except that, for the purpose of this Act 'from
the nearest land1 off the northeastern coast of Australia
means a line drawn from a point on the coast of Australia
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GUIDELINES AND REPORTS 553
in latitude 11° South, longitude 142°08' East to a point
in latitude 10°35' South, longitude 141°55' East —
thence to a point latitude 10°00' South, longi-
tude 142°00' East
thence to a point latitude 9°10' South, longi-
tude 143°52' East
thence to a point latitude 9°00' South, longi-
tude 144°30' East
thence to a point latitude 13°00' South, longi-
tude 144°00' East
thence to a point latitude 15°00' South, longi-
tude 146°00' East
thence to a point latitude 18°00' South, longi-
tude 147°00' East
thence to a point latitude 21°00' South, longi-
tude 153°00' East
thence to a point on the coast of Australia in
latitude 24°42' South, longitude 153°15' East."
(2) Section 3 (33 U.S.C. 1002) is amended to read
as follows:
"SEC. 3. Subject to the provisions of sections
4 and 5, the discharge of oil or oily mixture from a
ship is prohibited unless —
(a) the ship is proceeding enroute; and
(b) the instantaneous rate of discharge
of oil content does not exceed 60 liters per mile, and
(c) (1) for a ship, other than a tanker—
(i) the oil content of the dis-
charge is less than 100 parts per 1,000 parts of the
mixture, and
(ii) the discharge is made as
far as practicable from land;
(2) for a tanker, except dischargers
from machinery space bilges which shall be governed by
the above provisions for ships other than tankers, —
(i) the total quantity of oil
discharged on a ballast voyage does not exceed 1/15,000
of the total cargo-carrying capacity, and
(ii) the tanker is more than 50
miles from the nearest land,,".
(3) Section 4 (33 U.S.C. 1003) is amended —
(A) by changing the word "shall" to "does" in
the introductory clause thereof;
(B) by changing the semicolon to a period at
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554 LEGAL COMPILATION—SUPPLEMENT n
the end of subsection (b) thereof; and
(C) by repealing subsection (c) thereof.
(4) Section 5 (33 U.S.C. 1004) is amended to read
as follows:
"SEC. 5 Section 3 does not apply to the dis-
charge of tanker ballast from a cargo tank which, since
the cargo was last carried therein, has been so cleaned
that any effluent therefrom, if it were discharged from
a stationary tanker into clean calm water on a clear day,
would produce no visible traces of oil on the surface of
the water.".
(5) Insert a new section 6, to read as follows,
following section 5:
"SEC. 6. (a) Every tanker to which this Act
applies and built in the United States and for which the
building contract is placed on or after the effective
date of this section shall be constructed in accordance
with the provisions of Annex C to the convention, re-
lating to tank arrangement and limitation of tank size.
(b) Every tanker to which this Act
applies and built in the United States and for which
the building contract is placed, or in the absence of a
building contract the keel of which is laid or which is
at a similar state of construction, before the effective
date of this section, shall, within two years after that
date, comply with the provisions of Annex C to the con-
vention if
(1) the delivery of the tanker
is after 1 January 1977; or
(2) the delivery of the tanker
is not later than 1 January 1977 and the building con-
tract is placed after 1 January 1972, or in cases where
no building contract has previously been placed, the
keel is laid or the tanker is at a similar stage of con-
struction, after 30 June 1972.
(c) A tanker required under this
section to be constructed in accordance with Annex C
to the convention and so constructed shall carry on
board a certificate issued by the Secretary attesting
to that compliance. A tanker which is not required to
be constructed in accordance with Annex C to the con-
vention shall carry on board a certificate to that ef-
fect issued by the Secretary, or if a tanker does comply
with Annex C though not required to do so, she may carry
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GUIDELINES AND REPORTS 555
on board a certificate issued by the Secretary attesting
to that compliance. Tankers under the flag of the United
States are prohibited from engaging in domestic or foreign
trade without an appropriate certificate issued under
this section.
(d) Certificates issued to foreign
tankers pursuant to the convention by other nations
party thereto shall be accepted by the Secretary as of
the same force as certificates issued by him. If the
Secretary has clear grounds for believing that a foreign
tanker required under the convention to be constructed
in accordance with Annex C entering ports of the United
States or using off-shore terminals under United States
control does not in fact comply with Annex C, he may
request the Secretary of State to seek consultation with
the Government with which the tanker is registered. If
after consultation or otherwise, the Secretary is satis-
fied that such tanker does not comply with Annex C, he may
for this reason deny such tanker access to ports of the
United States or to off-shore terminals under United States
control until such time as he is satisfied that the tanker
has been brought into compliance.
(e) If the Secretary is satisfied
that any other foreign tanker which, if registered in a
country party to the convention, would be required to be
constructed in accordance with Annex C, does not in fact
comply with the standards relating to tank arrangement
and limitation of tank size of Annex C, then he may deny
such tanker access to ports of the United States or to
off-shore terminals under United States control."
(6) Section 6 (33 U.S.C. 1005) is renumbered sec-
tion 7 and is amended to read as follows:
"SEC. 7. (a) Any person who willfully dis-
charges oil or oily mixture from a ship in violation of
this Act or the regulations thereunder shall be fined
not more than $10,000 for each violation or imprisoned
not more than one year, or both.
(b) in addition to any other penalty
prescribed by law any person who willfully or negligently
discharges oil or oily mixture from a ship in violation
of this Act or any regulation thereunder shall be liable
to a civil penalty of not more than $10,000 for each
violation and any person who otherwise violates this Act
or any regulation thereunder shall be liable to a civil
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556 LEGAL COMPILATION—SUPPLEMENT n
penalty of not more than $5,000 for each violation.
(c) A ship from which oil or oily
mixture is discharged in violation of this Act or any
regulation thereunder is liable for any pecuniary
penalty under this section and may be proceeded against
in the district court of any district in which the ves-
sel may be found.
(d) The Secretary may assess any
civil penalty incurred under this Act or any regulation
thereunder and, in his discretion, remit, mitigate, or
compromise any penalty. No penalty may be assessed un-
less the alleged violator shall have been given notice
and the opportunity to be heard on the alleged violation.
Upon any failure to pay a civil penalty assessed under
this Act, the Secretary may request the Attorney General
to institute a civil action to collect the penalty. In
hearing such action, the district court shall have
authority to review the violation and the assessment
of the civil penalty de novo."
(7) Section 7 is renumbered section 8.
(8) Section 8 (33 U.S.C. 1007) is renumbered sec-
tion 9 and is amended — *
(A) in subsection (a) by amending the first
sentence to read as follows:
"In the administration of sections 1-12 of
this Act, the Secretary may utilize by agreement, with or
without reimbursement, law enforcement officers or other
personnel, facilities or equipment of other Federal
agencies or the States.";
(B) in subsection (a) by amending the first
part of the second sentence which precedes the first use
of the word "shall" to read:
"For the better enforcement of the provisions
of said sections, officers of the Coast Guard and other
persons employed by or acting under the authority of the
Secretary";
(C) in subsection (a) by deleting from the
last sentence thereof the words "and of the Bureau of
Customs" and the words "in a prohibited zone or in a port
of the United States"; and
(D) in subsection (b) by deleting in the first
sentence thereof the words "of the Department in which
the Coast Guard is operating" and by deleting the second
sentence thereof in its entirety.
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GUIDELINES AND REPORTS 557
(9) Section 9 (33 U.S.C. 1008) is renumbered sec-
tion 10 and is amended —
(A) by amending subsection (c) to read as fol-
lows:
"(C) The oil record book shall be completed —
on each occasion, on a tank-to-tank basis, whenever any
of the following operations takes place in the ship:
(1) for tankers:
(i) loading of oil cargo;
(ii) transfer of oil cargo during
voyage;
(iii)discharge of oil cargo;
(iv) ballasting of cargo tanks;
(v) cleaning of cargo tanks;
(vi) discharge of dirty ballast;
(vii)discharge of water from slop
tanks;
(viii)disposal of residues;
(ix) discharge overboard of bilge
water containing oil which has accumulated in machinery
spaces while in port, and the routine discharge at sea
of bilge water containing oil unless the latter has been
entered in the appropriate log book;
(2) for ships other than tankers:
(i) ballasting or cleaning of bunker
fuel tanks;
(ii) discharge of dirty ballast or
cleaning water from bunker fuel tanks;
(iii)disposal of residues;
(iv) discharge overboard of bilge
water containing oil which has accumulated in machinery
spaces while in port, and the routine discharge at sea
of bilge water containing oil unless the latter has been
entered in the appropriate log book. In the event of
such discharge or escape of oil or oily mixture as is re-
ferred to in section 4 of this Act, a statement shall be
made in the oil record book of the circumstances of, and
reason for, the discharge or escape.";
(B) by changing the figure "9" in subsection
(d) to read "10"; and
(C) by repealing subsection (f).
(10) Section 10 (33 U.S.C. 1009) is renumbered sec-
tion 11 and is amended to make the sectional enumeration
read as follows:
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558 LEGAL COMPILATION—SUPPLEMENT n
"Sections 3, 4, 5, 6, 7, 9, and 10."
(11) Section 11 is renumbered section 12 and is
amended by deleting the words "any prohibited zone" in
subsection (b) thereof and by substituting therefor the
words "violation of the convention but outside the ter-
ritorial sea of the United States".
(12) Section 12 (33 U.S.C. 1011) is repealed.
(13) Sections 14 and 15 are renumbered sections 13
and 14, respectively,,
(14) Section 16 (33 U.S.C. 1014) is renumbered sec-
tion 15 and is amended by adding between the words "pro-
visions of" and the word "the" the words "section 311 of",
and by deleting the words "Oil Pollution Act, 1924,"
and substituting therefor the words "Federal Water Pol-
lution Control Act,",
(15) Section 17 (33 U.S.C. 1015) is repealed.
SEC. 3. (a) Except as provided in subsection
(c) of this Section, this amending Act is effective upon
the date of its enactment or upon the date amendments to
the International Convention for the Prevention of the
Pollution of the Sea by Oil, 1954, as amended, adopted
by the Assembly of the Inter-Governmental Maritime Con-
sultative Organization on October 21, 1969, October 12,
1971, and October 15, 1971, are ratified or accepted with
the advice and consent of the Senate of the United States,
whichever is the later date.
(b) Any rights or liabilities
existing on the effective date of this Act shall not be
affected by the enactment of this Act. Any regulations
or procedures promulgated or effected pursuant to the
Oil Pollution Act, 1961, as previously amended, remain
in effect until modified or superceded under the authori-
ty of the Oil Pollution Act, 1961, as amended by this
Act. Any reference to the International Convention for
the Prevention of the Pollution of the Sea by Oil, 1954,
in any law or regulation shall be deemed to be a refer-
ence to the convention as revised or amended by the
latest amendments in respect of which the United States
has deposited an instrument of ratification or acceptance.
(c) Notwithstanding the foregoing
provisions of this Section, subsection (d) and (e) of
Section 6 of the Oil Pollution Act, 1961, as amended by
Section 2 of this bill, shall be effective upon the date
of their enactment or upon the date the International
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GUIDELINES AND REPORTS 559
Convention for the Prevention of Pollution of the Sea by
Oil, 1954, as amended by the amendments adopted by the
Assembly of the Inter-Governmental Maritime Consultative
Organization on October 15, 1971, enters into force pur-
suant to Article XVI of that convention as amended,
whichever is later; and no authority shall be exercised
pursuant to Article VI bis (3) and (4) of such amend-
ments prior to the effective date of such subsections.
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560 LEGAL COMPILATION—SUPPLEMENT n
COMPARATIVE TYPE SHOWING CHANGES IN
EXISTING LAW MADE BY PROPOSED BILL
(Matter proposed to be deleted is enclosed in brackets;
new matter is underlined).
OIL POLLUTION ACT, 1961 (33 UoS.C. 1001-1015)
Public Law 87-167; 75 Stat. 402 as amended
P.L. 89-551; 80 Stat. 372. An Act to implement the pro-
visions of the International Convention for the Prevention
of the Pollution of the Sea by Oil, 1954.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assem-
bled. That: This Act, to implement the provisions of the
International Convention for the Prevention of the Sea by
Oil, 1954, as amended, may be cited as the "Oil Pollution
Act, 1961, as amended".
SEC. 2. DEFINITIONS.—As used in this Act, unless
the context otherwise requires—
(a) The term "convention" means the Interna-
tional Convention for the Prevention of the Pollution of
the Sea by Oil, 1954, as amended;
(b) The term "discharge" in relation to oil or
to an oily mixture means any discharge or escape howsoever
caused;
(c) The term "instantaneous rate of discharge
of oil content" means the rate of discharge of oil in
liters per hour at any instant divided by the speed of the
ship in knots at the same instant;
[(c)] (d) The term "heavy diesel oil" means
[marine] diesel oil, other than those distillates of which
more than 50 per centum, by volume distills at a tempera-
ture not exceeding three hundred and forty degrees centi-
grade when tested by American Society for the Testing of
Materials standard method [D. 86/59] D. 86-71 or any later
revi sions subject to regulatory acceptance by the Coast
Guard.
[(<3)] (e) The term "mile" means a nautical mile
of six thousand and eighty feet or one thousand eight hun-
dred and fifty-two meters;
[(e)] (f) The term "oil" means crude oil, fuel
oil, heavy diesel oil, and lubricating oil, and "oily"
shall be construed accordingly [.]^[An] an "oily mixture"
means a mixture with [an] any oil content; [of one hun-
dred parts or more in one million parts of mixture.]
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GUIDELINES AND REPORTS 561
[(f)l (g) The term "person" means an individual,
partnership, corporation, or association; and any owner,
operator, agent, master, officer, or employee of a ship;
[(g) The term "prohibited zones" means the
zones described in section 12 of this Act as modified by
notices, if any, of extension or reduction issued by the
Secretary;]
(h) The term "Secretary" means the Secretary
of the [Army;] department in which the Coast Guard is
operating;
(i) The term "ship", subject to the exceptions
provided in paragraph (1) of this subsection, means any
seagoing vessel of any type whatsoever of American regis-
try or nationality, including floating craft, whether
self-propelled or towed by another vessel making a sea
voyage; and "tanker", as a type included within the term
"ship", means a ship in which the greater part of the
cargo space is constructed or adapted for the carriage of
liquid cargoes in bulk arid which is not, for the time
being, carrying a cargo other than oil in that part of its
cargo space.
(1) The following categories of vessels
are excepted from all provisions of this Act:
(i) tankers of under one hundred and
fifty tons gross tonnage and other ships of under five
hundred tons gross tonnage.
(ii) ships for the time being engaged
in the whaling industry when actually employed on whaling
operations.
(iii)ships for the time being naviga-
ting the Great Lakes of North America and their con-
necting and tributary waters as far east as the lower
exit of Saint Lambert lock at Montreal in the Province of
Quebec, Canada.
(iv) naval ships and ships for the
time being used as naval auxiliaries.
(j) The term "from the nearest land" means
from the baseline from which the territorial sea of the
territory in question is established in accordance with
the Geneva Convention on the Territorial Sea and the Con-
tiguous Zone, 1958; except that, for the purpose of this
Act "from the nearest land" off the northeastern coast of
Australia means a line drawn from a point on the coast of
Australia in latitude 11° south, longitude 142°08' East
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LEGAL COMPILATION—SUPPLEMENT n
to a point in latitude 10°35' South, longitude 141°55'
East—
thence to a point latitude 10°00' South, longi-
tude 142°00' East
thence to a point latitude 9°10' South, longi-
tude 143°52' East
thence to a point latitude 9°00' South, longi-
tude 144°30' East
thence to a point latitude 13°00' South, longi-
tude 144°00' East
thence to a point latitude 15°00' South, longi-
tude 146°00' East
thence to a point latitude 18°00' South, longi-
tude 147°00' East
thence to a point latitude 21°00' South, longi-
tude 153°00' East
thence to a point on the coast of Australia in
latitude 24°42' South, longitude 153°15' East.
SEC. 3. Subject to the provisions of sections 4
and 5, [it shall be unlawful for any person to discharge
oil or oily mixture from:
[(a) a tanker within any of the prohibited zones.
[(b) a ship, other than a tanker, within any
of the prohibited zones, except when the ship is proceeding
to a port not provided with facilities adequate for the
reception, without causing undue delay, it may discharge
such residues and oily mixture as would remain for dis-
posal if the bulk of the water had been separated from the
mixture: Provided, such discharge is made as far as prac-
ticable from land.
[(c) a ship of twenty thousand tons gross tonnage
or more, including a tanker, for which the building con-
tract is placed on or after the effective date of this
Act. However, if in the opinion of the master, special
circumstances make it neither reasonable nor practicable
to retain the oil or oily mixture on board, it may be dis-
charged outside the prohibited zones. The reasons for
such discharge shall be reported in accordance with the
regulations prescribed by the Secretary.] the discharge
of oil or oily mixture from a ship is prohibited unless—
(a) the ship is proceeding enroute; and
(b) the instantaneous rate of discharge of oil
content does not exceed 60 liters per mile, and
(c) (1) for a ship, other than a tanker—
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GUIDELINES AND REPORTS 563
(i) the oil content of the discharge
is less than 100 parts per 1,000,000 parts of the mixture,
and
(ii) the discharge is made as far as
practicable from land;
(2) for a tanker, except discharges from
machinery space bilges which shall be governed by the
above provisions for ships other than tankers,—
(i) the total quantity of oil dis-
charged on a ballast voyage does not exceed 1/15,000 of
the total cargo-carrying capacity, and
(ii) the tanker is more than 50 miles
from the nearest land.
SEC. 4. Section 3 [shall] does not apply to—
(a) the discharge of oil or oily mixture from
a ship for the purpose of securing the safety of a ship,
preventing damage to a ship or cargo, or saving life at
sea; or
(b) the escape of oil, or of oily mixture, re-
sulting from damage to a ship or unavoidable leakage,
if all reasonable precautions have been taken after the
occurrence of the damage or discovery of the leakage for
the purpose of preventing or minimizing the escape [;]_._
[(c) the discharge of residue arising from the
purification or clarification of fuel oil or lubricating
oil: Provided, That such discharge is made as far from
land as practicable.]
SEC. 5. Section 3 [shall] does not apply to the
discharge [from the bilges of a ship of an oily mixture
containing no oil other than lubricating oil which has
drained or leaked from machinery spaces.] of tanker
ballast from a cargo tank which, since the cargo was last
carried therein, has been so cleaned that any effluent
therefrom, if it were discharged from a stationary tanker
into clean calm water on a clear day, would produce no
visible traces of oil on the surface of the water.
SEC. 6.
(a) Every tanker to which this Act applies
and built in the United States and for which the building
contract is placed on or after the effective date of this
section shall be constructed in accordance with the pro-
visions of Annex C to the convention, relating to tank
arrangement and limitation of tank size.
(b) Every tanker to which this Act applies and
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564 LEGAL COMPILATION—SUPPLEMENT n
built in the United States and for which the building con-
tract is placed, or in the absence of a building contract
the keel of which is laid or which is at a similar state
of construction, before the effective date of this section,
shall, within two years after that date, comply with the
provisions of Annex c to the convention if
(1) the delivery of the tanker is after
1 January 1977; or
(2) the delivery of the tanker is not
later than 1 January 1977 and the building contract is
placed after 1 January 1972, or in cases where no building
contract has previously been placed, the keel is laid or
the tanker is at a similar stage of construction, after
30 June 1972.
(c) A tanker required under this section to be
constructed in accordance with Annex C to the convention
and so constructed shall carry on board a certificate is-
sued by the Secretary attesting to that compliance. A
tanker which is not required to be constructed in accord-
ance with Annex C to the convention shall carry on board
a certificate to that effect issued by the Secretary, or
if a tanker does comply with Annex C though not required
to do so, she may carry on board a certificate issued
by the Secretary attesting to that compliance. Tankers
under the flag of the United States are prohibited from
engaging in domestic or foreign trade without an appro-
priate certificate issued under this section.
(d) Certificates issued to foreign tankers
pursuant to the convention by other nations party thereto
shaj.1 be accepted by the Secretary as of the same force
as certificates issued by him. If the Secretary has clear
grounds for believing that a foreign tanker required
under the convention to be constructed in accordance with
Annex C entering ports of the United States or using off-
shore terminals under United States control does not in
fact comply with Annex C, he may request the Secretary of
State to seek consultation with the government with which
such tanker is registered. If, after consultation or other-
wise, the Secretary is satisfied that the tanker does not
comply with Annex C, he may for this reason deny such
tanker access to ports of the United States or to off-
shore terminals under United States control until such
time as he is satisfied that the tanker has been brought
into compliance.
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GUIDELINES AND REPORTS 565
(e) If the Secretary is satisfied that any
other foreign tanker which, if registered in a country
party to the convention, would be required to be construct-
ed in accordance with Annex C, does not in fact comply
with the standards relating to tank arrangement and limi-
tation of tank size of Annex C, then he may deny such
tanker access to ports of the United States or to o_ff-
shore terminals under United States control.
SEC. [6] 7. [Any person who violates any pro-
vis inr> of the Act, except section 8(b) and 9, or any reg-
ulations prescribed in pursuance thereof, is guilty of
a misdeameanor, and upon conviction shall be punished by
a fine not exceeding $2,500 nor less than $500, or by im-
prisonment not exceeding one year, or by both such fine
and imprisonment, for each offense. And any ship (other
than a ship owned and operated by the United States) from
which oil is discharged in violation of this Act, or any
regulation prescribed in pursuance thereof, shall be
liable for the pecuniary penalty specified in this section,
and clearance of such ship from a port of the United States
may be withheld until the penalty is paid, and said pen-
alty shall constitute a lien on such ship which may be
recovered in proceedings by libel in rem in the district
court of the United States for any district within which
the ship may be.]
(a) Any person who willfully discharges oil
or oily mixture from a ship in violation of this Act or
the regulations thereunder shall be fined not more than
$10,000 for each violation or imprisoned not more than one
year or both.
(b) In addition to any other penalty prescribed
by law any person who willfully or negligently discharges
oil or oily mixture from a ship in violation of this
Act or any regulation thereunder shall be liable to a civil
penalty of not more than $10,000 for each violation, and
any person who otherwise violates this Act or any regula-
tion thereunder shall be liable to a civil penalty of
not more than $5000 for each violation.
(c) A ship from which oil or oily mixture is
discharged in violation of this Act or any regul-'
thereunder is liable for any pecuniary penalty
section and may be proceeded against in the distrj.^
court of any district in which the vessel may be found.
(d) The Secretary may assess any civil penalty
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566 LEGAL COMPILATION—SUPPLEMENT n
incurred under this Act or any regulation thereunder and,
in his discretion, remit, mitigate, or compromise any
penalty. No penalty may be assessed unless the alleged
violator shall have been given notice and the opportunity
to be heard on the alleged violation. Upon any failure
to pay a civil penalty assessed under this Act, the
Secretary may request the Attorney General to institute
a civil action to collect the penalty. In hearing such
action, the district court shall have authority to review
the violation and the assessment of the civil penalty
de novOo
SEC. [7] 8. The Coast Guard may, subject to the
provisions of section 4450 of the Revised Statutes, as
amended (46 U.S.C. 239), suspend or revoke a license
issued to the master or other licensed officer of any
ship found violating the provisions of this Act or the
regulations issued pursuant thereto.
SEC. [8] 9. In the administration of sections 1-12
of this Act, the Secretary may [make use of the organiza-
tion, equipment, and agencies, including engineering,
clerical, and other personnel, employed under his direc-
tion in the improvement of rivers and harbors and in the en-
forcement of laws for the improvement of rivers and harbors
and in the enforcement of laws for the preservation and pro-
tection of navigable waters] utilize by agreement, with or
without reimbursement, law enforcement officers or other
personnel, facilities or equipment of other Federal
agencies or the States. For the better enforcement of
the provisions of said sections, [the officers and
agents of the United States in charge of river and harbor
improvements and persons employed under them by authority
of the Secretary, and officers and employees of the Bureau
of Customs and the Coast Guard] officers of the Coast
Guard and other persons employed by or acting under the
authority of the Secretary shall have power and authority
and it shall be their duty to swear out process and to
arrest and take into custody, with or without process,
any person who may violate any of said provisions: Pro-
vided, That no person shall be arrested without process
for a violation not committed in the presence of some one
of the aforesaid officials: And provided further, That
whenever any arrest is made under the provisions of said
sections the person so arrested shall be brought forth-
with before a commissioner, judge, or court of the United
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GUIDELINES AND REPORTS 567
States for examination of the offenses alleged against
him; and such commissioner, judge, or court shall proceed
in respect thereto as authorized by law in cases of crimes
against the United States. Representatives of the
Secretary [and of the Bureau of Customs] and Coast Guard
of the United States may go on board and inspect any ship
[in a prohibited zone or in a port of the United States]
as may be necessary for enforcement of this Act.
(b) To implement article VII of the convention,
ship fittings and equipment, and operating requirements
thereof, shall be in accordance with regulations prescribed
by the Secretary. [of the Department in which the Coast
Guard is operating. Any person found violating these reg-
ulations shall, in addition to any other penalty prescribed
by law, be subject to a civil penalty not in excess of
$100.]
SEC. [9] 10. (a) The Secretary shall have printed
separate oil record books containing instructions and
spaces for inserting information in the form prescribed
by the Convention, which shall be published in regulations
prescribed by the Secretary.
(b) If subject to this Act, every ship using
oil fuel and every tanker shall be provided, without
charge, an oil record book which shall be carried on board.
The provisions of Section 140 of Title 5, United States
Code, shall not apply. The ownership of the booklet
shall remain in the United States Government. This book
shall be available for inspection as provided in this Act
and for surrender to the United States Government pursuant
to regulations of the Secretary.
[(c) The oil record book shall be completed
on each occasion, whenever any of the following operations
takes place in the ship:
[(1) ballasting of and discharge of bal-
last from cargo tanks of tankers;
[(2) cleaning of cargo tanks of tankers;
[(3) settling in slop tanks and discharge
of water from tankers;
[(4) disposal from tankers of oily residues
from slop tanks or other sources;
[(5) ballasting, or cleaning during voyage,
of bunker fuel tanks of ships other than tankers;
[(6) disposal from ships other than tankers
of oily residues from bunker fuel tanks or other sources;
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568 LEGAL COMPILATION—SUPPLEMENT n
[(7) accidental or other exceptional dis-
charges or escapes of oil from tankers or ships other than
tankers.]
(c) The oil record book shall be completed on
each occasion, on a tank-to-tank basis, whenever any
of the following takes place in the ship;
(1) for tankers;
(i) loading of oil cargo;
(ii) transfer of oil cargo during
voyage;
(iii)discharge of oil cargo;
(iv) ballasting of cargo tanks;
(v) cleaning of cargo tanks;
(vi) discharge of dirty ballast;
(vii)discharge of water from slop
tanks;
(viii)disposal of residues;
(ix) discharge overboard of bilge
water containing oil which has accumulated in machinery
spaces while in port, and the routine discharge at sea of
bilge water containing oil unless the latter has been
entered in the appropriate log book;
(2) for ships other than tankers:
(i) ballasting or cleaning of bunker
fuel tanks;
(ii) discharge of dirty ballast or
cleaning water from bunker fuel tanks;
(iii)disposal of residues;
(iv) discharge overboard of bilge
water containing oil which has accumulated in machinery
spaces while in port, and the routine discharge at sea of
bilge water containing oil unless the latter has been
entered in the appropriate log book.
In the event of such discharge or escape of oil or oily
mixture, as is referred to in sectionfs 3(c) and] 4 of
this Act, a statement shall be made in the oil record book
of the circumstances of, and reason for, the discharge or
escape.
(d) Each operation described in section [9] 10
(c) of the Act shall be fully recorded without delay in
the oil record book so that all the entries in the book
appropriate to that operation are completed. Each page of
the book shall be signed by the officer or officers in
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GUIDELINES AND REPORTS 569
charge of the operations concerned and, when the ship is
manned, by the master of the ship.
(e) Oil record books shail be kept in such
manner and for such length of time as set forth in the
regulations prescribed by the Secretary.
[(f) If any person fails to comply with the re-
quirements imposed by or under this section, he shall be
liable on conviction to a fine not exceeding $1,000 nor
less than $500 and if any person makes an entry in any
records kept in accordance with this Act or regulations
prescribed thereunder by the Secretary which is to his
knowledge false or misleading in any material particular,
he shall be liable on conviction to a fine not exceeding
$1,000 nor less than $500 or imprisonment for a term not
exceeding six months, or both.]
SEC. [10] 11. The Secretary may make regulations
for the administration of sections 3, 4, 5, 6_, 7 [8(a)], 9
and [12] .10.
SEC. [11] 12. (a) The Secretary may make regula-
tions empowering such persons as may be designated to go
on board any ship to which the convention applies, while
the ship is within the territorial jurisdiction of the
United States, and to require production of any records
to be kept in accordance with the convention.
(b) Should evidence be obtained that a ship reg-
istered in another country party to the convention has
discharged oil in violation of the convention but outside
the territorial sea of the United States [any prohibited
zone], such evidence should be forwarded to the State
Department for action in accordance with article X of
the convention.
[SEC. 12. Prohibited zones, publications of reduction
or extension of zones
[(a) All sea areas within fifty miles from the
nearest land shall be prohibited zones, subject to exten-
sions or reduction effectuated in accordance with the
terms of the Convention, which shall be published in reg-
ulations prescribed by the Secretary.
[(b) With respect to the reduction or extension
of the zones described under the terms of the Convention,
the Secretary shall give notice thereof by publication of
such information in Notices to Mariners issued by the
United States Coast Guard and United States Navy.]
SEC. [14] 13. There is authorized to be appropriated
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570 LEGAL COMPILATION—SUPPLEMENT n
such sums as may be necessary to carry out the provisions
of this Act.
SEC. [15] 14. If a provision of this Act or the
application of such provision to any person or circum-
stances shall be held invalid, the remainder of the Act
and the application of such provision to persons or cir-
cumstances other than those to which it is held invalid
shall not be affected thereby.
SEC. [16] 15. Nothing in this Act or in regulations
issued hereunder shall be construed to modify or amend
the provisions of section 311 of the [Oil pollution Act,
1924,] Federal Water Pollution Control Act, or of section
89 of Title 14.
[SEC. 17. (a) This Act shall become effective upon the
date of its enactment or upon the date the amended
Convention becomes effective as to the United States,
whichever is the later date.
[(b) Any rights or liabilities existing on the
effective date of this Act shall not be affected by the
enactment of this Act. Any procedures or rules or regu-
lations in effect on the effective date of this Act shall
remain in effect until modified or superseded under the
authority of the Act. Any reference in any other law or
rule or regulation prescribed pursuant to law to the "In-
ternational Convention for the Prevention of the Pollution
of the Sea by Oil, 1954," shall be deemed to be a refer-
ence to that Convention as revised by the "amendments of
the International Convention for the Prevention of Pol-
lution of the Sea by Oil, 1954," which were adopted by a
Conference of contracting Governments convened at London
on April 11, 1962. Any reference in any other law or
rule or regulation prescribed pursuant to law to the "Oil
Pollution Act, 1961," approved August 30, 1961, shall be
deemed to be a reference to that Act as amended by this
Act.]
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GUIDELINES AND REPORTS 571
THE SECRETARY OF TRANSPORTATION
WASHINGTON, D.C. 20590
February 15, 1973
Dear Mr. [President/Speaker]:
There is transmitted herewith a proposed bill,
"To implement the International Convention Re-
lating to Intervention on the High Seas in Cases
of Oil Pollution Casualties, 1969."
The proposed bill would, as stated in the title, imple-
ment the Convention, which was ratified by the Senate on
September 20, 1971. The Convention permits a coastal
nation to take whatever action it deems necessary to pre-
vent, mitigate or eliminate a threat of oil pollution
resulting from a maritime accident beyond that coastal
state's territorial sea. That authority is subject to
reasonable safeguards. The Convention addresses interna-
tionally some of the types of issues which arose in 1967
following the grounding of the Torrey Canyon off the
southeast coast of England.
The bill places the authority for action in the Secretary
of the department in which the Coast Guard is operating.
In appropriate circumstances, actions could be taken
against United States and foreign vessels. Exercise of
that authority is conditioned by the requirement for an
express determination by the Secretary that there exists
a grave and imminent danger to the coastline or related
interests of the United States from pollution or threat
of pollution of the sea by oil. The bill provides neces-
sary regulatory authority for the Secretary and sanctions
for the effective enforcement of that authority.
The Secretary would be authorized to use the revolving
fund established pursuant to the Federal Water Pollution
Control Act as one means of funding extraordinary Federal
activities under the bill. The revolving fund is now
available for Federal clean-up of oil and related activi-
ties, in areas subject to United States jurisdiction.
Activities on the high seas under this bill will be
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572 LEGAL COMPILATION—SUPPLEMENT n
similar.
No effort is made in the Convention or this bill to
articulate th^ various types of actions which could be
taken. It not possible to define all the possible
incidents be^^use their specific nature may become known
only as an emergent situation develops. Under those
circumstances, the full exercise of Executive Branch
discretion should be available. At the same time, how-
ever, the Convention and the proposed bill contain a
number of constraints to assure that the Secretary's
actions will be reasonable under the circumstances. Some
specific criteria upon which actions must be based are
included.
It would be appreciated if you would lay the proposed
bill before the [Senate/House of Representatives]. A
similar proposal has been submitted to the [President
of the Senate/Speaker of the House of Representatives].
The Office of Management and Budget has advised that en-
actment of this proposal would be consistent with the
Administration's objectives.
Sincerely,
/s/Claude Brinegar
Honorable Spiro T. Agnew
President of the Senate
Washington, B.C. 20510
Honorable Carl Albert
Speaker of the House of Representatives
Washington, D.C. 20515
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GUIDELINES AND REPORTS 573
S. 1070
A BILL
To implement the International Convention Relating
to Intervention on the High Seas in Cases of Oil
Pollution Casualties, 1969.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled. That this Act may be cited as the "Interveni-
tion on the High Seas Act".
Sec. 2. As used in this Act —
(1) "Ship" means —
(A) any sea going vessel of any type whatso-
ever, and
(B) any floating craft, except an installa-
tion or device engaged in the exploration and
exploitation of the resources of the sea-bed
and the ocean floor and the subsoil thereof;
(2) "Oil" means crude oil, fuel oil, diesel oil
and lubricating oil;
(3) "Convention" means the International Conven-
tion Relating to Intervention on the High Seas in Cases
of Oil Pollution Casualties, 1969;
(4) "Secretary" means the Secretary of the depart-
ment in which the Coast Guard is operating; and
(5) "United States" means the States, the District
of Columbia, the Commonwealth of Puerto Rico, the Canal
Zone, Guam, American Samoa, the Virgin Islands and the
Trust Territory of the Pacific Islands.
Sec. 3. Whenever a ship collision, stranding or other
incident of navigation, or other occurrence on board a
ship or external to it resulting in material damage or
imminent threat of material damage to the ship or her
cargo creates, as determined by the 'Secretary, a grave
and imminent danger to the coastline or related interests
of the United States from pollution or threat of pollution
of the sea by oil which may reasonably be expected to re-
sult in major harmful consequences, the Secretary may,
except as provided for in section 10, without liability
for any damage to the owners or operators of the ship, to
her cargo or crew, or to underwriters or other parties
interested therein, take measures on the high seas, in
accordance with the provisions of the Convention and this
'Act, to prevent, mitigate or eliminate that danger.
Sec. 4. In determining whether there is grave and
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574 LEGAL COMPILATION—SUPPLEMENT n
imminent danger of major harmful consequences to the
coastline or related interests of the United States,
the Secretary shall consider the interests of the United
States directly threatened or affected including but not
limited to, fish, shellfish and other living marine re-
sources, wildlife, coastal zone and estuarine activities,
and public and private shorelines and beaches.
Sec. 5. Upon a determination under section 3 of this
Act of a grave and imminent danger to the coastline or
related interests of the United States, the Secretary
may —
(1) coordinate and direct all public and private
efforts directed at the removal or elimination of the
threatened pollution damage;
(2) directly or indirectly undertake the whole or
any part of any salvage or other action he could require
or direct under subsection (1) of this section; and
(3) remove, and, if necessary, destroy the ship
and cargo which is the source of the danger.
Sec. 6. Before taking any measure under section 5 of
this Act, the Secretary shall —
(1) consult, through the Secretary of State, with
other countries affected by the marine casualty, and par-
ticularly with the flag country of any ship involved;
(2) notify without delay the Administrator of the
Environmental Protection Agency and any other persons
known to the Secretary, or of whom he later becomes aware,
who have interests which can reasonably be expected to be
affected by any proposed measures; and
(3) consider any views submitted in response to
the consultation or notification required by subsections
(]) and (2) of this section.
Sec. 7. In cases of extreme urgency requiring measures
to be taken immediately, the Secretary may take those
measures rendered necessary by the urgency of the situa-
tion without the prior consultation or notification as
required by section 6 of this Act or without the continua-
tion of consultations already begun.
Sec. 8. (a) Measures directed or conducted under this
Act shall be proportionate to the damage, actual or
threatened, to the coastline or related interests of the
United States and may not go beyond what is reasonably
necessary to prevent, mitigate, or eliminate that damage.
(b) In considering whether measures are pro-
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GUIDELINES AND REPORTS 575
portionate to the damage the Secretary shall, among other
things, consider —
(1) the extent and probability of immi-
nent damage if those measures are not
taken;
(2) the likelihood of effectiveness of
those measures; and
(3) the extent of the damage which may
be caused by those measures.
Sec. 9. In the direction and conduct of measures
under this Act the Secretary shall use his best endeavors
to —
(1) assure the avoidance of risk to human life;
(2) render all possible aid to distressed persons,
including facilitating repatriation of ship's crews; and
(3) not unnecessarily interfere with rights and
interests of others, including the flag state of any ship
involved, other foreign states threatened by damage, and
persons otherwise concerned.
Sec. 10. (a) The United States shall be obligated to
pay compensation to the extent of the damage caused by
measures which exceed those reasonably necessary to
achieve the end mentioned in section 3.
(b) Actions against the United States seeking
compensation for any excessive measures may be brought
in the United States Court of Claims, in any District
Court of the United States, and in those courts enumerated
in section 460 of title 28, United States Code. For pur-
poses of this Act, American Samoa shall be included withir.
the judicial district of the District Court of the United
States for the District of Hawaii, and the Trust Territory
of the Pacific Islands shall be included within the ju-
dicial districts of both the District Court of the United
States for the District of Hawaii and the District Court
of Guam.
Sec. 11. The Secretary of State shall notify without
delay foreign states concerned, the Secretary-General of
the Inter-Governmental Maritime Consultative Organization,
the persons affected by measures taken under this Act.
Sec. 12. (a) Any person who —
(1) willfully violates a provision of this Act
or a regulation issued thereunder; or
(2) willfully refuses or fails to comply with any
lawful order or direction given pursuant to this Act; or
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576 LEGAL COMPILATION—SUPPLEMENT n
(3) willfully obstructs any person who is acting
in compliance with an order or direction under this Act,
shall be fined not more than $10,000 or imprisoned not
more than one year, or both.
(b) In a criminal proceeding for an offense
under paragraphs (1) or (2) of subsection (a) of this
section it shall be a defense for the accused to prove
that he used all due diligence to comply with any order
or direction or that he had reasonable cause to believe
that compliance would have resulted in serious risk to
human life.
Sec. 13. (a) The Secretary, in consultation with the
Secretary of State and the Administrator of the Environ-
mental Protection Agency, may nominate individuals to
the list of experts provided for in Article III of the
Convention.
(b) The Secretary of State, in consultation
with the Secretary, shall designate or nominate, as ap-
propriate and necessary, the negotiators, conciliators,
or arbitrators provided for by the Convention and the
Annexes thereto.
Sec. 14. No measures may be taken under authority of
this Act against any warship or other ship owned or
operated by a country and used, for the time being, only
on government non-commercial service.
Sec. 15. This Act shall be interpreted and administered
in a manner consistent with the Convention and other inter-
national law. Except as specifically provided, nothing
in this Act may be interpreted to prejudice any otherwise
applicable right, duty, privilege or immunity or deprive
any country or person of any remedy otherwise applicable.
Sec. 16. The Secretary may issue reasonable rules and
regulations which he considers appropriate and necessary
for the effective implementation of this Act.
Sec. 17. The revolving fund established under section
311(k) of the Federal Water Pollution Control Act shall
be available to the Secretary for Federal actions and
activities under section 5 of this Act.
Sec. 18. This Act shall be effective upon the date of
enactment, or upon the date the Convention becomes ef-
fective as to the United States, whichever is later.
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GUIDELINES AND REPORTS 577
THE SECRETARY OF STATE
WASHINGTON
January 31, 1973
Dear Mr. [President/Speaker]:
There is transmitted herewith a draft of a proposed act,
"To implement the International Convention on
Civil Liability for Oil Pollution Damage and
the International Convention on the Establish-
ment of an International Fund for Compensation
for Oil Pollution Damage."
This act was first transmitted to the Congress on
September 8, 1972. The proposed act would incorporate
in domestic law, provisions embodied in the two Con-
ventions establishing a regime for prevention of and
compensation for oil pollution damage from tankers. The
International Convention on Civil Liability for Oil
Pollution Damage, which was negotiated in 1969 at a con-
ference covened by the Inter-Governmental Maritime Con-
sultative Organization (IMCO), has been favorably re-
ported to the Senate by the Senate Foreign Relations
Committee. Action by the Senate is pending. The Inter-
national Convention on the Establishment of an Inter-
national Fund for Compensation for Oil Pollution Damage,
also an IMCO Convention, has been transmitted to the
Senate for advice and consent. The submission of draft
legislation at this time is in accord with Executive
Branch intention of seeking legislative implementation
at the earliest possible time.
Title I of the proposed act implements provisions of the
Civil Liability Convention making a tanker owner strict-
ly liable to governments and private persons for oil
pollution damage in the territory, including the terri-
torial sea, of the United States or any other country
party to the Civil Liability Convention, and for pre-
ventive measures, wherever taken, in respect of such
damage. An owner may limit his liability to the lesser
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578 LEGAL COMPILATION—SUPPLEMENT n
of $144* per ton or $15,120,000* by constituting a fund
in the amount of his liability limit in the appropriate
court. The act also requires that the owner of a vessel
capable of or actually carrying more than 2,000 tons of
oil in bulk as cargo carry insurance or another guaran-
tee of financial security in the amount of the limit
which may be applied to his liability.
Title II of the act implements the provisions of the
Compensation Fund Convention making the Compensation
Fund (an international entity) strictly liable up to
$32,400,000 per incident for oil pollution damage inso-
far as that amount exceeds applicable limits in the
Civil Liability Convention and for the entire amount in
respect of certain incidents of damage where the owner
may avail himself of a defense under that Convention.
The Compensation Fund will be financed by contributions
levied on receivers of oil importing more than 150,000
tons of contributing oil on the basis of a fixed sum per
ton of oil, set on the basis of need from time to time.
Title II also implements the provisions of the Compensa-
tion Fund Convention which provides for the indemnifica-
tion by the Fund of a portion of the liability of the
owner or his guarantor under the Liability Convention.
The amount which may be indemnified is that portion of
liability which exceeds $108 per ton or $9,000,000,
whichever is the less, and which does not exceed $144
per ton or $15,120,000, whichever is the less. The
obligation to indemnify is subject to defeat if the
incident causing the pollution damage arose from the
* Throughout this letter and the attached sectional
analysis, dollar figures are expressed in terms of U.S.
dollars taking account of P.L. 92-268, the Par Value
Modification Act. The messages from the President
transmitting the Conventions to the Senate (Exec. G,
91st Cong., 2d Sess., May 20, 1970; Exec. K, 91st Cong.,
2d Sess., May 5, 1972) have expressed dollar figures
in terms of 1970 U.S. dollars. The Conventions and
the act themselves provide that the limit is the
national currency equivalent of specified amounts of
Poincare francs.
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GUIDELINES AND REPORTS 579
willful misconduct of the owner or, to the proportionate
extent the incident, through the actual fault or privity
of the owner, was caused by the ship's failure at the
time of the incident to comply with the provisions of
named IMCO Conventions which operate to have a pollution
prevention effect.
Title III of the act gathers the provisions of law
required by both Conventions regarding subrogation and
apportionment of claims where applicable liability
limits may be exceeded. It also includes a provision
(Section 302(b)) empowering a District Court of the
United States to adopt a plan for prompt and equitable
distribution of monies in such cases.
The provisions of the act are explained in greater detail
in the attached sectional analysis. The act would super-
sede that part of the Federal Water Pollution Control Act
as amended relating to money damages for oil pollution
and financial security, that only insofar as a given oil
pollution incident is within the scope of the Conven-
tions. No express language of supersession has been
provided, however, pending review of recent changes to
that Act.
Prompt consideration and early enactment of this legis-
lation are respectfully urged.
The Office of Management and Budget has advises that the
enactment of this legislation is consistent with the
objectives of the Administration.
Sincerely,
/s/ Marshall Wright
Acting Assistant Secretary
for Congressional Relations
Honorable Spiro T. Agney Honorable Carl Albert
President of the Senate Speaker of the House
Washington, D.C. 20510 of Represenatives
Washington, D0C. 20515
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580 LEGAL COMPILATION—SUPPLEMENT n
AN ACT
To implement the International Convention on Civil
Liability for Oil Pollution Damage and the Interna-
tional Convention on the Establishment of an Interna-
tional Fund for Compensation for Oil Pollution Damage.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled,
That this Act may be cited as the "Oil Pollution
Compensation Act of 1972."
"TITLE I - INTERNATIONAL CONVENTION ON
CIVIL LIABILITY FOR OIL POLLUTION DAMAGE
"Sec. 101. For the purposes of this Title, the term -
"(a) 'Ship1 means any sea-going vessel and any sea-
borne craft of any type whatsoever, actually carrying
oil in bulk as cargo.
11 (b) 'Person' means (1) any individual, corporation,
partnership, firm, association, trust, estate, public or
private institution, group, Government agency, or instru-
mentality, any State, or any political subdivision of,
or any political entity within a State, any foreign
government or country, or any political subdivision of
any such government or country, or other entity; and
(2) any legal successor, representative, agent, or
agency of the foregoing.
11 (c) 'Owner1 means the person or persons registered
as the owner of the ship or, in the absence of registra-
tion, the person or persons owning the ship. However in
the case of a ship owned by a country and operated by a
company which in that country is registered as the
ship's operator, 'owner' shall mean such company.
"(d) 'State of the ship's registry' and other re-
ferences to registration of a ship in a State mean in
relation to registered ships the country of registra-
tion of the ship, and in relation to unregistered ships
the country whose flag the ship is flying. Registration
of a ship in the United States includes the licensing or
enrollment of a ship.
" (e) 'Oil1 means any persistent oil, such as crude
oil, fuel oil, heavy diesel oil, lubricating oil and
whale oil, whether carried on board a ship as cargo or
in the bunkers of such a ship.
"(f) 'Pollution damage' means loss or damage caused
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GUIDELINES AND REPORTS 581
outside the ship carrying oil by contamination resulting
from the escape or discharge of oil from the ship,
wherever such escape or discharge may occur, and in
eludes the costs of prevention measures (Including the
actual cost of removal of the oil) and further loss or
damage caused by preventive measures. In the preceding
sentence, 'contamination' includes, but is not limited
to, contamination which is the escape or discharge or
any quantity of oil, at such times and locations or
under such circumstances and conditions, as are deter-
mined, pursuant to paragraph (3) of Sec. 11 (b) of the
Federal water Pollution Control Act, as amended, to be
harmful to the public health or welfare of the United
States.
"(g) 'Preventive measures' means any reasonable
measures taken by any person after an incident has
occurred to prevent or minimize pollution damage.
"(h) 'Incident1 means any occurrence, or series of
occurrences having the same origin, which causes pollu-
tion damage.
"(i) 'Liability Convention' means the International
Convention on Civil Liability for Oil Pollution Damage,
1969.
"(j) 'Escape' or 'discharge' includes, but is not
limited to, any spilling, leaking, pumping, pouring,
emitting, emptying or dumping.
"(k) 'United States,' when used in a geographic
sense, means the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Canal Zone, Guam,
American Samoa, the Virgin Islands, the Trust Territory
of the Pacific Islands, and all other territories or
possessions of the United States.
"(1) 'Franc' means a unit consisting of sixty-five
and a half milligrams of gold of millesimal fineness
nine hundred.
11 (m) 'Ton' means 2240 pounds.
11 (n) 'Guarantor1 means any person providing insur-
ance or other financial security pursuant to the pro-
visions of Section 103 of this Title or of Article VII,
paragraph 1 of the Liability Convention.
"(o) 'Ship's tonnage' means the net tonnage of the
ship with the addition of the amount deducted from the
gross tonnage on account of engine room space for the
purpose of ascertaining the net tonnage. In the case of
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582 LEGAL COMPILATION—SUPPLEMENT n
a ship which cannot be measured in accordance with the
normal rules of tonnage measurement, the ship's tonnage
shall be deemed to be 40% of the weight in tons of oil
which the ship is capable of carrying.
"(p) 'District Court of the United States' includes
the courts enumerated in Title 28, Section 460, United
States Code.
"Sec. 102. (a) Except as provided in subsections (b) and
(c) of this section, the owner of a ship at the time of
the incident, or where the incident consists of a series
of occurrences, at the time of the first such occurrence,
shall be liable for any pollution damage caused as a
result of the incident.
"(b) The owner shall not be liable for pollution
damage if he proves that the damage
(1) resulted from an act of war, hostilities,
civil war, insurrection or a natural phenomenon of an
exceptional, inevitable and irresistible character, or
(2) was wholly caused by an act or omission
done with intent to cause damage by a third party, or
(3) was wholly caused by the negligence or
wrongful act of any government or other authority res-
ponsible for the maintenance of lights or other naviga-
tional aids in the exercise of that function.
"(c) If the owner proves that the pollution damage
resulted wholly or partially either from an act or
omission done with intent to cause damage by the person
who suffered the damage or from negligence of that per-
son, the owner may be exonerated to the same extent from
his liability to such person.
"(d) This section applies exclusively to pollution
damage (other than preventive measures) caused on the
territory, including the territorial sea, of the United
States or of any foreign country which is party to the
Liability Convention, and to preventive measures,
wherever taken, to prevent or minimize such damage.
"(e) Nothing in this Act shall prejudice any right
r recourse of the owner against third parties.
' '"* T-Then oil has escaped or has been discharged
ore ships, and pollution damage results
.w.c, \-• owners of all the ships concerned, unless
_.ited under subsection (b), and, to the extent not
- ~--ated undtr subsection (c) , shall be jointly and
I_L. 1 <-<:L>le for all such damage which is not
216
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GUIDELINES AND REPORTS 583
reasonably separable.
11 (g) (1) Subject to paragraph (2) of this subsection,
the owner of a ship shall be entitled to limit his lia-
bility under this Act in respect of any one incident to
an aggregate amount equal to the dollar equivalent of
2,000 francs for each ton of the ship's tonnage; 'pro-
vided that the aggregate amount of an owner's liability
in respect of any one incident shall not exceed the
dollar equivalent of 210 million francs. The dollar
equivalent of a franc shall in any action brought pur-
suant to this Title be calculated as of the date the
fund referred to in paragraph (3) of this subsection is
constituted.
(2) If the incident occurred as a result of the
actual fault or privity of the owner, he shall not be
entitled to avail himself of the limitation provided in
paragraph (1) of this subsection.
(3) For the purpose of availing himself of the
benefit of limitation provided for in paragraph (1) of
this subsection the owner shall constitute a fund in an
amount equal to the limit of his liability under this
Title in a Court in which an action is brought under
subsection 104(b) of this Title, or the owner shall con-
stitute a fund in such amount in accordance with Article
V of the Liability Convention in any court of a foreign
country having jurisdiction as provided in Article IX of
the Liability Convention in which an action under that
Convention is brought or with another competent autho-
rity of such a country. A fund constituted in the
United States may be constituted either by depositing
the sum or producing a bank guarantee or other guarantee
considered to be adequate by the Court.
(4) A guarantor shall be entitled to constitute
a fund in accordance with this subsection on the same
conditions and having the same effect as if it were con-
stituted by the owner. Such a fund may be constituted
even in the event of actual fault or privity of the owner
but its constitution shall in that case not prejudice the
rights of any claimant against the owner.
"(h) (1) Where the owner, after an incident, has con-
stituted a fund in accordance with subjection (g) of
this section and is entitled to limit his liability,
(A) no person having a claim for pollution
damage arising out of that incident shall be entitled to
217
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584 LEGAL COMPILATION—SUPPLEMENT 11
exercise any right against any other assets of the owner
in respect of such claim;
(B) a District Court of the United States
shall order the release of any ship or other property
belonging to the owner which has been arrested in res-
pect of a claim for pollution damage arising out of that
incident, and shall similarly release any bail or other
security furnished to avoid arrest.
(2) Paragraph (1) of this subsection shall
apply only if the claimant has access to the Court ad-
ministering the fund and the fund is actually available
in respect of his claim.
"(i) Any claim for compensation for pollution damage
may be brought directly against the guarantor of the
owner's liability for pollution damage. In such case,
the defendant may, irrespective of the actual fault or
privity of the owner, avail himself of the limits of
liability prescribed in subsection (g)(1) of this
section. He may further avail himself of the defenses
(other than the bankruptcy or winding up of the owner)
which the owner himself would have been entitled to in-
voke. Furthermore, the defendant may avail himself of
the defense that the pollution damage resulted from the
willful misconduct of the owner himself, but the defen-
dant shall not avail himself of any other defense which
he might have been entitled to invoke in proceedings
brought by the owner against him. The defendent shall
in any event have the right to require the owner to be
joined in the action.
"Sec. 103.(a) The owner of a ship registered in the
United States which is capable of carrying more than
2,000 tons of oil in bulk as cargo shall maintain in-
surance or other financial security in the sums fixed
by applying the limits of liability prescribed in sub-
section (g)(l) of Section 102 of this Title. Any sums
provided by insurance or by other financial security
maintained in accordance with the preceding sentence
shall be available exclusively for the satisfaction of
claims under this Title.
"(b) After determining that insurance or other
financial security in the sums fixed by applying the
limits of subsection (g)(1) of Section 102 has been ob-
tained, the President shall issue a certificate to each
ship registered in the United States which is capable of
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GUIDELINES AND REPORTS 585
carrying more than 2,000 tons of oil in bulk as cargo
attesting that such insurance or other financial security
has been obtained. After making such a determination,
the President may also issue a certificate to a ship
capable of carrying more than 2,000 tons of oil in bulk
as cargo which is registered in a State not party to the
Liability Convention. The certificate shall be in the
form annexed to the Liability Convention and shall con-
tain:
(1) name of the ship and port of registration;
(2) name and principal place of business of
owner;
(3) type of security;
(4) name and principal place of business of
insurer or other person giving security, and where
appropriate, place of business where the insurance or
security is established;
(5) period of validity of certificate which
shall not be longer than the period of validity of the
insurance or other security.
"(c) The certificates shall be carried on board all
ships to which the certificates are issued and a copy
shall be retained by the President.
11 (d) No certificate shall be issued if the insurance
or other financial security can cease, for reasons other
than the expiration of the period of validity of the
insurance or security specified in the certificate,
before three months have elapsed from the date on which
notice of its termination is given to the President.
The President shall determine such other requirements
related to the financial capability of the owner's
guarantor as may be desirable to carry out the pur-
poses of this Act for the issuance of the certificate
or the termination of its validity.
11 (e) Certificates issued or certified under the
authority of another State party to the Convention shall
have the same force as certificates issued pursuant to
this subsection. The Secretary of State shall request
consultation with the State of a ship's registry if the
President seeks to determine whether the guarantor named
in the ship's certificate is financially capable for the
purposes of this Act. If the President determines that
such guarantor is not financially capable for the pur-
poses of this Act, he may take such lawful action as he
219
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586 LEGAL COMPILATION—SUPPLEMENT n
deems appropriate, including but not limited to the
barring of the ship's from any or all ports of the
United States.
"(f) No ship registered in the United States to
which this section applies shall engage in trade unless
a certificate has been issued pursuant to this section.
"(g) No ship registered in the United States which
is capable of carrying more than 2,000 tons of oil in
bulk as cargo, and no other ship, wherever registered,
actually carrying more than 2,000 tons of oil in bulk as
cargo, shall enter or leave a port in the United States,
or be permitted to arrive at or leave an offshore ter-
minal in the territorial waters of the United States
unless the ship has on board a valid certificate issued
by the United States or a foreign country party to the
Convention. Any ship required by the preceding sentence
to have such a valid certificate on board which enters
the territorial waters or the contiguous zone of the
United States enroute to a port or terminal installation
(as defined in subsection 201 (e) of Title II) in the
United States, and which fails to have such valid certi-
ficate on board, shall for each such failure be liable
for a civil penalty of not more than 10,000 dollars.
The President may assess and compromise such penalty.
No penalty shall be assessed until notice and an oppor-
tunity for hearing on the charge has been given. In
determining the amount of the penalty or the amount
agreed upon in compromise, the demonstrated good faith
of the owner shall be considered by the President.
"(h) Any ship owned by the United States or any
foreign country which carries a certificate issued by
the President, or, if a ship owned by a foreign country,
by the country owning the ship, stating the ownership
of the ship and that the ship's liability is covered to
the limit prescribed by subsection (g)(1) of Section 102
shall be deemed to have complied with the foregoing
requirements of this section. The certificate shall
resemble as closely as possible the model described in
subsection (b) of this section.
"(i) The President is authorized to delegate the
administration of this section, including the powers to
make determinations and to make and revise regulations,
and to redelegate such powers, to the heads of those
Federal departments, agencies, and instrumentalities
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GUIDELINES AND REPORTS 587
which he determines to be appropriate.
"Sec. 104. (a) Rights of compensation under this Title
shall be extinguished unless an action is brought there-
under within three years from the date when the damage
occurred. However, in no case shall an action be brought
later than six years from the date of the incident which
caused the damage. Where the incident consists of a
series of occurrences, the six years' period shall run
from the date of the first occurrence.
"(b) (1) Subject to paragraph 2 of this subsection,
the several District Courts of the United States shall
have jurisdiction over any actions arising under this
Act if the action is brought in respect of an incident
which has caused all or part of the pollution damage
(other than preventive measures) on the territory, in-
cluding the territorial sea, of the United States or
in respect of preventive measures, wherever taken, to
prevent or minimize such damage.
(2) Actions authorized under the above sub-
section may be brought in any judicial district in
which one of the plaintiffs or one of the defendants
resides or in which pollution damage, including preven-
tive measures taken to prevent or minimize such damage,
has occurred or could reasonably be expected to have
occurred if such preventive measures had not been taken.
For the purpose of this Act, American Samoa shall be
included within the judicial district of the District
Court of the United States for the District of Hawaii
and the Trust Territory of the Pacific Islands shall
be included within the judicial districts of both the
District Court of the United States for the District of
Hawaii and the District Court of Guam.
(3) If the fund referred to in subsection (g)
(3) of Section 102 has been constituted in a District
Court of the United States or in a competent court of
a foreign country party to the Liability Convention,
that court shall have exclusive jurisdiction regarding
all matters relating to the apportionment and distri-
bution of the fund.
11 (c) Subject to the provisions of Section 302 of
Title III of this Act, any judgment given by a foreign
court with jurisdiction in accordance with Article IX
of the Liability Convention which is enforceable in the
country of origin and which is no longer subject to
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588 LEGAL COMPILATION—SUPPLEMENT n
ordinary forms of review therein, shall be enforceable
in the courts of the United States except:
(1) where the judgment was obtained by fraud; or
(2) where the defendant was not given reasonable
notice and a fair opportunity to present his case.
"(d) (1) The provisions of this Title shall not apply
to warships or other ships owned or operated by a country
and used, for the time being, only on Government non-
commercial services.
(2) With respect to ships owned by the United
States and used for commercial purposes, the United
States, in actions brought against it in the United
States and in other jurisdictions identified in Article
IX of the Liability Convention, waives all defenses
based on its status as a sovereign state.
"TITLE II - INTERNATIONAL CONVENTION ON THE
ESTABLISHMENT OF AN INTERNATIONAL FUND FOR
COMPENSATION FOR OIL POLLUTION DAMAGE
"Sec. 201. For the purposes of this Title, the term -
" (a) 'Convention' means the International Convention
on the Establishment of an International Fund for Com-
pensation for Oil Pollution Damage, 1971.
"(b) 'The Fund' means the 'International Oil Pollu-
tion Fund' established by the Convention.
"(c) 'Liability Convention,' 'ship,1 'State of the
ship's registry1 and other references to registration
of a ship in a State, 'person,' 'owner,' 'oil,' 'pollu-
tion damage,' 'preventive measures,1 'incident,' 'franc,'
'ship's tonnage,' 'escape,' 'discharge,1 'United States'.
when used in a geographic sense, 'ton,' 'guarantor,' and
'District Court of the United States' have the same
meaning as in Title I of this Act, except that (1) 'oil1
shall be confined to persistent hydrocarbon mineral oils
for the purposes of this Title, and (2) 'ton' in rela-
tion to oil means a metric ton.
"(d) 'Contributing oil' means crude oil and fuel oil
as defined in subparagraph (1) and (2) below:
(1) 'Crude oil' means any liquid hydrocarbon
mixture occurring naturally in the earth whether or not
treated to render it suitable for transportation, and
includes crude oils from which certain distillate frac-
tions have been removed ('topped crudes') and to which
certain distillate fractions have been added ('spiked1
or 'reconstituted' crudes).
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GUIDELINES AND REPORTS 589
(2) 'Fuel oil' means heavy distillates or
residues from crude oil or blends of such materials in-
tended for use as a fuel for the production of heat or
power of a quality equivalent to 'American Society for
Testing Materials Specification for Number Four Fuel Oil1
(Designation D 396-69) or heavier.
"(e) 'Terminal installation' means any site for the
storage of oil in bulk which is capable of receiving oil
from waterborne transportation, including any facility
situated off-shore and linked to such site.
"Sec. 202. (a) Contributions to the Fund shall be made
by any person who has received, in total quantities
exceeding 150,000 tons in the calendar year preceding
the year in which his contribution is calculated,
(1) in the ports or terminal installations in
the territory of the United States, contributing oil
carried by sea to such ports or terminal installations;
(2) in any installations situated in the
territory of the United States, contributing oil which
has been carried by sea and discharged in a port or
terminal installation of a country not party to the Con-
vention, provided that contribution in respect of con-
tributing oil so carried and discharged shall be made
only by the first receiver in the United States.
11 (b) Any person
(1) who is a subsidiary of or an entity commonly
controlled by a person or related group of persons re-
quired under subsection (a) of this section to make con-
tributions to the Fund and who receives contributing oil
as provided in subseotion (a) of this section in any
amount in the same calendar year as such person or re-
lated group of persons, or
(2) who is one of two or more subsidiaries of
or entities commonly controlled by a person or related
group of persons and such subsidiaries or entities
receive, as provided in subsection (a) of this section
an amount of contributing oil exceeding 150,000 tons in
the aggregate in the same calendar year,
shall also make contributions to the Fund. The President
shall by regulation determine which persons shall be
deemed to be subsidiaries, commonly controlled entities
and related groups of persons for the purposes of this
subsection.
11 (c) Any person required by subsection (a) or (b)
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590 LEGAL COMPILATION—SUPPLEMENT n
of this section to contribute to the Fund shall, upon
notification by the Director of the Fund be liable to
pay the Fund the amount of his initial and annual con-
tribution calculated pursuant to Article 11 and Article
12 of the Convention, as specified by the Director. Such
person shall pay the Fund such portion thereof in cash
as may from time to time be requested by the Director,
and shall give such security for the remaining portions
thereof, including amounts in arrears, as the Director
may require pursuant to regulations of the Fund. Such
person shall be liable to pay interest to the Fund in
respect of amounts in arrears at a rate determined by
the Fund.
"(d) Any person liable to contribute to the Fund and
who fails to make a payment or to provide security to
the Fund as required by the preceding subsection within
three months from the date such payment is due or the
provision of security is required, shall for each such
failure be liable for a civil penalty of not more than
5,000 dollars. The President may assess and compromise
such penalty. No penalty shall be assessed until the
person has been given notice and an opportunity for a
hearing on such charges. In determining the amount of
such penalty or the amount agreed upon in compromise,
the demonstrated good faith of the persons and the
amount of the contribution due shall be considered by
the President.
"(e) (1) Subject to paragraph (2) of this subsection,
any person liable to contribute to the Fund and who fails
to make a payment or to provide security to the Fund as
required by subsection (c) of this section shall be lia-
ble in an action brought in the several District Courts
of the United States by the Director of the Fund for the
amount due or to provide such other relief as the court
may determine is appropriate.
(2) Upon a determination of the President that
a person to which the judicial power of the United States
does not extend in the circumstances set forth in Amend-
ment XI to the Constitution of the United States is lia-
ble to contribute an amount to the Fund, and that such
person has failed to make payment of that amount or any
part thereof for more than three months from the date
the payment was due, the President shall take such
measures as he deems appropriate to collect such unpaid
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GUIDELINES AND REPORTS 591
amount and any interest (as provided in subsection (c)
of this section) on behalf of the Fund, including the
prosecution of an action therefor against such person
in a court of the United States. Upon receipt of the
sums collected, the President shall forthwith pay such
sums to the Fund.
" (f) The Fund shall have capacity under the laws of
the United States to contract, to acquire and dispose of
real and personal property, and to institute and be
party to legal proceedings. The Director of the Fund
shall be the legal representative of the Fund. The
Director shall be deemed irrevocably to have appointed
the Secretary of State his agent for service of process
in any action against the Fund in any court of the United
States.
"(g) The President shall communicate to the Director
of the Fund the name and address of any person who is
liable to contribute to the Fund under subsection (b) of
this section and data regarding the relevant quantities
of contributing oil received by such person during the
preceding calendar year. The President may require any
person who may be liable to contribute to the Fund to
furnish such information as he may from time to time deem
appropriate for purposes of the preceding sentence.
Communications by the President to the Director shall,
in any civil action or administrative proceeding arising
our of alleged failure to contribute or provide security
to the Fund as required herein, be prima facie evidence
of the facts stated therein.
"(h) The President is authorized to delegate the
administration of this section, including the powers to
make determinations, and to make and revise regulations,
and to redelegate such powers, to the heads of those
Federal departments, agencies, and instrumentalities
which he determines to be appropriate.
"Sec. 203. Sections 204 and 205 of this Title respective-
ly apply exclusively to pollution damage (other than pre-
ventive measures) caused on the territory, including the
territorial sea, of the United States and any foreign
country which is party to the Convention and to pre-
ventive measures, wherever taken to prevent or minimize
such damage, and, with regard to indemnification of
owners and guarantors, to pollution damage (other than
preventive measures) caused on the territory, including
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592 LEGAL COMPILATION—SUPPLEMENT n
the territorial sea, of the United States and any
foreign country party to the Liability Convention by a
ship registered in a State party to the Convention, and
to preventive measures, wherever taken, to prevent or
minimize such damage.
"Sec. 204. (a) Any person suffering pollution damage
arising out of an incident occurring more than one
hundred and twenty days after the entry into force of
the Convention shall be entitled to compensation from
the fund if that person has been unable to obtain full
and adequate compensation for the damage under the terms
of Title I or the Liability Convention either
(1) because no liability for the damage arises
under Title I or the Liability Convention; or
(2) because the owner liable for the damage
under Title I or the Liability Convention is financially
incapable of meeting his obligations in full and any
financial security that may be provided under section
103 of Title I or Article VII of the Liability Convention
does not cover or is insufficient to satisfy the claims
for compensation for the damage, provided that an owner
shall be deemed to be financially incapable of meeting
his obligations and financial security shall be deemed
to be insufficient if the person suffering damage has
been unable to obtain full satisfaction of the amount
due him under Title I or the Liability Convention after
having taken all reasonable steps to pursue the legal
remedies available to him; or
(3) because the damages exceed the owner's
liability under the Liability Convention as limited
pursuant to subsection 102(g) of Title I or Article V,
paragraph 1 of the Liability Convention or under the
terms of any other international convention in force
or open for signature, ratification or accession on
December 18, 1971.
Expenses reasonably incurred or sacrifices reasonably
made by the owner voluntarily for preventive measures
shall be treated as pollution damage for purposes of
this section.
"(b) The Fund shall incur no obligation under the
preceding subsection if:
(1) it proves that the pollution damage re-
sulted from an act of war, hostilities, civil war or
insurrection or was caused by oil which has escaped or
226
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GUIDELINES AND REPORTS 593
been discharged from a warship or other ship owned or
operated by the United States or a foreign country and
used at the time of the incident only on government non-
commercial service; or
(2) the claimant cannot prove that the damage
resulted from an incident involving one or more ships.
"(c) If the Fund proves that the pollution damage
resulted wholly or partially either from an act or
omission done with intent to cause damage by the person
who suffered damage or from the negligence of that per-
son, the Fund may be exonerated to the same extent from
its obligation to pay compensation to such person. The
Fund shall in any event be exonerated to the extent that
the owner may have been exonerated under subsection
102(c) of Title I or Article III, paragraph 3 of the
Liability Convention. Notwithstanding any other pro-
vision of this Act, the Fund shall not to any extent be
exonerated with regard to pollution damage resulting
from the taking of preventive measures compensable under
subsection (a) of this section.
"(d) The aggregate amount of compensation payable by
the Fund under this Act shall in respect of any one
incident be limited, so that the total sum of that amount
and the amount of compensation actually paid under Title
I or the Liability Convention for pollution damage, in-
cluding any sums in respect of which the Fund is under
an obligation to indemnify the owner pursuant to Section
205 of this Title shall not exceed the dollar equivalent
of 450 million francs; provided, however, that if the
Fund shall decide to change the figure 450 million francs,
such total sum shall, with respect to incidents occurring
after the date of such change, in no case exceed the
dollar equivalent of the amount decided on by the Fund,
and further provided, that all pollution damage resulting
from a single natural phenomenon of an exceptional,
inevitable, and irresistible character in every case
shall be deemed to have arisen out of a single incident.
"Sec. 205. (a) An owner or his guarantor shall be
entitled to reimbursement from the Fund, for that por-
tion of the aggregate amount of liability for pollution
damage under Title I or the Liability Convention arising
out of an incident occurring more than one hundred and
twenty days after the entry into force of the Convention
which:
227
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594 LEGAL COMPILATION—SUPPLEMENT n
(1) is in excess of an amount equal to the
dollar equivalent of 1500 francs for each ton of the
ship's tonnage or of an amount equal to the dollar equiv-
alent of 125 million francs, whichever is less; and,
(2) is not in excess of an amount equal to the
dollar equivalent of 2,000 francs for each ton of the
ship's tonnage or an amount equal to the dollar equiva-
lent of 210 million francs, whichever is the less;
provided, however, that the Fund shall incur no obliga-
tion under this paragraph where the pollution damage
resulted from the willful misconduct of the owner himself.
"(b) If the Fund proves that
(1) as a result of the actual fault or privity
of the owner, the ship from which the oil causing pollu-
tion damage (including preventive measures) escaped or
was discharged did not comply with the requirements laid
down in (A) the International Convention for the Preven-
tion of Pollution of the Sea by Oil, 1954, as amended in
1962; or (B) the International Convention for the Safety
of Life at Sea, 1960; or (C) the International Conven-
tion on Load Lines, 1966; or (D) the International Regu-
lations for Preventing Collisions at Sea, I960; or any
amendment which has been determined to be of an important
nature under Article XVI(5) of the Convention mentioned
in (A), under Article IX(e) of the Convention mentioned
in (B) or under Article 29(3)(d) or (4)(d) of the Con-
vention mentioned in (C); provided, however, that any
such amendment has been in force for at least twelve
months at the time of the incident; and,
(2) the incident or damage was wholly or
partially caused by such non-compliance;
the Fund shall, to the same extent, be exonerated from
its obligations under the preceding subsection, without
regard to whether the ship was bound by the law of the
State of the ship's registry to comply with such require-
ments.
"(c) If the Fund decides that a new convention shall
replace an instrument or a part thereof for the purpose
of paragraph 3 of Article 5 of the Convention, the ship
shall on the effective date of such replacement be re-
quired to comply with the requirements of the new con-
vention for the purposes of the preceding subsection;
provided, however, that any ship registered at the time
of an incident in any State party to the Convention
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GUIDELINES AND REPORTS 595
(including the United States) which is not a party to
the new convention and which has declared to the Director
of the Fund that it does not accept such replacement and
has not terminated such declaration shall be required
for the purposes of the preceding subsection to comply
only with the requirements referred to in that subsec-
tion until such declaration is withdrawn or the State
becomes party to the new convention.
"(d) Any ship complying with the requirements in an
amendment to an instrument specified in subsection (b)
or with the requirements in a new convention, where the
amendment or the convention is designed to replace in
whole or in part such instrument, shall be considered as
complying with the requirements of subsection (b).
"(e) If the Fund shall have assumed the obligations
of a guarantor of part of an owner's liability, the owner
shall, upon proof of such assumption, be deemed to have
complied with Section 103 of Title I of this Act and
Article VII of the Liability Convention with respect to
that part of his liability. Where the Fund, acting as a
guarantor, has paid compensation for pollution damage in
accordance with Title I of this Act or the Liability Con-
vention, it shall have a right of recovery from the owner
to the extent that the Fund would have been exonerated
pursuant to subsection (b) of this section from its obli-
gations under subsection (a) of this section to indemnify
the owner or his guarantor.
" (f) Expenses reasonably incurred and sacrifices
reasonably made by the owner voluntarily to prevent or
minimize pollution damage shall be treated as included
in the owner's liability for the purposes of this Section.
"Sec. 206. (a) The Several District Courts of the United
States shall have jurisdiction over actions against the
Fund for compensation or indemnification under Sections
204 or 205 of this Title. Such actions may be brought
no sooner than 240 days after entry into force of the
Convention and shall be brought only before a court
competent under Section 104(b) of Title I of this Act.
11 (b) Subject to the provisions for consolidation of
the Federal Rules of Civil Procedures, where an action
for compensation for pollution damage has been brought
before a District Court of the United States or a court
of another country competent under Article IX of the
Liability Convention, against the owner or his guarantor,
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596 LEGAL COMPILATION—SUPPLEMENT n
such court or courts shall have exclusive jurisdiction
over actions against the Fund for compensation or in-
demnification under Section 204 or 205 of this Title in
respect of pollution damage arising out of the same
incident and involving the same defendant or his guaran-
tor. However, where an action for compensation for
pollution damage under the Liability Convention has been
brought before a court of a country party to the Lia-
bility Convention but not to the Convention, any action
against the Fund for such compensation or indemnifica-
tion may be brought before any District Court of the
United States having jurisdiction under Section 104(b)
of Title I.
"(c) The Fund may intervene of right as a party in
any legal proceedings instituted against an owner or
his guarantor under Title I of this Act.
"(d) Subject to subsection (e) of this section, the
Fund shall not be bound by any judgment or decision in
proceedings to which it has not been a party or by any
settlement to which it is not a party.
"(e) Where an action under Title I for compensation
for pollution damage has been brought against an owner
or his guarantor in a District Court of the United
States, each party to the proceedings shall be entitled
to notify the Fund of the proceedings. Where such noti-
fication has been timely made and in accordance with the
practice of the Federal Courts, any judgment rendered by
the court in such proceedings shall, after it has become
final and enforceable in the United States, become
binding upon the Fund in the sense that the facts and
findings in that judgment may not be disputed by the
Fund even if the Fund has not actually intervened in
the proceedings.
"(f) Rights to compensation under Section 204 of
this Title or to indemnification under Section 205 of
this Title shall be extinguished unless an action is
brought thereunder or notification has been made pur-
suant to the preceding subsection within three years
from the date when the pollution damage occurred, pro-
vided that no action shall be brought more than six
years after the date of the incident which caused the
pollution damage.
11 (g) Notwithstanding the provisions of the preceding
subsection, the right of an owner or guarantor to seek
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GUIDELINES AND REPORTS 597
indemnification from the Fund pursuant to Section 205(a)
shall in no case be extinguished sooner than six months
from the date the owner or his guarantor acquired know-
ledge of the commencement of an action against him
under Title I of this Act or under the Liability Con-
vention.
"(h) Subject to the provisions of Section 302 of
Title III of this Act, any judgment given against the
Fund by a court having jurisdiction as provided in
Article 7, paragraphs (1) or (3) of the Convention shall,
when it is enforceable in the country of origin, and
which is no longer subject to ordinary forms of review
therein, be enforceable in the courts of the United
States except on the same conditions as are prescribed
in Section 104 of Title I.
"Sec. 207. The Fund, its assets and income, including
contributions, shall be exempt from all direct taxation
in the United States.
TITLE III - APPORTIONMENT OF CLAIMS AND
SUBROGATION; EXCLUSIVE REMEDY;
EFFECTIVE DATE
"Sec. 301. For the purposes of this Title, the term -
11 (a) 'Owner's fund' means a fund constituted as
provided in Section 102 of Title I of this Act.
"(b) 'Compensation Fund' means the Fund as defined
in Section 201 of Title II of this Act.
"(c) 'Owner,' 'guarantor,' 'person,1 'pollution
damage,' 'preventive measures,' 'Liability Convention,1
and 'District Court of the United States' have the same
meaning as in Title I of this Act.
"(d) 'Convention1 has the same meaning as in Title
II of this Act.
"Sec. 203. (a) Subject to Section 303 of this Title -
(1) An owner's fund shall be distributed among
the claimants in proportion to their established claims.
Claims in respect of preventive measures taken by the
owner shall rank equally with other claims against the
owner's fund.
(2) Where the aggregate amount of damage arising
out of any one incident exceeds the amount referred to
in Section 204(d) of Title II of this Act, the amount
available thereunder for compensation of such damage
under this Act shall be distributed in such a manner that
the proportion between any established claim and the
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598 LEGAL COMPILATION—SUPPLEMENT n
amount of compensation actually recovered by the claimant
under the Liability Convention and this Act shall be the
same for all claimants.
"(b) On the petition of any claimant, owner, guarantor,
the Compensation Fund, or any other interested person,
any District Court of the United States in which an
owner's fund is constituted pursuant to Section 102 of
Title I of this Act or if no fund is constituted, any
District Court having jurisdiction of an action against
the Compensation Fund may determine that liability arising
from an incident may exceed the limit of liability under
this Act. Whenever such determination is made:
(1) Total payments made by or for all claimants
as a result of such incident shall not exceed 20 per cen-
tum of such limit of liability without the prior approval
of the court;
(2) The court shall not authorize payments in
excess of 20 per centum of such limit of liability un-
less the court determines that such payments are or will
be in accordance with a plan of distribution which has
been approved by the court or such payments are not
likely to prejudice the subsequent adoption and imple-
mentation by the court of a plan of distribution pursuant
to subsection (a) of this Section; and
(3) Any other interested person may submit to
such District Court a plan for the disposition of pending
claims and for the distribution of remaining moneys avail-
able. Such a plan shall include an allocation of appro-
priate amounts for claims which may not be made until a
later time. Such court shall have all power necessary
to approve, disapprove, or modify plans proposed, or to
adopt another plan; and to determine the proportionate
share of moneys available for each claimant. Any person
compensated or indemnified shall be entitled to such
orders as may be appropriate to implement and enforce
the provisions of this subsection, including orders
limiting the liability of the persons indemnified, orders
approving or modifying the plan, orders staying the pay-
ment of claims and the execution of court judgments,
orders apportioning the payments to be made to claimants,
and orders permitting partial payments to be made before
final determination of the total claims. The orders of
such court shall be effective throughout the United
States.
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GUIDELINES AND REPORTS 599
"Sec. 303. (a) If, before an owner's fund is distributed,
the owner, any of his servants or agents, the owner's
guarantor, or the Compensation Fund has as a result of
the incident in question, paid compensation for pollu-
tion damage, such person shall, up to the amount he has
paid, acquire by subrogation the rights which the person
so compensated would have enjoyed under this Act.
"(b) The right of subrogation provided for in sub-
section (a) of this section may also be exercised by a
person other than those mentioned therein in respect of
any amount of compensation for pollution damage which he
may have paid but only to the extent that such subroga-
tion is otherwise permitted under law.
"(c) Subject to the provisions of Section 205 of
Title II, the Compensation Fund shall, in respect of any
amount of compensation for pollution damage paid by the
Compensation Fund in accordance with Section 204 of Title
II, acquire by subrogation the rights that the person so
compensated may enjoy under Title I or the Liability Con-
vention against the owner liable for the damage or his
guarantor.
"(d) Nothing in this Act shall prejudice any right
of recourse or subrogation of the Compensation Fund
against persons other than those referred to in the pre-
ceding subsection. In any event the right of the Com-
pensation Fund to subrogation to the rights of persons
referred to in the preceding paragraph shall be no less
favorable than that of an insurer of a person to whom
compensation or indemnification has been paid.
"(e) Without prejudice to any other rights of sub-
rogation or recourse against the Compensation Fund which
may exist, the United States or any foreign country
party to the Convention, or any agency thereof, shall
acquire by subrogation the rights which a person it has
compensated for pollution damage in accordance with the
provisions of national law would have enjoyed under the
Convention.
"Sec. 304. No action for compensation for such damage
or preventive measures shall be maintained in the United
States against an owner, a guarantor, or the Compensa-
tion Fund, otherwise than in accordance with this Act.
No action for such damage or preventive measures shall
be maintained in the United States against an owner's
servants or agents.
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600 LEGAL COMPILATION—SUPPLEMENT n
"Sec. 305. This Act shall be effective upon the later
of the date of its enactment or the date of the entry
into force of the Convention."
234
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GUIDELINES AND REPORTS 601
Sectional Analysis
TITLE I - INTERNATIONAL CONVENTION ON CIVIL
LIABILITY FOR OIL POLLUTION DAMAGE
Sec. 101. This Section includes definitions of terms
for purposes of Title I of the Act. Generally, these
definitions are taken verbatim from the Civil Liability
Convention itself. A "ship" is any seagoing vessel or
seaborne craft actually carrying oil in bulk as cargo.
"Oil" includes any persistent oil carried as cargo or in
a ship's bunkers. The definition of "person" (subsection
(b)), "State of the ship's registry" (subsection (d) ),
and "pollution damage" (subsection (f)), are consistent
with the Convention but have been modified for clarity
and to take account of circumstances prevailing in the
United States and in United States law.
Sec. 102. This Section is the basic liability section
of the Title. It provides that the owner of a ship at
the time of an incident giving rise to pollution damage
is liable for pollution damage caused as a result of the
incident. The defenses of the owner are confined to:
1. Act of war, hostilities, civil war, insurrection,
or act of God;
2. An act or omission done with intent to cause
damage by a third party; or
3. The negligence or wrongful act of a government or
other authority in the exercise of responsibility for
the maintenance of lights or other navigational aids.
An owner's liability for pollution damage may be reduced
proportionally to the extent the owner proves that the
damage was caused by an act or omission done with intent
to cause damage by the claimant or by the claimant's
negligence. The Section provides that a ship owner may
limit his liability to $144* per ship's ton or
$15,120,000,* whichever is lesser, by the constitution
of a fund in an amount equal to the ship owner's lia-
bility in a United States court or in a foreign court
having jurisdiction under the Convention. The owner may
avail himself of the limit only if the incident did not
occur as a result of the owner's fault or privity. The
*Dollar figures throughout are 1972 U.S. dollars. The
Convention expresses figures in terms of Poincare gold
francs.
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602 LEGAL COMPILATION—SUPPLEMENT n
Section also provides that if the owner has constituted
a fund, the fund shall be the only property of the owner
reachable in payment for covered pollution damage, if
the claimant has access to the court in which the fund
is constituted, and if the fund is actually available in
respect of the claim. The Section also provides that an
action may be brought directly against a guarantor
(insurer) of the owner's liability for pollution damage.
The Section applies to pollution damage caused on the
territory, including the territorial sea of the United
States or any foreign country party to the Liability Con-
vention, and to preventive measures, wherever taken, to
prevent or minimize such damage.
Sec. 103. Section 103 requires the owner of a ship re-
gistered in the United States which is capable of
carrying more than 2,000 tons of oil in bulk as cargo to
maintain insurance or other financial security in the
amount of the limit of the owner's liability under
Section 102. Such a vessel is required to carry a
certificate attesting that insurance or other financial
security in that amount is maintained. No ship registered
in the United States which is required to have such a
certificate may engage in trade unless a certificate has
been issued to it. No U.S. ship capable of carrying more
than 2,000 tons of oil in bulk as cargo and no other ship,
wherever registered, actually carrying more than 2,000
tons of oil in bulk as cargo, may enter or leave a port
in the United States or arrive at or leave an offshore
terminal in the territorial waters of the United States
unless the ship has such a certificate issued by the
United States or a foreign country party to the Conven-
tion. The Section also provides for a civil penalty of
up to $10,000 to be imposed upon any ship required to
have a certificate and failing to do so if it enters the
U.S. territorial waters or contiguous zone en route to a
port or terminal installation in the U.S.
Sec. 104. This Section provides that rights of compen-
sation are extinguished unless an action is brought
within three years of the date the damage occurred or
not later than six years from the date of the incident
which caused the damage. If the incident consists of a
series of occurrences, the six-year period runs from
the date of the first occurrence. The Section confers
jurisdiction to entertain actions for pollution damage
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GUIDELINES AND REPORTS 603
on the several District Courts of the United States and
its territories. It provides that a judgment of a
foreign court having jurisdiction in accordance with
Article IX of the Liability Convention, which is final in
the country of origin, shall be enforceable in the United
States unless the judgment was obtained by fraud or the
defendant was not given reasonable notice and a fair
opportunity to present his case. Article IX of the Lia-
bility Convention provides that the courts of any Con-
tracting State have jurisdiction if an incident has
occurred causing pollution damage in the territory, in-
cluding the territorial sea of such a State, or if pre-
ventive measures have been taken to prevent or minimize
such damage. Pursuant to the Convention, subsection (d)
exempts warships or other ships owned or operated by a
government and used for the time being only on government
non-commercial service, since pollution damage from such
ships is not covered by the Convention. It also waives
the sovereign immunity of the United States with respect
to actions brought against the United States for pollu-
tion damage from any ships owned by the United States
and used for commercial purposes. Foreign governments
are required by the Convention to make the same waiver.
TITLE II - INTERNATIONAL CONVENTION ON THE
ESTABLISHMENT OF AN INTERNATIONAL FUND FOR
COMPENSATION FOR OIL POLLUTION DAMAGE
Sec. 201. This Section incorporates by reference the
definitions of Title I and adds other definitions
required by the Compensation Fund Convention. It con-
fines the definition of oil to persistent hydrocarbon
mineral oils for the purposes of the Title in accor-
dance with the Compensation Fund Convention. The Lia-
bility Convention includes damage arising from the in-
troduction of whale oil and other oils that are not
hydrocarbon mineral oils. Damage from these sources
was not included in the Compensation Fund Convention
because the contribution system of the Convention could
not be practicably adapted to their inclusion.
Sec. 202. This Section provides that contributions to
the Compensation Fund (an international entity) shall be
made by any person who receives more than 150,000 tons
of contributing oil (crude and fuel oil) in the relevant
calendar year, carried by sea to ports or terminal in-
stallations in the territory of the United States or to
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604 LEGAL COMPILATION—SUPPLEMENT n
ports or terminal installations of a country not party to
the Convention and received in the United States, pro-
vided that contribution in respect of contributing oil
carried to a non-party country is to be made only by the
first receiver in the United States. The Section pro-
vides for the aggregation of receipts of contributing
oil of subsidiaries, commonly controlled entities, and
related groups of persons. It provides that a person
required to contribute must do so upon notification by
the Director of the Compensation Fund and give security
for portions not called for in cash or amounts in arrears
if the Director so requires pursuant to regulations of
the Compensation Fund. The obligation to contribute or
provide security is enforceable in the several district
courts and a person failing to make payment or to pro-
vide security may be liable for a civil penalty of not
more than $5,000 for each such failure. The United
States is obliged to communicate to the Director of the
Compensation Fund the names and addresses of persons from
time to time liable to contribute to the Compensation
Fund.
Sec. 203. This Section provides for the same geographical
coverage of this Title in respect of pollution damage as
is provided for in Title I. It also provides that the
indemnification provision for the benefit of owners of
ships and guarantors (Sec. 205) applies to owners of
ships registered in a State party to the Convention and
to their guarantors.
Sec. 204. This Section is the basic liability Section
of the Title. It provides that the Compensation Fund
is liable for pollution damage arising out of an in-
cident occurring more than 120 days after the entry into
force of the Compensation Fund convention* if (1) no
liability arises under the Liability Convention; (2) be-
cause the owner is financially incapable of fully paying
under the Liability Convention and his financial security
is inadequate; or (3) because the damage exceeds the
owner's liability under the Liability Convention or under
the terms of any other applicable Convention limiting
ship owner liability such as the 1957 Brussels Convention
on Limitation of Shipowner's Liability.** Reasonable
* The purpose of the 120 day delay is for organization
of the Fund after the Convention enters into force.
** The United States is not party to this Convention.
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GUIDELINES AND REPORTS 605
costs incurred by an owner voluntarily for preventive
measures are treated as pollution damage under the
Section in order to induce an owner to take prompt
action. The defenses of the Fund are limited to:
1. Act of war, hostilities, civil war or
insurrection; or
2. That the damage was caused by a warship or
other ship owned or operated by a government on non-
commercial service.
If the ship causing damage cannot be identified, a
claimant must prove that the damage came from one or
more ships. Hence the Compensation Fund is liable for
a number of incidents of pollution damage subject to
defenses under the Liability Convention (compare Title I,
Section 102). The liability of the Fund may be reduced
proportionally to the extent that the Fund proves that
damage results from an act or omission done with the
intent to cause damage by the person who suffered the
damage or the negligence of that person. The Fund must
be exonerated to the same extent that the owner is
exonerated under Title with respect to such a person.
However, the Fund may not be to any extent exonerated
with regard to pollution damage resulting from the taking
of compensable preventive measures. The aggregate amount
of compensation payable by the Fund is limited so that the
total sum of the amount paid by it and under the Liability
Convention does not exceed $32,400,000 or after a decision
of the Assembly of the Fund to increase the limit for
future incidents, any higher amount decided upon up to
$64,800,000. All pollution damage arising out of a single
act of God is deemed under this Section, to have arisen
from a single incident.
Sec. 205. This Section provides that the Fund must reim-
burse an owner or his guarantor for that portion of his
liability under the Liability Convention which exceeds
$108 per ship's ton or $9,000,000, whichever is less, and
which does not exceed $144 per ship's ton or $15,120,000,
whichever is less, if the pollution damage did not result
from the willful misconduct of the owner.* The Fund may
be exonerated from this obligation of reimbursement pro-
portionally to the extent that the incident or damage
*The section also contains a limitation to incidents
occurring more than 120 days after entry into force
of the Compensation Fund Convention.
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606 LEGAL COMPILATION—SUPPLEMENT n
was, as a result of the actual fault or privity of the
owner, caused by the failure of the ship to comply with
the 1954 Oil Pollution Convention, as amended in 1962,
the SOLAS Convention, 1960, the Loadline Convention, 1966,
or the Collision Regulations, 1960 or any amendment to
those Conventions which was determined to be of an im-
portant nature and which has been in force for 12 months
at the time of the incident. The Section also provides
that if the Fund itself assumes directly the obligations
of a guarantor of part of an owner's liability, the owner
may to the extent the obligations are assumed substitute
the guarantee of the Fund for the certification required
by Title I.
Sec. 206. Section 206 provides that a United States or
foreign court having jurisdiction over an action for
pollution damage under the Liability Convention shall
have exclusive jurisdiction over an action against the
Fund which involves the same parties and the same set of
circumstances. It provides that the Fund may intervene
of right as a party in any legal proceedings against an
owner of his guarantor, and provides that where the Fund
has been notified that proceedings have begun, the Fund
will be bound by the decision even if it has not actually
intervened. Section 206 also provides a statute of
limitations for actions against the Fund by claimants,
owners and guarantors. The period given a claimant in
which to bring action is the same period the claimant has
under Title I, Section 104, for actions against an owner
or guarantor. It provides that judgments given against
the Fund by a court having jurisdiction as provided by
the Convention shall be enforceable in the United States
when final, except on the same conditions that a final
judgment against an owner Or a guarantor may be set
aside (Title I, Section 104(c)).
Sec. 207. This Section provides that the Fund's assets
and income shall be exempt from direct taxation in the
United States.
TITLE III - APPORTIONMENT OF CLAIMS AND SUBROGATION;
EXCLUSIVE REMEDY; EFFECTIVE DATE
Sec. 301. This Section defines terms within the context
of this Title.
Sec. 302. Section 302 provides that, where the total
amount of all claims arising out of a single incidenr of
pollution damage exceeds an applicable limit of
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GUIDELINES AND REPORTS 607
liability, each claimant shall be paid that part of his
claim which is proportionate to the total amount of the
established claims. It also provides that a district
court may adopt a plan of distribution to assure that a
claimant in these circumstances receives his proportionate
amount and to enable a court to make disbursements pend-
ing the final determination of the total claims.
Sec. 303. Section 303 provides for rights of subrogation
of an owner, his servant or agents, his guarantor or the
Compensation Fund where compensation is paid by any of
these persons to the claimant prior to distribution of a
fund constituted under Title I. The purpose of this pro-
vision is to encourage prompt out of court settlement of
claims. Likewise rights of subrogation are provided for
other persons to the extent permitted under law. The
United States or any foreign country may acquire a claim
against the Fund by paying compensation for pollution
damage under its national law.
Sec. 304. Pursuant to the Conventions, this Section pro-
vides that the remedies of Act are the exclusive remedy
for claims for pollution damage or preventive measures
against the owner, the guarantor, or the Fund, and that
no action for such claims may be maintained against the
owner's servants or agents.
Sec. 305. This Section provides that the act shall be
effective upon the later of its date of enactment or the
date of entry into force of the Compensation Fund. The
Compensation Fund Convention cannot enter into force
before the Liability Convention. Although the Liability
Convention may enter into force before the Compensation
Fund Convention, it is not contemplated that the United
States would become a party to the Liability Convention
before the entry into force of the Compensation Fund
Convention.
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GUIDELINES AND REPORTS 609
Managing the Land
National
Land Use Policy
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GUIDELINES AND REPORTS 611
THE SECRETARY OF THE INTERIOR
WASHINGTON
February 28, 1973
Dear Mr. [President/Speaker]:
The President announced today in his Environment and
Natural Resources State of the Union Message to Congress
his intention to propose legislation "To establish a
national policy encouraging States to develop and imple-
ment land use programs." Enclosed is that proposed bill.
We recommend that the bill be referred to the
appropriate committee and that it be promptly considered
and enacted.
Land use reform has received increasing public
attention in recent years. President Nixon made it a
keystone of his environmental program in his February 8,
1971, message to Congress in which he discussed the
profound effect of land use decisions on our daily lives
and "the institutional reform so badly needed."
The 92nd Congress made real progress toward
developing sound Federal legislation on land use reform.
Hearings held by the Interior Committees of both houses
captured wide public interest and fostered extensive
public debate on a variety of issues and proposals. The
Senate Interior Committee reported out a bill, S. 632,
which passed the Senate on September 19, 1972.
S. 632 as it passed the Senate was the product of
the public debate and of a constructive dialogue between
the legislative and executive branches. It incorporated,
in our view, the principal features of the Administration's
proposal which the President outlined in his February 8,
1971, message.
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612 LEGAL COMPILATION—SUPPLEMENT n
The progress which the 92nd Congress made in this
field should be the springboard for the 93rd Congress,
so that this important bill can be speedily enacted.
The enclosed bill, therefore, is patterned on S. 632 as
it passed the Senate. It incorporates the concept
stressed by President Nixon two years ago that a
principal thrust of the bill should be to encourage
States to exercise their basic authority to deal with
land use issues which spill over local jurisdictional
boundaries. It leaves local jurisdictions in full
control of local land use issues and carefully defines
the Federal role to preserve the basic authority of
the State to establish land use priorities.
The importance of the legislation forwarded herewith
is to establish, at the State level, a framework within
which specific programs to meet particular problems can
be carried out in a fully coordinated manner and against
a background of a comprehensive land use program which
covers all the States' land and water resources. The
point was repeatedly stressed in the hearings on this
legislation that most of our present land use problems
stem from a piecemeal, fragmented, and uncoordinated
approach to land use decision-making. Unless we can
reverse this pattern, we will not be able to meet the
challenge which lies ahead of us of planning for the
future growth of this country.
The Office of Management and Budget has advised that
the enactment of the attached proposed legislation would
be in accord with the program of the President.
Sincerely,
/s/ Rogers C.B. Morton
Secretary of the Interior
Hon. Spiro T. Agnew Hon. Carl Albert
President of the Senate Speaker of the House
Washington, D.C. 20510 of Representatives
Washington, D.C., 20515
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GUIDELINES AND REPORTS 613
S. 924
H.R. 4862
A
To establish a national policy encouraging states to
develop and implement land use programs.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
That this Act may be cited as the "Land Use Policy and
Planning Assistance Act of 1973."
TITLE I—FINDINGS, POLICY, AND PURPOSE
Findings
Section 101. (a) The Congress hereby finds that
there is a national interest in a more efficient system
of land use planning and decisionmaking and that the rapid
and continued growth of the Nation's population, expanding
urban development, proliferating transportation systems,
large-scale industrial and economic growth, conflicts in
patterns of land use, fragmentation of governmental
entities exercising land use planning powers, and the
increased size, seal*, and impact of private actions,
have created a situation in which land use management
decisions of wide public concern often are being made on
the basis of expediency, tradition, short-term economic
considerations, and other factors which too frequently are
unrelated or contradictory to the real concerns of a
sound national land use policy.
(b) The Congress finds that the task of land use
planning and management is made more difficult by the
lack of understanding of, and the failure to assess, the
land use impact of Federal, regional. State, and local
programs and private endeavors which do not possess or
are not subject to readily discernible land management
goals or guidelines; and that a national land use policy
is needed to develop a national awareness of, and ability
to measure, the land use impacts inherent in most public
and private programs and activities.
(c) The Congress finds that adequate data and infor-
mation on land use and systematic methods of collection,
classification, and utilization thereof are either lacking
or not readily available to public and private land use
decisionmakers; and that a national land use policy must
place a high priority on the procurement and dissemination
of useful land use data.
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614 LEGAL COMPILATION—SUPPLEMENT n
(d) The Congress finds that a failure to conduct
competent land use planning has, on occasion, resulted
in delay, litigation, and cancellation of proposed
significant development, including, but not limited to,
facilities for the development, generation, and trans-
mission of energy, thereby too often wasting human and
economic resources, creating a threat to public services,
and invoking decisions to locate activities in areas of
least public and political resistance, but without
regard to sound environmental, economic, and social land
use considerations.
(e) The Congress finds that many Federal agencies
conduct or assist activities which have a substantial
impact on the use of land, location of population and
economic growth, and the quality of the environment, and
which, because of the lack of a consistent land use policy,
often result in needless, undesirable, and costly con-
flicts among the Federal agencies and among Federal,
State, and local governments, thereby subsidizing
undesirable and costly patterns of development; and that
a concerted effort is necessary to coordinate existing
and future Federal policies and programs and public and
private decisionmaking in accordance with a national land
use policy.
(f) The Congress finds that while the primary
responsibility and constitutional authority for land use
planning and management of non-Federal lands rests with
State and local government, the manner in which this
responsibility is exercised has a tremendous influence
upon the utility, the value, and the future of the public
domain, the national parks, forests, seashores, lakeshores,
recreation and wilderness areas, wildlife refuges, and
other Federal lands; and that the failure to plan or,
in some cases, the existence of poor or ineffective
planning at the State and local levels poses serious
problems of broad national or regional concern and often
results in irreparable damage to commonly owned assets
of great national importance.
(g) The Congress finds that, because the land use
decisions of the Federal Government, including those
concerning the Federal lands, often have a significant
impact upon statewide and local environments and patterns
of development, a national land use policy ought to take
into consideration the needs and interests, and invite
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GUIDELINES AND REPORTS 615
the participation of. State and local governments and
members of the public.
(h) The Congress finds that Federal, regional. State
and local decisions and programs which establish or
influence the location of land uses often determine
whether people of all income levels and races have or are
denied access to decent shelter, to adequate employment,
and to quality schools, health facilities, police and
fire protection, mass transportation, and other public
services; and that such decisions and programs should
seek to provide the maximum freedom and opportunity,
consistent with sound and equitable land use planning
and management standards, for all citizens to live and
conduct their activities in locations of convenience and
personal choice.
Declaration of Policy
SEC. 102. (a) To promote the general welfare and
to provide full and wise application of the resources of
the Federal Government in strengthening the environmental,
recreational, economic, and social well-being of the
people of the United States, the Congress declares that
it is a continuing responsibility of the Federal
Government, consistent with the responsibility of State
and local government for land use planning and management,
to undertake the development and implementation of a
national land use policy which shall incorporate
environmental, esthetic, economic, social, and other
appropriate factors. Such policy shall serve as a guide
for national decisionmaking in Federal and federally
assisted programs which have land use impacts and in
programs which affect the pattern of uses on the Federal
lands, and shall provide a framework for the development
of State and local land use policies.
(b) The Congress further declares that it is the
national policy to—
(1) favor patterns of land use planning, management,
and development which are in accord with sound environ-
mental, economic, and social values and which encourage
the wise and balanced use of the Nation's land resources;
(2) assist State governments to develop and imple-
ment land use programs for non-Federal lands which will
incorporate environmental, esthetic, economic, social, and
other appropriate factors, and to develop a framework for
the formulation, coordination, and implementation of
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616 LEGAL COMPILATION—SUPPLEMENT n
State and local land use policies;
(3) assist the State and local governments to
improve upon their present land use planning and manage-
ment efforts with respect to areas of critical environ-
mental concern, key facilities, development and land use
of regional benefits, and large scale development;
(4) facilitate increased coordination in the
administration of Federal programs and in the planning
and management of Federal lands and adjacent non-Federal
lands so as to encourage sound land use planning and
management; and
(5) promote the development of systematic methods
for the exchange of land use, environmental, economic,
and social data and information among all levels of
government.
(c) the Congress further declares that intelligent
land use planning and management can and should be a
singularly important process for preserving and enhancing
the environment, encouraging beneficial economic develop-
ment, and maintaining conditions capable of improving
the quality of life.
Purpose
SEC. 103. It is the purpose of this Act—
(a) to establish a national policy to encourage and
assist the several States to more effectively exercise
their constitutional responsibilities for the planning
and management of their land base through the development
and implementation of State land us programs designed to
achieve economically and environmentally sound uses of
the Nation's land resources;
(b) establish a grant-in-aid program to assist
State and local governments and agencies to hire and
train the personnel, and establish the procedures,
necessary to develop and implement State land use programs;
(c) establish reasonable and flexible Federal
requirements to give individual States guidance in, and
to condition the distribution of certain Federal funds
on, the establishment and implementation of State land
use programs;
(d) establish the authority and responsibility of
the Secretary of the Interior to administer the grant-
in-aid program, to review statewide land use processes
and methods and State land use programs for conformity
to the provisions of this Act, and to assist the
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GUIDELINES AND REPORTS 617
coordination of activities of Federal agencies with
State land use programs;
(e) develop and maintain a national policy with
respect to federally conducted and federally assisted
projects having land use implications; and
(f) coordinate planning and management of Federal
lands and planning and management of adjacent non-Federal
lands.
TITLE II
Program Development Grants
SEC. 201. (a) The Secretary of the Interior (here-
inafter referred to as the "Secretary") is authorized to
make not more than two annual grants to each State to
assist that State in developing land use program meeting
the requirements set forth in section 202 of this Act.
Such grants shall not exceed 66-2/3 percent of the costs
of program development. Prior to making the first grant,
the Secretary shall be satisfied that such grant will be
used in development of a land use program meeting the
requirements set forth in section 202. Prior to making
a second grant, the Secretary shall be satisfied that
the State is adequately and expeditiously proceeding
with the development of a land use program meeting the
requirements of section 202.
(b) States receiving grants pursuant to this section
shall submit to the Secretary not later than one year
after the date of awarded of the grants a report on, work
completed toward the development of a State land use
program. A State land use program meeting the require-
ments of section 202 of this Act shall satisfy the
requirements for such a report.
(c) The authority to make grants under this section
expires three years from date of enactment.
Program Management Grants
SEC. 202. Following his review of a State's land
use program, the Secretary is authorized to make three
annual grants to that State to assist it in managing
the State land use program. Successive grants for this
purpose may be made annually to any State resubmitting
its land use program for review by the Secretary. Grants
made pursuant to this section shall not exceed 66-2/3%
of the cost of managing the land use program. Grants
authorized by this section shall be made by the Secretary
only if, in his judgment:
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618 LEGAL COMPILATION—SUPPLEMENT n
(a) the State has developed a statewide land use
planning process, which process shall include—
(1) the establishment of a method for the compila-
tion and revision of data related to inventorying areas
of critical environmental concern, areas impacted by
key facilities and development of land use of regional
benefit;
(2) the establishment of a method for the compi-
lation and continuing revision of data related to
population densities and trends, economic characteristics
and projections, recreational needs, transportation
projections and trends, environmental conditions and
trends, governmental service needs related to the areas,
and facilities covered in subsection (a)(1).
(3) the establishment of a method for the preparation
and continuing revision of an inventory of governmental
organization and financial resources available for land
use planning and management within the State and of
State and local programs and activities which have a
land use impact of more than local concern;
(4) the provision, where appropriate, of technical
assistance for, and training programs for State and
local agency personnel concerned with, the development
and implementation of State and local land use programs;
(5) the establishment of arrangements for the
exchange of land use planning information and data among
State agencies and local governments, with the Federal
Government, among the several States and interstate
agencies, and with members of the public;
(6) the establishment of a method for assuring that
all State and local agency programs and services which
significantly affect land use are consistent with the
State land use program;
(7) the conducting of public hearings, preparation
of reports, and soliciting of comments on reports
concerning the statewide land use planning process or
aspects thereof;
(8) a process for public education and the
participation by the public and the appropriate officials
or representatives of local governments in the planning
process and the formulation of guidelines, rules, and
regulations for the administration of the planning process;
(9) the consideration of the interstate aspects of
land use issues which involve two or more states.
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GUIDELINES AND REPORTS 619
(10) a method for exercising State control over the
use of land within areas of critical environmental con-
cerns and area impacted by key facilities;
(11) a method to control development in areas prone
to natural hazards such as flood plains so as to avoid
loss of life or property.
(12) a method for assuring that local regulations do
not restrict or exclude development and land use of
regional benefit;
(13) a policy for influencing the location of new
communities and a method for assuring appropriate controls
over the use of land around new communities;
(14) a method for controlling proposed large-scale
development of more than local significance in its impact
upon the environment;
(15) a system of controls and regulations pertaining
to areas and developmental activities previously listed
in this subsection which are designed to assure that any
source of air, water, noise or other pollution will not
be located where it would result in a violation of any
applicable air, water, noise or other pollution standard
or implementation plan;
(16) a method for periodically revising and uprating
the State land use program to meet changing conditions;
and
(17) a detailed schedule for implementing all aspects
of the program.
(18) methods for insuring that Federal lands within
the State, including but not limited to units of the
national park system, wilderness areas, and game and wild-
life refuges, are not damaged or degraded as a result of
inconsistent land use patterns in the same immediate
geographical region.
For purposes of complying with paragraphs (1)
through (18) of this subsection (a), any one or a combi-
nation of the following general techniques is acceptable:
(i) direct State land use planning and regulation; or
(ii) State administrative review of local land use plans,
regulations and implementation with full powers to approve
or disapprove.
(b) the State has an eligible State land use
planning agency established by the Governor of such State
or by law, which agency shall—
(1) have primary authority and responsibility for
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620 LEGAL COMPILATION—SUPPLEMENT n
the development and administration of a State land use
program provided for in this section;
(2) have a competent and adequate interdisciplinary
professional and technical staff and, whenever appropriate,
the services of special consultants;
(3) give priority to the development of an adequate
data base for a statewide land use planning process
using data available from existing sources wherever
feasible;
(4) coordinate its activities with the planning
activities of all State agencies undertaking federally
financed or assisted planning programs insofar as such
programs relate to land use; the regulatory activities
of all State agencies enforcing air, water, noise, or
other pollution standards; all other relevant planning
activities of State agencies; flood plain zoning plans
approved by the Secretary of the Army pursuant to the
Flood Control Act of 1960, as amended; the planning
activities of areawide agencies designated pursuant to
regulations established under section 204 of the Demon-
stration Cities and Metropolitan Development Act of 1966
(80 Stat. 1255, 1262-3), as amended, and Title IV of the
Intergovernmental Cooperation Act of 1968; the planning
activities of local governments; and the planning
activities of Federal agencies;
(5) have authority to provide a process for public
education and citizen participation including but not
limited to conducting public hearings, with adequate
public notice, allowing full public participation in
the development of the State land use program; and
(6) have authority to make available to the public
promptly upon request land use data and information,
studies, reports, and records of hearings.
(c) In designating areas of critical environmental
concern, the State has not excluded any areas of critical
environmental concern to the Nation.
(d) In controlling land use in areas of critical
environmental concern to the Nation, the State has
procedures to prevent action (and, in the case of
successive grants, the State has not acted) in substantial
disregard for the purposes, policies and requirements of
its land use program.
(e) State laws, regulations and criteria affecting
areas and developmental activities listed in subsection
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GUIDELINES AND REPORTS 621
(a) of this section are in accordance with the policy,
purpose and requirements of this Act; and that State
laws, regulations and criteria affecting land use in the
coastal zone and estuaries further take into account:
(1) the aesthetic and ecological values of wetlands
for wildlife habitat, food production sourees for aquatic
life, recreation, sedimentation control, and shoreland
storm protection; and
(2) the susceptibility of wetlands to permanent
destruction through draining, dredging, and filling, and
the need to restrict such activities.
(f) The State utilizes for the purpose of furnishing
advice to the Federal Government as to whether Federal
and federally assisted projects are consistent with the
State land use program, procedures established pursuant
to section 204 of the Demonstration Cities and Metro-
politan Development Act of 1966 and Title IV of the
Intergovernmental Cooperation Act of 1968.
Federal Review and Determination of
Grant Eligibility
SEC. 203. (a) During the five complete fiscal year
period following the enactment of this Act, the Secretary,
before making a grant pursuant to this Act, shall consult
with the heads of all Federal agencies listed in sub-
section (d) of this section and of all other Federal
agencies which conduct or participate in construction,
development, assistance, or regulatory programs signi-
ficantly affecting land use in the State, and with the
National Advisory Board on Land Use Policy pursuant to
subsection (c) of section 203 of this Act, and shall
consider their views and recommendations.
(b) The Secretary shall determine a State eligible
or ineligible for a grant pursuant to this Act not later
than six months following receipt for review of the
State's application for its first grant, a State's report
on its previous grant, or the State's land use program
pursuant to section 202.
(c) Pursuant to subsection (a) of this section, the
Secretary shall consider the views of the heads of con-
cerned agencies including but not limited to—
(1) the Department of Agriculture;
(2) the Department of Commerce;
(3) the Department of Defense;
(4) the Department of Health, Education, and Welfare;
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622 LEGAL COMPILATION—SUPPLEMENT n
(5) the Department of Housing and Urban Development;
(6) the Department of Transportation;
(7) the Atomic Energy Commission;
(8) the Federal Power Commission; and
(9) the Environmental Protection Agency.
(d) A State may at any time revise its State land
use program: Provided, That such revision does not render
the State land use program inconsistent with the require-
ments of this Act: And provided further. That any
significant revision is reported to the Secretary. The
Secretary shall determine whether such revision would
render the State land use program inadequate for purposes
of complying with the requirements of this Act, and shall
inform the State of his determination.
Consistency of Federal Actions with State
Land Use Programs
SEC. 204. (a) Federal projects and activities
significantly affecting land use, including but not
limited to permits and licenses, grant, loan, or guarantee
programs, such as mortgage and rent subsidy programs and
water and sewer facility construction programs, but
excluding special and general revenue sharing, shall be
consistent with State land use programs which conform to
the provisions of section 202 of this Act, except in cases
of overriding national interest as determined by the
President. Procedures provided for in regulations issued
by the Office of Management and Budget pursuant to the
criteria specified in section 204 of the Demonstration
Cities and Metropolitan Development Act of 1966 (80 Stat.
1365, 1262-3), as amended, and title IV of the Inter-
governmental Cooperation Act of 1968 (82 Stat. 1098, 1103-
4), together with such additional procedures as the
Office of Management and Budget may determine are
necessary and appropriate to carry out the purposes of
this Act, shall be utilized in the determination of whether
Federal projects and activities are consistent with State
land use programs funded under this Act.
(b) Any State or local government submitting an
application for Federal assistance for any activity
having significant land use implications in an area or
for a use subject to a State land use program in a State
found eligible for grants pursuant to this Act shall
transmit to the relevant Federal agency the views of the
State land use planning agency and/or the Governor and,
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GUIDELINES AND REPORTS 623
in the case of an application of a local government,
the views of such local government and the relevant
areawide planning agency designated pursuant to section
204 of the Demonstration Cities and Metropolitan Develop-
ment Act of 1966 and/or title IV of the Intergovernmental
Cooperation Act of 1968, as to the consistency of such
activity with the program: Provided, That, if a local
government certifies that a plan or description of an
activity for which application is made by the local
government has lain before the State land use planning
agency and/or the Governor for a period of sixty days
without indication of the views of the land use planning
agency and/or the Governor, the application need not be
accompanied by such views.
(c) Federal agencies conducting or assisting public
works activities in areas not subject to a State land
use program in a State found eligible for grants pursuant
to this Act shall, to the extent practicable, conduct
such activities in such a manner as to minimize any
adverse impact on the environment resulting from decisions
concerning land use.
Federal Actions in the Absence of State
Eligibility
SEC. 205. (a) The Secretary shall have authority
to terminate any financial assistance extended to a
State under this Act and withdraw his determination of
grant eligibility whenever the Secretary finds that the
statewide land use planning process or the State use
program does not meet the requirements of this Act.
(b) Where any major Federal action significantly
affecting the use of non-Federal lands is proposed after
three fiscal years from the date of enactment of this
Act, in a State which has not been found eligible for
grants pursuant to this Act, the responsible Federal
agency shall hold a public hearing in such State at
least one hundred eight days in advance of the proposed
action concerning the effect of the action on land use,
taking into account the relevant considerations set out
in section 202 of this Act, and shall make findings
which shall be submitted for review and comment by the
Secretary and were appropriate, by the Secretary of
Housing and Urban Development. Such findings of the
responsible Federal agency and comments of the Secretary
and, where appropriate, the Secretary of Housing and
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624 LEGAL COMPILATION—SUPPLEMENT n
Urban Development shall be made part of the detailed
statement required by section 102(2)(C) of the National
Environmental Policy Act (83 Stat. 852, 853). This
section shall be subject to exception where the
President determines that the interests of the united
States so require.
(c) Section 15 of the Airport and Airway Development
Act (P.L. 91-258, 84 Stat. 227) is amended by adding the
following new subsection:
"(d) Any State which has not been found eligible
for a management grant under section 202 of the National
Land Use Policy Act by June 30, 1976, shall suffer a
reduction of 7% of its entitlement to Federal funds
apportioned for airport development pursuant to para-
graphs (A) and (B) of subsection (a)(1) and paragraphs
(A) and (B) of subsection (a)(2) of this section, in
fiscal year 1977. If that State has not been found
eligible by June 30, 1977, it shall suffer a reduction
of 14% in fiscal year 1978, and if not found eligible by
June 30, 1978, shall suffer a reduction of 21% in fiscal
year 1979„ Any funds so withheld shall be included in the
aggregate of airport and airway development funds and
shall be made available to States found eligible for
financial assistance under section 202 of the National
Land Use Policy Act according to the criteria prescribed
for the apportionment of such funds, excluding for
purposes of computation any State or States found
ineligible for financial assistance under section 104
of the National Land Use Policy Act."
(d)(1) Section 104, title 23 of the United States
Code is amended by adding the following subsection:
"(f) Any State which has not been found eligible
for a management grant under section 202 of the National
Land Use Policy Act by June 30, 1976, shall suffer a
reduction of 7% of its entitlement to Federal-aid high-
way funds exclusive of planning and research which would
otherwise be apportioned to such state in fiscal year
1977. If that State has not been found eligible by June
30, 1977, it shall suffer a reduction of 14% in fiscal
year 1978, and if not found eligible by June 30, 1978,
shall suffer a reduction of 21% in fiscal year 1979.
Any funds so withheld shall be included in the aggregate
of Federal-aid highway funds and shall be made available
to State found eligible for assistance under section 202
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GUIDELINES AND REPORTS 625
of the National Land Use Policy Act according to criteria
prescribed for the apportionment of Federal-aid highway
funds, excluding for purposes of computation any State or
States found ineligible for financial assistance under
section 202 of the National Land Use Policy Act."
(2) Section 109(f), title 23 of the United States
Code is amended by deleting "or control of" in the first
sentence.
(e) Subsection 5(b) of the Land and Water Conser-
vation Fund Act of 1965 (P.L. 88-578, 78 Stat. 897) is
amended by adding after the second paragraph the following
paragraph:
"Any State which has not been found eligible for a
management grant under section 202 of the National Land
Use Policy Act by June 30, 1976, shall suffer a reduction
of 7% of its entitlement under paragraphs (1) and (2)
of this subsection in fiscal year 1977. If that State
has not been found eligible by June 30, 1977, it shall
suffer a reduction of 14% in fiscal year 1978, and if
not found eligible by June 30, 1978, shall suffer a
reduction of 21% in fiscal year 1979. Any funds so
withheld shall be included in the aggregate of land and
water conservation funds and shall be made available
according to the criteria prescribed for the apportion-
ment of such funds, excluding for purposes of computation
any State or States found ineligible for financial
assistance under section 202 of the National Land Use
Policy Act."
Title III - Administration of Land Use Policy
National Advisory Board on Land Use Policy
SEC. 301. (a) The Secretary is authorized and
directed to establish a National Advisory Board on Land
Use Policy (hereinafter referred to as the "Board").
(b) The Board shall be composed of:
(1) the Secretary of his designated representative
who shall serve as Chairman;
(2) representatives of the Departments of Agriculture;
Commerce; Defense; Health, Education, and Welfare; Housing
and Urban Development; and Transportation; the Atomic
Energy Commission; and the Environmental Protection Agency,
appointed by the respective heads thereof;
(3) observers from the Council on Environmental
Quality, the Federal Power Commission, appointed by the
respective heads thereof; and
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626 LEGAL COMPILATION—SUPPLEMENT n
(4) representatives of such other Federal agencies,
appointed by the respective heads thereof, as the
Secretary may request to participate when matters
affecting their responsibilities are under consideration.
(c) The Board shall meet regularly at such times
as the Chairman may direct and shall—
(1) provide the Secretary with information and
advice concerning the relationship of policies, programs,
and activities established or performed pursuant to
this Act to the programs of the agencies represented on
the Board;
(2) render advice to the Secretary and to the agency
designated pursuant to Section 402 concerning proposed
guidelines, rules, and regulations for the implementation
of the provisions of this Act;
(3) assist the Secretary and the agencies represented
on the Board in the coordination of the review of State
land use planning programs.
(4) provide advice on such land use policy matters
as the Secretary may refer to the Board for its con-
sideration; and
(5) provide reports to the Secretary on land use
policy matters which may be referred to the Board by
the heads of Federal agencies through their respective
representatives on the Board.
Interstate Coordination
SEC. 302. (a) The States are authorized to make
available to appropriate interstate entities a reasonable
portion of the funds provided to such States under the
provisions of this Act: Provided, however, That such
interstate entities shall afford the public the same
degree of participation as is required by Section and
Provided further, That nothing in this subsection shall
be construed to affect the allotment of funds as pro-
vided in Sections of this Act.
(b) By the adoption of an appropriate Act, Congress
hereby authorizes States possessing coherent geographic,
environmental, demographic, or economic characteristics
which would serve as reasonable bases upon which to
coordinate land use planning and programs in interstate
areas to negotiate interstate compacts for the purpose
of such coordination, with such terms and conditions as
to them seem reasonable and appropriate: Provided,
however, That such compacts shall provide for an
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GUIDELINES AND REPORTS 627
opportunity for participation in the coordination process
by Federal and local governments and agencies as well as
members of the public engaged in activities which affect
or are affected by land use planning and programs.
Title IV - General
Definitions
SEC. 401. For the purpose of this Act—
(a) The term "State" means a State, the District
of Columbia, the Commonwealth of Puerto Rico, or any
territory or possession of the United States.
(b) The term "local government" means any general
purpose county or municipal government, or any regional
combination thereof, or, where appropriate, any other
public agency which has land use planning authority.
(c) The term "Federal lands" means any land owned
by the United States without regard to how the United
States acquired ownership of the land and without regard
to the agency having responsibility for management thereof,
except lands held in trust for the benefit of Indians,
Aleuts, and Eskimos.
(d) The term "non-Federal lands" means all lands
which are not "Federal lands" as defined in subsection
(c) of this section and are not held by the Federal
Government in trust for the benefit of Indians, Aleuts,
and Eskimos.
(e) The term "areas of critical environmental
concern'r means areas as designated by the State on non-
Federal lands where uncontrolled development could result
in irreversible damage to important historic, cultural,
or esthetic values, or natural systems or processes which
are of more than local significance, or could unreasonably
endanger life and property as a result of natural
hazards of more than local significance. Such areas
shall include—
(1) coastal wetlands, marshes, and other lands
inundater by the tides;
(2) seaches and dunes;
(3) significant estuaries, shorelands, and flood
plains of rivers, lakes, and streams;
(4) areas of unstable soils and high seismic
activity;
(5) rare or valuable ecosystems;
(6) significant agricultural, grazing, and water-
shed lands;
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(7) forests and related land which require long
stability for continuing renewal;
(8) scenic or historic areas; and
(9) such additional areas as a State determines to
be of critical environmental concern.
(f) The term "key facilities" means:
(1) public facilities on non-Federal lands which
tend to induce development and urbanization of more than
local impact, including but not limited to:
(A) any major airport designed to serve as a
terminal for regularly scheduled air passenger service or
one of State concern;
(B) interchanges between the Interstate Highway
System and frontage access streets or highways; major
interchanges between other limited access highways and
frontage access streets or highways;
(C) frontage access streets and highways of State
concern; and
(D) major recreational lands and facilities;
(2) major facilities on non-Federal lands for the
development, generation, and transmission of energy.
(g) The term "development and land use of regional
benefit" means land use and private development on
non-Federal lands for which there is demonstrable need
affecting the interests of constituents of more than one
local government which outweighs the benefits of any
applicable restrictive or exclusionary local regulations.
(h) The term "large scale development" means
private development including new communities and large
seal a subdividions on non-Federal lands which, because
of its magnitude or the magnitude of its effect on the
surrounding environment, is likely to present issues of
more than local significance in the judgment of the
State. In determining what constitutes "large scale
development" the State should consider, among other
things, the amount of pedestrian or vehicular traffic
likely to be generated; the number of persons likely to
be present; the potential for creating environmental
problems such as air, water, or noise pollution; the
size of the site to be occupied; and the likelihood
that additional or subsidiary development will be
generated.
Guidelines
SEC. 402. The President is authorized to designate
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GUIDELINES AND REPORTS 629
an agency or agencies to issue guidelines to the Federal
agencies to assist them in carrying out the requirements
of this Act.
Biennial Report
SEC. 403. The Secretary, with the assistance of
the Board, shall report biennially to the President and
the Congress on land resources, uses of land, and the
current and emerging problems of land use.
Utilization of Personnel
SEC. 404. Upon request of the Secretary, the
head of any Federal agency is authorized:
(a) to furnish such information as may be necessary
for carrying out the functions of this Act and as may
be available to or procurable by such agency, and
(b) to detail to temporary duty, on a reimbursable
basis, such personnel within his administrative
jurisdiction as the Secretary may i.eed or believe to be
useful for carrying out the functions of this Act, each
such detail to be without loss of seniority, pay, or
other employee status.
Technical Assistance
SEC. 405. The Secretary may provide directly or
through contracts, grants, or other arrangements,
technical assistance to any State found eligible for
grants pursuant to this Act to assist such State in the
performance of its functions under this Act.
Hearings and Records
SEC. 406. (a) For the purpose of carrying out
the provisions of this Act, the Secretary may hold such
hearings, take such testimony, receive such evidence,
and print or otherwise reproduce and distribute so
much of the proceedings and reports thereon as he deems
advisable.
(b) the Secretary is authorized to administer oaths
when he determines that testimony shall be taken or
evidence received under oath.
(c) In the event the Secretary determines that a
State is ineligible for grants pursuant to this Act, or,
having found a State eligible for such grants, subse-
quently determines that grounds exist for withdrawal of
such eligibility, he shall following adequate public
notice, conduct a public hearing on such determination
of ineligibility at which time the State and all other
interested parties may be heard.
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630 LEGAL COMPILATION—SUPPLEMENT n
Financial Records
SEC. 407. (a) Each recipient of a grant pursuant
to this Act shall make reports and evaluation in such
form, at such times, and containing such information
concerning the status, disposition, and application of
Federal funds and the operation of the statewide land
use planning process or State land use program as the
Secretary may require by regulations published in the
Federal Register, and shall keep and make available
such records as may be required by the Secretary for the
verification of such reports and evaluations.
(b) The Secretary and the Comptroller General of
the United states, or any of their duly authorized
representatives, shall have access for the purpose of
audit and examinationto any books, documents, papers,
and records of a recipient of a grant pursuant to this
Act which are pertinent to the determination that funds
granted are used in accordance with this Act.
Authorization of Appropriations
SEC. 408. For each of the five fiscal years
following the enactment of this Act, there are authorized
to be appropriated to the Secretary for grants to the
States not more than $40,000,000 for each of the first
two fiscal years and $30,000,000 for each of the next
three fiscal years to carry out the purposes of this
Act.
SEC. 409. For each of the five full fiscal years
following enactment of this Act, there are authorized
to be appropriated $10,000,000 annually to the Secretary
of the Interior to be used exclusively for the
administration of this Act. After the end of the fourth
fiscal year after the enactment of this Act, the Secretary
shall review the programs established by this Act and
shall submit to Congress his analysis and such
recommendations for amendments to the Act as he deems
appropriate.
Effect on Existing Laws
SEC. 410. Nothing in this Act shall be construed—
(a) to expand or diminish Federal, interstate or
State jurisdiction, responsibility, or rights in the
field of land and water resources planning, development
or control; to displace, supersede, limit, or modify any
interstate compact or the jurisdiction or responsibility
of any legally established joint or common agency of
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GUIDELINES AND REPORTS 631
two or more States, a State, or a region and the Federal
Government; to limit the authority of Congress to authorize
and fund projects;
(b) to change or otherwise affect the authority or
responsibility of any Federal official in the discharge
of the duties or his orrice except as new authority or
responsibilities have been added by the provisions of
this Act;
(c) as superseding, modifying, or repealing existing
laws applicable to the various Federal agencies which
are authorized to develop or participate in the develop-
mentof land and water resources or to exercise licensing
or regulatory functions in relation thereto; or to
affect the jurisdiction, powers, or perogatives of the
International Joint Commission, United States and Canada,
the Permanent Engineering Board and the United States
operating entity or entities established pursuant to
the Columbia River Basin Treaty, signed at Washington,
January 17, 1961, or the International Boundary and
Water Commission, United States and Mexico.
(d) as granting to the Federal Government any of the
constitutional or statutory authority now possessed by
State and local governments to zone non-Federal lands.
(e) to delay or otherwise limit the adoption and
vigorous enforcement, by State, or standards, criteria,
emission or effluent limitations, monitoring require-
ments, or implementation plans required by the Federal
Water Pollution Control Act, the Clean Air Act, or other
Federal laws controlling pollution; and
(f) to adopt any Federal policy or requirement
which would prohibit or delay States or local govern-
ments from adopting or enforcing any law or regulation
which results in prohibition or control to a degree
greater than required by this Act of land use development
in any area over which the State or local government
exercises jurisdiction.
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632 LEGAL COMPILATION—SUPPLEMENT n
LAND USE POLICY & PLANNING ASSISTANCE ACT OF 1973
SECTION-BY-SECTION ANALYSIS
TITLE I - Findings, Policy and Purpose
SEC. 101. Congress recognizes in this section that
there is a national interest in promoting better land use
planning and decisionmaking. The section lists some of
the factors which often cause land use decisions to be
made on the basis of expediency and short term economic
considerations without recognizing the real impacts. The
section lists some of the undesirable results.
SECs. 102 and 103. Declaration of Policy and Purpose.
The policy and purpose of the Act is two fold: (a) to
promote the Nation's wellbeing by better planning the use
of its national lands and water resource heritage and (b)
to assist and encourage each State to improve its land use
planning and decision-making processes. This reflects the
joint responsibility under the Federal system. Land use
planning and management is primarily a State responsibi-
bilitye However, because of the national importance of
rational land use and because the natural systems on
which all life depends do not recognize State boundaries,
the Federal Government has an important responsibility
for coordinating and assisting the States' efforts.
TITLE II
SEC. 201. Program Development Grants
This section authorizes the Secretary to make not
more than two annual grants to each State to cover up to
two-thirds of the cost of developing a program meeting the
requirements of section 202. This authority expires 3
years after enactment.
SEC. 202 program Management Grants
This section authorizes the Secretary to make not
more than three annual grants to each State to cover up to
two-thirds of the costs of managing its land use program.
Subsections (a)-(f) contain criteria which the pro-
gram must meet to qualify for management grants. The
criteria fall in two basic categories: (I) those designed
to improve the States' land use planning capability and
(II) those designed to improve the States' land use regu-
latory processes.
The first category requires States to develop methods
for inventorying its resources and for projecting its
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GUIDELINES AND REPORTS 633
growth trends and resource needs, including the social
and economic considerations involved. Resources include
financial, and governmental as well as natural. The
State must develop methods for exchanging planning in-
formation and for educating the public and soliciting its
views. It is important to note that the requirements in
this category are for methods to accomplish certain re-
sults not for the results themselves.
The second category requires that the State has
methods to control land use. Under the present system,
the authority to control land use resides in the State
but is exercised, by delegation, almost exclusively by
local governments, through local zoning boards. Some of
the decisions made at the local level .have important con-
sequences of more than local significance (although the
vast majority of such decisions do not). The second
category of criteria requires the States to develop
methods to reassert control over those decisions with
greater than local significance. The bill sets forth
four areas where the State must exercise control over
such decisions:
1. Areas of critical environmental concern such as
beaches, wetlands and flood plains. Any area where uncon-
trolled development could cause irreversible damage to
important natural systems or historic, cultural or
aesthetic values. It also includes areas where uncon-
trolled development could unreasonably endanger life or
property as a result of natural hazards like floods and
earthquakes.
2. Areas impacted by "key facilities", which is
defined as public facilities which tend to induce growth
and development of more than local significance. High-
ways, highway interchanges and airports are good examples
of facilities which tend to attract rapid development.
3, Large scale development, such as large residen-
tial subdivisions or other private development which can
have an impact outside of the local jurisdiction in which
it is located. This also includes new communities.
4. Areas proposed for development of regional bene-
fit. This includes such facilities as waste treatment
plants, and low income housing, the benefits of which to
a broader community outweigh the detriment to the smaller
community which may seek to exclude it.
The State may choose to exercise its control over
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634 LEGAL COMPILATION—SUPPLEMENT n
the decisions which it decides fall into these 4 areas
either by direct control or by a procedure for reviewing
local decisions. Federal lands and Indian trust lands
are excluded by definition from these four areas.
The Secretary must be satisfied that the State pro-
gram covers areas which are of critical environmental
concern to the Nation and must have procedures to prevent
action with respect to those areas which is in disregard
of the policy, purpose and requirements of the State's
land use program.
Subsection 202(a)(6) requires that all State and
local agency programs and services which significantly
affect land use be consistent with an approved State
land use program. This provision will facilitate im-
provement of both the planning capability as well as the
regulatory process„
SEC. 203. Federal Review and Determination of Grant
Eligibility
The section provides that in determining State eli-
gibility for a grant the Secretary shall consult with and
consider the views of other Federal agencies. It also
provides that he must act within six months and estab-
lishes procedures for a State to revise its plan.
SEC. 204 Consistency of Federal Actions with State
Land Use Programs
This section requires that Federal projects and
activities significantly affecting land use must be con-
sistent with approved State land use programs which meet
the requirements for receiving a management grant under
section 202. This provision gives the States a means of
influencing Federal activities in the State, including
those on Federal lands where they impact non-Federal
lands covered by the State land use program. It includes
Federal permit and license programs as well as projects
assisted with Federal funds. The only exception would be
where the President or his delegate determines an over-
riding National interest.
State or local agencies applying for Federal funds
must report whether the State land use planning agency
or the Governor considers the proposed project to be
consistent with the State Land Use Program.
SEC. 205. Federal Actions in the Absence of State
Eligibility.
If a State fails to establish or maintain eligibility
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GUIDELINES AND REPORTS 635
for grants under the Act the following consequences may
occur:
(a) It will not receive further grants under the Act.
(b) After 3 years from enactment, Federal agencies
may not take any major action significantly affecting the
use of non-Federal lands in that State without having
first held a public hearing in that State at least 180
days in advance of the proposed action to explore the
land use impact based on the considerations set forth
in section 202.
However, where the Federal agency affected has not
already established procedures involving public hearings
with opportunities for public participation in the agency
decision-making process and preparation of a detailed
statement, then it is intended that this established pro-
cedure be followed concerning the effect of the proposed
action on land use under this section or concerning con-
sistency with land use programs under section 204.
(c) After June 30, 1976, the State shall lose in
the next fiscal year 7% of the Federal funds that it
would otherwise receive for airport development, highway
construction, and recreation area acquisition and develop-
ment. If the ineligibility persists beyond June 30, 1977,
and June 30, 1978, the loss shall be 14% and 21% res-
pectively in the next fiscal year. Highways, airports
and major recreation facilities are major determinants of
State and regional land use patterns; this provision
would require the States to develop and manage a land use
program as an additional requirement for receiving Federal
funds for these purposes.
TITLE III - Administration of Land Use policy
SEC. 301. National Advisory Board on Land Use Policy
This Advisory Board, composed of representatives of
certain designated Federal agencies plus other undesignated
agencies as the Secretary may request in particular cir-
cumstances, is designed to relate the policies and programs
developed under the Act to the programs of the various
Federal agencies and vice versa.
SEC. 302. Interstate Coordination
This section is intended to encourage the use of
interstate organizations to implement those aspects of a
State's land use program which involve issues which cross
State boundaries or where greater efficiency may be
achieved. Subsection (a) authorizes States to allocate a
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portion of the Federal grant made under this Act to such
interstate entities.
TITLE IV. General
SEC. 401. Definitions
The most significant definitions are: "areas of cri-
tical environmental concern", "key facilities",
"development and land use of regional benefit'r and "large
scale development," These terms, as used in section 202
define the categories of land use decisions which have
more than local significance and over which the State
must assert control.
SEC. 402. Guidelines
This section authorized the President to designate
an agency to issue guidelines to assist the Federal
agencies in carrying out the requirements of the Act.
SEC. 403. Biennial Report
This section requires the Secretary to report
biennially to the President and Congress on land resources
and land use problems, current and emerging.
SEC. 404. Utilization of Personnel
This section authorizes any Federal agency, upon
request by the Secretary, to furnish information or to
detail personnel for temporary duty.
SEC. 405. Technical Assistance
The Secretary may provide technical assistance to
States in the performance of their functions under the Act.
SEC. 406. Hearings and Records
This section authorizes the Secretary to hold
hearings and requires him to do so if he determines that
a State is ineligible for a grant.
SEC. 407. Financial Records
This section requires various reports and records to
be kept and made available by the grant recipients.
SECo 408. Authorization of Appropriations
This section authorizes the appropriation for grants
of $40 million in each of the first two fiscal years
following enactment.
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GUIDELINES AND REPORTS 637
Managing the Land
Powerplant
Siting
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GUIDELINES AND REPORTS 639
THE SECRETARY OF THE INTERIOR
WASHINGTON
February 15, 1973
Dear Mr. [President/Speaker]:
In accordance with today's Presidential Message on the
Environment, I am enclosing our proposed Electric
Facilities Siting Act of 1973, which we recommend be
enacted.
The bill addresses the increasingly serious problem of
accommodating protection of the environment and
expanding demand for electric power. Meeting future
power requirements will mean building a substantial
number of major new electric generation and trans-
mission facilities. We currently estimate, for
example, that between now and 1990 more than 300 new
generating plants of the size covered by the bill (300
megawatts or more) will be required to meet power
demands at projected rates of development. In siting
major generation or transmission facilities, signifi-
cant environmental problems may occur. Experience
indicates that these problems can be extremely serious
unless plans are made long in advance of proposed con-
struction and are thoroughly considered by the public
and affected governmental agencies. Also needed is
complete public and governmental review of the
facilities themselves and related sites beginning
several years in advance of construction.
The bill requires all utilities to undertake long-
range (10 years) planning for electric facilities,
giving the public and governmental agencies full
opportunity to review and comment on the plans
developed. It requires utilities to apply for
approval of particular electric facility sites 3 to
5 years before construction begins. For non-Federal
electric utilities, application is made to a State
certifying agency, which the bill calls on each State
to designate. For Federal utilities, the Secretary of
the Interior serves as the certifying agency. Other
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640 LEGAL COMPILATION—SUPPLEMENT n
necessary Federal authorizations are obtained for both
Federal and non-Federal utilities by applying to the
appropriate Federal agencies through a new Federal
Electric Facilities Siting Panel, of which the
Secretary of the Interior is chairman. The Panel is
responsible for coordinating and expediting Federal
reviews and for developing, with the certifying
agencies, consolidated procedures and forms to be used
in applying for sites.
The bill is based in substantial measure on the power
plant siting legislation which the Administration pro-
posed to the 92d Congress, but it makes a number of
changes which further consideration and subsequent
events indicate will improve it. It requires all
governmental action on siting applications — Federal,
State and local — to be completed within eighteen
months of the date of application. It consolidates
procedures for compliance with the National Environ-
mental Policy Act so that one — and only one —
environmental impact statement is prepared. The state-
ment would be prepared by the certifying agency with
full participation by those affected, including other
Federal, State and local agencies, and it would be
used by all agencies in making decisions subject to
their jurisdiction.
Unless we act promptly, the problems we have been
facing in locating electric facilities will become
much worse. Because I am convinced that it will best
serve the dual purposes of protecting environmental
values while assuring an adequate supply of electricity,
I urge the Congress to enact the enclosed legislation.
The Office of Management and Budget advises that enact-
ment of this legislation would be in accord with the
President's program.
Sincerely yours,
/s/ Rogers C.B. Morton
Secretary of the Interior
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GUIDELINES AND REPORTS 641
Honorable Spiro T. Agnew
President of the Senate
Washington, D. C.
Honorable Carl Albert
Speaker of the
House of Representatives
Washington, D. C.
Enclosure
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642 LEGAL COMPILATION—SUPPLEMENT n
S. 935
H.R. 4874
A BILL
To assure protection of environmental values while
facilitating construction of needed electric
power supply facilities, and for other purposes.
Be it enacted by the Senate and House of
Representatives of the United states of America in
Congress assembled.
SHORT TITLE
SEC. 1. This Act may be cited as the "Electric
Facilities Siting Act of 1973.™
FINDINGS AND PURPOSES
SEC. 2. The Congress, in furtherance of the
national environmental policy as set forth in the
National Environmental Policy Act of 1969 (83 Stat.
852; 42 U.S.C. 4321), and the national electric
energy policy as set forth in section 202(a) of the
Federal Power Act (49 Stat. 848; 16 U.S.C. 824(a)),
hereby finds and declares the national public interest
in the environment, the interest of interstate commerce,
the interest of public and private investors in elec-
tric utility facilities, and the interest of consumers
of electric energy require—
(a) that electric facilities adeguate to the
Nation's need for a reliable electric power supply be
constructed upon a timely basis, and in a manner conso-
nant with the preservation of important environmental
values and wise comprehensive use of the Nation's air,
land, water and other resources for all beneficial
purposes public and private;
(b) that all of the Nation's electric utilities
should be required to engate in adequate open long-
range planning, and certifying bodies should be
established for the expeditious preconstruction review
of electric facilities and related sites in order to
avoid undue delays in the construction of needed
electric facilities and to provide for full and
timely consideration of environmental consequences
in advance of such construction;
(c) that appropriate electric facilities and
related sites should be subject to expeditious
coordinated approval at the Federal and State levels.
DEFINITIONS
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GUIDELINES AND REPORTS 643
SEC. 3. As used in this Act—
(a) "electric utility" means any individual or
corporation which owns or operates an electric facility,
or plans to own or operate such facility, however
organized or owned, whether investor owned, publicly
owned or cooperatively owned, including a "State" or
a "municipality" as defined in sections 3(6) and 3(7)
of the Federal Power Act (49 Stat. 833; 16 U.S.C. 796),
but not the United States or an agency, authority, or
instrumentality thereof, or any corporation which
directly or indirectly is wholly owned by the United
States, its agencies, authorities or instrumentalities;
(b) "Federal electric utility" means the United
States, an agency, authority, or instrumentality
thereof, or any corporation which directly or
indirectly is wholly owned by the United States, its
agencies, authorities, or instrumentalities, which
owns or operates an electric facility or plans to own
or operate such facility;
(c) "electric facility" means electric gener-
ating equipment and associated facilities designed
for, or capable of, operation at a capacity of 300
megawatts or more, or any additions thereto of 200
megawatts or more, or electric transmission lines and
associated facilities designed for, or capable of,
operation at a nominal voltage of 230 kilovolts or
more, between phase conductors for alternating current
or between poles for direct current, except that any
facility subject to licensing pursuant to part I of
the Federal Power Act (41 Stat. 1063, 41 Stat. 1353,
46 Stat. 797, 49 Stat. 838, 62 Stat. 275, 67 Stat.
587, 70 Stat. 226, 74 Stat. 407, 76 Stat. 447,
82 Stat. 616; 16 U.S.C. 792-823) shall not be subject
to the provisions of sections 6, 7, and 8 of this Act;
(d) "Secretary" means the Secretary of the
Interior;
(e) "certifying agency" means the State or
regional agency, authority or other entity authorized
and empowered to carry out the responsibilities pro-
vided for in this Act within the State or States
affected, or the Secretary acting in a similar
capacity in a State or for a Federal electric utility;
(f) "regional" means the governments of two or
more States;
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644 LEGAL COMPILATION—SUPPLEMENT n
(g) "commencement of construction" means any
clearing of the land, excavation, or other substantial
action that would adversely affect the natural environ-
ment of the site or route but does not include changes
desirable for the temporary use of the land for public
recreational uses, necessary borings to determine
foundation conditions or other preconstruction
monitoring to establish background information related
to the suitability of the site or to the protection of
environmental values;
(h) "certificate" means certificate of site and
facility issued pursuant to sections 6 and 7;
(i) "Federal notice" means a notice transmitted
by the Secretary acting as chairman of the Federal
Electric Facilities Siting Panel, to the applicant
and to the certifying agency when all required Federal
authorizations have been received with respect to a
proposed electric facility and site; and-
(j) "State" means any of the fifty States, the
District of Columbia or Puerto Rico.
LONG-RANGE PLANNING
SEC. 4. (a) Each electric utility and Federal
electric utility shall prepare annually its long-
range plans for electric facilities during the
ensuing ten years, or for such other period as the
Federal Power Commission shall specify. These plans
shall be public and shall be completed pursuant to
rules and regulations established by the Federal
Power Commission as a part of the work of the
Commission and of the national and regional electric
reliability councils under section 202(a) of the
Federal Power Act. These plans shall be part of a
coordinated regional plan and shall:
(1) describe the general location, size and type
of all electric facilities to be owned or operated by
each reporting utility, the construction of which is
projected to commence during the ensuing ten years or
during such other period as the Federal Power commission
may specify, together with an identification of all
existing facilities to be removed from utility ser-
vice during such period or upon completion of con-
struction of the projected electric facilities;
(2) identify the location of tentative or alter-
nate siting for the construction of future electric
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GUIDELINES AND REPORTS 645
facilities over such period as the Commission may
specify, including an inventory of electric power
generating sites and the general location of associ-
ated electric transmission line routes and state
the relationship of the identified sites, routes,
and facilities, to environmental values, describing
how potential adverse effects on such values will be
avoided or minimized through the reporting utility's
long-range planning process;
(3) reflect and describe such utility's efforts
to coordinate the electric facility plans identified
therein with those of other utilities so as to provide
a coordinated regional plan for meeting the electric
needs of the region;
(4) describe the reporting utility's actions to
involve environmental protection, air, water and
land-use planning agencies, in its long-range planning
process so as to identify and minimize environmental
problems at the earliest possible stage in the long-
range planning and reporting process; and
(5) supply such additional information as the
appropriate State certifying agency, the Secretary or
the Federal Power Commission may, from time-to-time,
prescribe upon the advice of interested State and
Federal agencies to carry out the purposes of this
Act.
(b) Each electric utility and Federal electric
utility shall give initial public notice of the plans
referred to in subsection (a), by filing through its
regional electric reliability council, or individually
if not a member of a reliability council, annually a
copy of such plans, together with its projections of
demand for electricity that the facilities would meet
with the appropriate State certifying agency, the
Secretary, the Federal Power Commission, the Environ-
mental Protection Agency, and such other affected
Federal, State, regional and local governmental
authorities and citizens' environmental protection
and resource planning groups requesting such plans.
DESIGNATION OF STATE CERTIFYING AGENCIES
SEC. 5. (a) In accordance with regulations of
the Secretary, the several States, within twenty-four
months from the date of enactment hereof, may designate
either an existing or newly created State or regional
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646 LEGAL COMPILATION—SUPPLEMENT n
agency, for the certification of sites and electric
facilities of any electric utility operating within
its jurisdiction. Each State certifying agency shall
provide for participation in its decision-making by
State governmental components having responsibility
for environmental protection, natural resources,
planning and electric power service and may also
provide for participation by the public. Such agency
shall be constituted so as to accommodate and balance
environmental and electric power development consider-
ations in its decision-making pursuant to section 7.
(b) The Governor of each State which designates
such an agency shall notify the Secretary of that fact.
The Secretary shall within one month determine whether
the authorities and procedures for such agency are in
accord with the requirements of this Act, and if so,
he shall issue an order of qualification with respect
to such State, which unless revoked for cause shall
constitute conclusive evidence of its authority to
exercise the provisions of section 6 hereof in
accordance with its terms.
(c) If no State certifying agency has been
qualified in a State within twenty-five months from
the date of enactment hereof (or its order of qualifi-
cation is revoked), the Secretary shall have exclusive
authority to carry out the functions which such State
certifying agency would otherwise carry out with
respect to any electric facility within such State.
The Secretary shall be deemed the State certifying
agency for such State and his authority shall continue
until such State has qualified pursuant to subsection
(b) hereof. Any proceedings for the certification of
sites and electric facilities which are pending before
the Secretary on the date of issuance of any order of
qualification shall continue to be proceedings
subject to the authority of the Secretary and shall
require a Federal certificate before construction
shall commence, except that the Secretary may in his
discretion transfer such proceeding to the appropriatev
State certifying agency.
(d) Any State dissatisfied with the Secretary's
action with respect to an order of qualification may
appeal to the United States Court of Appeals for the
circuit in which such State is located, with service
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GUIDELINES AND REPORTS 647
of summons and notice of appeal at any place within
the United States, and the court shall have jurisdic-
tion to affirm the Secretary's action, to set it aside
in whole or in part, and for good cause shown,, to
remand the case to the agency for further deliberation:
Provided, That the Secretary's findings of fact
supported by substantial evidence shall be conclusive:
And Provided further, That any judgment of the court
shall be subject to review by the Supreme Court of
the United States upon certiorari or certification as
provided in section 1254 of title 28, United States
Code. Upon the filing of an appeal, the Clerk of the
Court of Appeals shall forthwith transmit a copy of
the notice to the Secretary who shall file with the
court the record upon which the appealed action was
entered, as provided in section 2112 of title 28,
United States Code. Upon the filing of the record,
the jurisdiction of the court shall be exclusive.
CERTIFICATION OF SITES AND FACILITIES
SEC. 6. (a) Effective three years from the date
of the enactment hereof:
(i) no electric utility shall commence to con-
struct or begin operation of an electric facility
within a State unless it has received a certificate
issued by the certifying agency and a Federal notice
with respect to such facility; and
(ii) no Federal electric utility shall commence
to construct or begin operation of an electric facility
unless it has received from the Secretary a certificate
and a Federal notice with respect to such, facility.
Such facilities shall be constructed in
accordance with the terms and conditions of the certifi-
cate and Federal notice. No certificate or Federal
notice is required for electric facilities already
in operation on said effective date or for electric
facilities already under construction for which a
sizable investment has been made as determined by the
certifying agency. No certificate or Federal notice
shall be required to begin operation of an electric
facility, if a certificate and Federal notice had
been received with respect to construction of such
facility.
(b) All applications by an electric utility and
a Federal electric utility for a certificate and a
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Federal notice shall be filed with the appropriate
certifying agency not more than five nor less than
three years prior to the planned date of commencement
of construction of the affected electric facility and
such plans may be subject to reasonable modification
during the period of review. Except for good cause
shown, any site for which certification is sought and
the approximate date on which the application for a
certificate will be filed, shall have been specified
in the electric utility's long-range plans and in the
certifying agency's annual compilation not less than
two years prior to the date of application. Any alter-
native to a site so identified, whether proposed by
the certifying agency or by any other person, shall
be so proposed not later than one year before the
utility's specified date of application. Where the
proposed site is so identified in advance, only the
alternative sites so specified by the electric utility
or the Federal electric utility, by the certifying
agency or by other persons shall be considered by
the certifying agency, together with the full range of
alternatives for the electric facilities which the
certifying agency may consider under section 7.
(c) As expeditiously as possible but in no event
later than eighteen months after receipt of the complete
application, the certifying agency shall issue or deny
the certificate and the Secretary shall transmit the
Federal notice or inform the applicant that it will -not
be transmitted because of a denial of one or more
required Federal authorizations. All Federal, State,
interstate or local departments or agencies having
authority relative to issuance of the required certifi-
cate, or the Federal notice or other Federal, State,
interstate or local authorizations shall act within
such eighteen months period.
(d) The provisions of section 5 and subsection
(a)(1) of this section notwithstanding, any electric
utility may petition the Secretary for a certificate
based upon the utility's showing of a failure of a
State certifying agency to act upon a timely or con-
clusive basis with respect to any application, and
that as a result the public interest in an adequate
and reliable regional bulk power supply imperatively
and unavoidably requires a decision with respect to
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GUIDELINES AND REPORTS 649
such certification. The Federal Power Commission shall
prescribe by regulation the facts necessary to consti-
tute the basis of such showing. Such applications
shall be referred to the Federal Power Commission, and
if it makes a finding that failure to act in a timely
or conclusive manner will harm the public interest in
an adequate and reliable bulk power supply, the
Secretary shall, effective upon the date of such
finding, have exclusive jurisdiction to act on the
application for a certificate. The Secretary shall
accord priority to all petitions for certificates
filed under this subsection and shall resolve them in
accordance with the provisions of section 7.
(e) Each certifying agency shall develop with the
Panel a consolidated application form, which shall
include the application form in subsection (f) and
shall be the sole application necessary for all
governmental authorizations, Federal, State, inter-
state or local. The application shall include the
applicant's environmental impact report to aid the
certifying agency in complying with subsection (g) of
this section. The applicant shall file the application
with the certifying agency and with the Federal Elec-
tric Facilities Siting Panel established pursuant to
subsection (f) of this section.
(f) There is hereby established in the Department
of the Interior a Federal Electric Facilities Siting
Panel. The Panel shall include the Secretary of the
Interior, who shall act as chairman, the Attorney
General, the Administrator of the Environmental Protec-
tion Agency, the Chairman of the Federal Power
Commission, or their designees, and representatives
of other Federal agencies the approval of which is
required in order to construct or operate the electric
facility for which a certificate is sought. The
Panel shall include the Chairman of the Atomic Energy
Commission or his designee with respect to applications
for nuclear facilities. The Panel is directed:
(i) to develop a unified Federal application
form which shall be the sole application for all
necessary Federal authorizations;
(ii) to develop with each certifying agency
for use in its jurisdiction a consolidated application
composed of the unified Federal application form and
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650 LEGAL COMPILATION—SUPPLEMENT n
the certifying agency's application form;
(iii) to expedite and coordinate Federal
reviews of applications under subsection (a) of this
section;
(iv) to provide highest priority to elec-
tric facility applications being considered pursuant
to subsection (d) of this section;
(v) to expedite and coordinate Federal
participation in the preparation and review of the
environmental impact statement required under sub-
section (g) of this section; and
(vi) to assemble and transmit to the
Secretary, as chairman of the Panel, a notice of
required authorization or denial thereof by each
Federal entity represented on the Panel.
(g) The certifying agency shall prepare a
detailed statement meeting the requirements of
section 102 of the National Environmental Policy Act
of 1969 and guidelines of the Council on Environmental
Quality.
(h) For a period of forty-eight months from the
date of enactment of this Act, the certifying agency
may waive the requirements of subsections (a), (b),
(e) or (g) of this section upon a showing of good
cause by the electric utility or Federal electric
utility or on its own motion when an application
pursuant to this Act is filed: Provided, however,
That if the requirements of subsection (g) are
waived the requirements of section 102(2)(C) of the
National Environmental Policy Act shall apply to all
Federal agencies. In the event of a natural disaster
at any time the requirements of subsection (b) may be
waived by the certifying agency with respect to trans-
mission lines.
(i) Upon a showing by an electric utility or a
Federal electric utility of changed circumstances
requiring significant modifications in the design
characteristics of a facility for which a certificate
has been issued, the certification proceedings may be
reopened to consider changes necessary in the certifi-
cate to accommodate the proposed modifications. The
appropriate certifying agency shall limit the scope
of issues before it to those directly related to the
proposed modifications. In the event that the
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GUIDELINES AND REPORTS 651
certifying agency modifies any of the provisions of
the certificate, the remaining provisions shall con-
tinue in force*
(j) Notwithstanding the requirements of this
section with regard to the time periods for sub-
mission of application for certification under this
Act in advance of planned commencement of construction,
construction may begin on any electric facility certi-
fied under this Act sixty days after issuance of the
appropriate certificate, subject to such legal require-
ments as may be otherwise determined through the
exercise of judicial review pursuant to section 13.
SEC. 7. (a) The certifying agency is authorized
to issue a certificate of site and facility if such
body finds, after having considered the environmental
and economic costs and benefits of the facility if con-
structed on the site proposed by the utility or any
alternative sites proposed thereto within the limita-
tions of section 6(b); the impact of the use of the
site or such alternative sites on any applicable land-
use program; the availability of fuels; the need for
electric power, including adequacy and reliability of
electric power supplies; and other relevant factors,
that the use of the site or route will not unduly
impair important environmental values and will be
reasonably necessary to meet electric power needs.
If the certifying agency determines not to issue a
certificate for the electric utility's or Federal
electric utility's proposed site it may issue such a
certificate for the construction of a facility on one
of the alternative sites considered. If the certifying
agency chooses to issue a certificate for a site other
than that proposed by the electric utility or Federal
electric utility, it must first find that the utility's
site is unacceptable under the provisions of this
subsection. The judgment of such certifying agency
shall be conclusive on all questions of siting, land
use, public convenience and necessity, aesthetics,
and any other State or local requirements. Compliance
with air and water quality requirements shall be
determined by the duly authorized State, interstate
or Federal air or water pollution control agencies.
In the issuance of such certificates the certifying
agency may impose such reasonable terms and conditions
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652 LEGAL COMPILATION—SUPPLEMENT n
as it deems necessary. The certificate shall show the
applicant's action to meet the objectives of section
202(a) of the Federal Power Act regarding reliability
and adequacy of service. Such certificates, when
issued, shall be final and subject only to judicial
review pursuant to section 13.
(b) The certifying agency shall assure full
public review and adequate consideration of all environ-
mental values, including the impact of adjacent States,
available alternatives, and other relevant factors
bearing on whether the objectives of this Act would
be best served by the issuance of the certificate,
consideration of which has not been reserved to other
agencies by Federal statute or subsection (a).
(c) The certifying agency shall, within sixty
days after it has published notice of receipt for an
application under this section, make a finding as to
whether there is significant public controversy con-
cerning the electric facility. If the certifying
agency finds th^re is significant public controversy
concerning the electric facility, it shall conduct a
public hearing as part of its certification process.
If the certifying agency finds there is no significant
public controversy, it shall continue its certification
process pursuant to subsection (a) but shall not con-
duct a public hearing.
CERTIFYING AGENCY AUTHORITIES
SEC. 8. Each agency is authorized and directed —
(a) to issue such rules and regulations, after
public notice and opportunity for comment, as may be
required to carry out the provisions of the Act. For
purposes of this Act, the Secretary shall have the
authority of an agency (as defined in 5 U.S.C. 551(]J)
which is conferred by the provisions of Subchapter II
of Chapter 5 of Title 5 of the United States Code,
5 U.S.C. 551-559 (the Administrative Procedure Act).
Certificates may be issued by the Secretary pursuant
to the procedures of 5 U.S.C. 553.
(b) to review and comment on the long-range plans
prepared and filed pursuant to section 4 hereof and
make the information contained therein readily avail-
able to the general public and interested governmental
agencies.
(c) to compile and publish each year a descrip-
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GUIDELINES AND REPORTS 653
tion of the proposed electric facility sites within
its jurisdiction as identified in the long-range
plans of the electric utilities and Federal electric
utilities pursuant to section 4 or as proposed by any
other source, identifying the location of such sites
and the approximate year when construction is expected
to commence, and to make such information readily
available to the general public, to each newspaper of
daily or weekly circulation within the area affected
by the proposed site, and to other interested Federal,
State, interstate and local departments or agencies;
and
(d) upon receipt of an application for a certifi-
cate to publish appropriate notice in the affected
area which describes the location and other pertinent
details concerning the electric facilities and which
provides the date of the proposed public hearing
thereon.
EMINENT DOMAIN
SEC. 9. An electric utility holding a certifi-
cate which cannot acquire by contract, or is unable
to agree with the owner (other than the United States
Government), of property as to compensation to be
paid for the necessary rights-of-way or other property
needed for certified electric facilities, may acquire
the same by the exercise of the right of eminent
domain in the district court of the United States for
the district in which such property may be located, or
in the State courts. In any proceeding brought in the
district court of the United States, the petitioner
may file with the petition or at any time before
judgment a declaration of taking in the manner and
with the consequences provided by sections 1, 2, and
4 of the Act of February 26, 1931 (46 Stat. 1421-1422;
40 U.S.C. §§ 258a, 258b and 258d), and the petitioner
shall be subject to all of the provisions of said
section which are applicable to the United States when
it files a declaration of taking hereunder.
CONGRESSIONAL CONSENT TO INTERSTATE AGREEMENTS
SEC. 10. The consent of the congress is hereby
given to two or more States to negotiate and enter
into agreements or compacts not in conflict with any
law of treaty of the United States for cooperative
effort and mutual assistance in certificating electric
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654 LEGAL COMPILATION—SUPPLEMENT n
facilities and related sites, for the enforcement of
their respective laws thereon, and for the establish-
ment of such authorities or agencies, joint or other-
wise, as they may deem desirable for implementing such
agreements or compacts. The right to alter, amend,
or repeal this section is expressly reserved.
FEES
SEC. 11. Each certifying agency and the Secretary
are hereby authorized to assess and collect fees,
including filing fees, in a just and equitable
manner from every electric utility and Federal elec-
tric utility operating within the jurisdiction of the
legal authorities and procedures of said agency, such
assessment and collection to be in an amount not in
excess of the cost of administration of the qualified
agency's program pursuant to this Act (including that
of the Federal Electric Facilities Siting Panel).
STUDIES AND INVESTIGATIONS
SEC. 12. Each State certifying agency and the
Secretary are authorized to conduct the studies or
investigations deemed appropriats to carry out the
purposes of this Act. The Secretary shall develop a
program of studies of new and evolving siting concepts
for electric facilities and shall make the results of
such studies public.
JUDICIAL REVIEW
SEC. 13. Any person who is aggrieved or adversely
affected by any final order of the Secretary or any
State certifying agency or any other Federal, State,
interstate or local department or agency disposing
of an application for a certificate. Federal notice
or other required authorization relative to electric
facilities for which a certificate is sought, by
issuance or denial thereof, may appeal within sixty
days thereafter to the United States Court of Appeals
for the circuit in which there is located the principal
place of business of the applicant electric utility
or Federal electric utility, with service of summons
and notice of appeal at any place within the united
States, and the Court shall have exclusive jurisdic-
tion to affirm the action of the Secretary or state
certifying agency or other Federal, State, interstate
or local department or agency or to set it a§ide in
whole or in part and for good cause shown, to remand
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GUIDELINES AND REPORTS 655
the case for further deliberation: Provided, That
scope of such review shall be limited to setting aside
actbn which the Court finds was arbitrary, capricious
or an abuse of discretion: And Provided further. That
any judgment of the Court shall be subject to review
by the Supreme Court of the United States upon
certiorari or certification as provided in section
1254 of title 28, United States Code. Upon a filing
of an appeal, the clerk of the Court of Appeals shall
forthwith transmit a copy of the notice to the
Secretary, State certifying agency or other Federal,
State, interstate or local department or agency,
which shall file with the Court the record upon which
the appealed action was entered, as provided in
section 2112 of title 28, United States Code. Upon
the filing of the record, the jurisdiction of the
Court shall be exclusive.
OTHER AFFECTED LAWS
SEC. 14. (a) The provisions of this Act shall
in no way alter or otherwise affect the jurisdiction
of the Council on Environmental Quality or the require-
ments of the National Environmental Policy Act of 1969
except that a single detailed statement shall be pre-
pared in connection with each certificate by the
certifying agency and circulated in compliance with
the Guidelines of the Council on Environmental Quality.
Such statement shall fulfill the responsibilities of
all participating Federal agencies under section 102
(2)(C) of that Act with respect to the proposed
facilities.
(b) Except as provided in this Act any present
requirements arising from any Federal law, which may
be applicable to any natural person, artificial person,
or interest of government. Federal or State shall con-
tinue to apply.
PENALTIES
SEC. 15. (a) Whoever —
(1) without first obtaining a certificate com-
mences to construct an electric facility after three
years after the date of enactment of this Act; or
(2) having first obtained a certificate con-
structs, operates or maintains an electric facility
other than in compliance with the certificate; or
(3) causes any of the aforementioned acts to
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occur, shall be liable to a civil penalty of not more
than $10,000 for each violation or for each day of a
continuing violation. The penalty shall be recover-
able in a civil suit brought by the Attorney General
on behalf of the United States in the united States
district court for the district in which the defendant
is located or for the District of Columbia.
(b) Whoever knowingly and willfully violates sub-
section (a) shall be fined not more than $10,000 for
each violation for each day of a continuing violation,
or imprisoned for not more than one year or both.
(c) In addition to any penalty provided in sub-
sections (a) or (b), whenever the Secretary determines
that a person is violating or is about to violate any
of the provisions of this section, he shall refer the
matter to the Attorney General who may bring a civil
action on behalf of the United States in the district
court for the district in which the defendant is
located or for the District of Columbia to enjoin the
violation and to enforce the Act or an order or
certificate issued hereunder, and upon a proper
showing a permanent or preliminary injunction, or
temporary restraining order shall be granted without
bond.
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GUIDELINES AND REPORTS 657
SECTION-BY-SECTION ANALYSIS
SECTION 1 - Short Title - Electric Facilities Siting
Act of 1973.
SECTION 2 — Findings and Purposes - In furtherance of
national environmental policy as set forth in National
Environmental Policy Act of 1969 and of national
electric energy policy as set forth in the Federal
Power Act, Congress determines that the national
public interest in the environment, interstate com-
merce, investors and consumers of electric energy
require—
(a) that electric facilities needed for reliable
power supply be constructed on a timely basis in con-
sonance with environmental and natural resource values;
(b) that utilities should engage in adequate open
long-range planning and bodies should be established
to certify electric facilities prior to construc-
tion;
(c) that appropriate electric facilities and
related sites should be subject to expeditious
coordinated approval at the Federal and State levels.
SECTION 3. Definitions —
(a) "electric utility" is one of two types of
regulated parties. The term applies to all non-Federal
systems which own or operate electric facilities and
includes States, municipals, individuals, corporations,
cooperatives and any other types of organizations;
(b) "Federal electric utility" is the other type
of regulated party and includes all Federal electric
power suppliers, such as the Tennessee Valley Authority
and the Bonneville Power Administration;
(c) "electric facilities" applies to electric
generating equipment of 300 megawatts or more (or
additions thereto of 200 megawatts or more) and trans-
mission lines of 230 kilovolts and higher, together
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658 LEGAL COMPILATION—SUPPLEMENT n
with associated facilities. Hydroelectric facilities,
which are licensed under Part I of the Federal Power
Act, are excluded from the meaning of the term;
(d) "Secretary" — Secretary of the Interior;
(e) "certifying agency" identifies the State or
regional agencies who may certificate sites and facilities
and includes the Secretary when he is acting in a similar
capacity;
(f) "regional" - the governments of two or more
States;
(g) "commencement of construction" - is defined
in terms of site preparation which would adversely
affect the natural environment but excludes temporary
recreational use, preconstruction testing and monitor-
ing to establish site suitability;
(h) "certificate" - is the certificate of site and
facility issued pursuant to sections 6 and 7 which
evidences approval by the certifying agency;
(i) "Federal notice" - a notice issued by the
Secretary evidencing satisfaction of all Federal require-
ments ; and
(j) "State" - any of the fifty states, the District
of Columbia and Puerto Rico.
SECTION 4. Long-range planning — (a) establishes a
statutory requirement that all electric utilities and
Federal electric utilities prepare annually coordinated
regional long-range plans for electric facilities; that
the plans be made available to government and the public;
and that they be part of a regional plan. The section
requires the plans to contain certain' specified informa-
tion and permits the appropriate State certifying
agency, the Secretary or the Federal Power Commission
to require additional information needed to carry out
the Act's purposes.
(b) requires that each electric utility and Federal
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GUIDELINES AND REPORTS 659
electric utility give initial public notice of such plans
by filing annually copies thereof and projections of the
electric demand they are intended to meet, with appropri-
ate government agencies at the Federal, State, regional,
and local levels and with interested citizens groups
requesting them.
SECTION 5. Designation of State Certifying Agencies —
establishes a system for the certification of large
electric facilities prior to their construction;
(a) affords the States an initial period of two
years in which to establish a decision-making agency
at the State or regional level to certify the electric
facilities and related sites of non-Federal utilities.
The agency may be either an existing agency of State
government such as a natural resources agency or the
public utility commission, or a newly created power
plant siting agency. The section requires that the
State certifying agencies provide for the participation
in the decision-making process by environmental pro-
tection, natural resource, planning and electric power
service agencies of the State government. Participation
by the public may also be provided for.
(b) provides for notice to the Secretary by the
governor of each State which designates a certifying
agency, Secretarial review of the agency's authorities
and procedures, and issuance of an order of qualification
if they are in compliance with the Act, which shall
constitute conclusive evidence of the agency's authority
to exercise the provisions of section 6;
(c) authorizes a Secretarial certification procedure
with respect to electric entities in any State which
does not establish and qualify its procedures within
twenty-five months after enactment or which has its
qualification revoked; such Federal certification to
continue in any State until the latter has a qualified
certification procedure; authorizes transitional pro-
cedures which the Secretary may adopt in transferring
pending matters to State certifying agencies;
(d) authorizes judicial review of Secretarial action
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denying an order of qualification or revoking an effective
certificate by a United States Court of Appeals, based on
whether the Secretary's findings are supported by sub-
stantial evidence.
SECTION 6. Certification of Sites and Facilities —
implements the certification requirements for all
electric facilities as follows:
(a)(i) Non-Federal Facilities — prohibits electric
utility from commencing construction or beginning opera-
tion of non-Federal electric facilities 3 years after
enactment unless (a) a certificate of site and facility
is obtained from the qualified State certifying agency
(or lacking such a qualified agency, from the Secretary)
and (b) a Federal notice is received from the Secretary
evidencing receipt of all Federal authorizations;
(ii) Federal Facilities — prohibits the commence-
ment of construction or beginning of operation of
Federal electric facilities 3 years after enactment
unless (a) a certificate of site and facility is
obtained from the Secretary; and (b) a Federal notice
is received from the Secretary.
Certified facilities must be constructed in accordance
with the certificate and Federal notice.
Facilities already operational 3 years after enactment
and those under construction for which a sizable invest-
ment has been made need not be certified. If a certifi-
cate and Federal notice are obtained to construct an
electric facility, no certificate or Federal notice
need be obtained to operate the facility.
(b) requires that applications for a certificate
be filed not more than 5 nor less than 3 years prior
to commencement of construction. A utility is required
to specify in its plans any site for which it intends
to apply for a certificate not less than 2 years prior
to the date on which it will apply. The certifying
agency and other persons have until one year prior to
the utility's specified application date to designate
alternative sites. These requirements can be modified
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GUIDELINES AND REPORTS 661
for good cause. Only the sites designated in accordance
with this procedure will be considered as appropriate
alternative sites when the certifying agency reviews the
application under section 7(a), although the agency may
consider any alternatives with respect to the facilities
to be constructed on the designated sites.
(c) requires all governmental action on an appli-
cation to be complete within eighteen months of filing.
(d) permits any non-Federal electric utility to
petition the Secretary for a certificate if the state
certifying agency fails to act in a timely or conclusive
manner on the application and if the adequacy and reli-
ability of the regional bulk power supply system impera-
tively and unavoidably requires a decision. The Federal
Power Commission is directed to prescribe by regulation
the factual bases upon which to determine whether
circumstances require the Secretary to act, and the
Secretary would act upon a finding by the Commission
that an adequate and reliable regional bulk power supply
would be materially impaired by reason of a State's
failure to act on a timely basis. The Secretary must
accord priority consideration to such situations.
(e) directs each certifying agency to develop with
the Federal Electric Facilities Siting Panel established
by the Act a consolidated application form. The form
will include a Federal section and the consolidated form
will be the sole application necessary for all govern-
mental authorizations. The form must also include an
environmental impact report prepared by the utility to
aid the certifying agency in meeting its responsibility
to prepare an environmental impact statement under
section 102(2)(C) of the National Environmental Policy
Act.
(f) establishes a Federal Electric Facilities
Siting Panel under the chairmanship of the Secretary
and with the Attorney General, the Administrator of
the Environmental Protection Agency, the Chairman of
the Federal Power Commission, the Chairman of the Atomic
Energy Commission (for nuclear facilities), or their
designees, and representatives of other Federal agencies
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662 LEGAL COMPILATION—SUPPLEMENT n
the approval of which is required for the facility, as
members. Functions of the Panel are specified.
(g) requires the certifying agency to prepare an
environmental impact statement meeting the requirements
of section 102 of the National Environmental Policy
Act of 1969 with respect to each application for a
certificate.
(h) permits the certifying agency to waive section
6(a), (b), (e) or (g) requirements for good cause during
the first 48 months after enactment, but if the section
6(g) requirement is waived, the NEPA section 102(2}(C)
requirement continues to apply to all Federal agencies.
(i) permits reopening of certification proceedings
after a certificate is issued to accommodate facility
design modifications, such as those required by a change
in fuel. In the event the proceedings are reopened the
issues are limited to those directly related to proposed
modifications. Permitting such proceedings to be reopened
thus allows the certifying agency to rely on its original
proceedings in reissuing an application without the
necessity for filing a completely new application.
(j) permits construction of facilities to begin
within 60 days after issuance of a certificate for the
facilities, unless judicial review of the certification
proceedings is sought.
SECTION 7. Standards and Procedures for Certificates —
establishes standards and procedures to be used by
certifying agencies when certifying electric facilities.
(a) authorizes certifying agency to issue certifi-
cate if it finds the site or route will not unduly
impair environmental values and will be reasonably
necessary to meet electric power needs. In making
this determination the agency is directed to consider
environmental and economic costs and benefits of the
facility if constructed on any of the sites developed
pursuant to section 6(b); the impact of the use of
such sites on applicable land-use programs, the avail-
ability of fuels, the need for electric power, including
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GUIDELINES AND REPORTS 663
adequacy and reliability of supplies, and other relevant
factors. The certifying agency can issue a certificate
for any of the alternate sites developed in accordance
with section 6(b). It may reject the site for which the
utility seeks a certificate based on its consideration of
all relevant factors, including a determination that one
of the alternate sites developed pursuant to section 6(b)
is preferable.
The section provides that the judgment of the agency is
conclusive on all questions of siting, land use. State,
public convenience and necessity, aesthetics and any
other State or local requirements but that compliance
with air and water quality requirements shall be deter-
mined by the duly authorized State, interstate or Federal
air or water pollution control agencies.
It requires that the certificate shall show the applicant's
action to meet the objectives of section 202(a) of the
Federal Power Act regarding reliability and adequacy of
electric service.
It authorizes the certifying agency to impose terms and
conditions when issuing certificates, and provides that
the certificates are final and subject only to judicial
review.
(b) requires that the certifying agency assure full
public review and give adequate consideration to all
environmental values including the impact on adjacent
States, and other relevant factors.
(c) permits the certifying agency to dispense with
a public hearing when it finds there is no significant
public controversy with respect to a particular site
for which application has been made.
SECTION 8. Certifying Agency Authorities — delineates
the duties and authorities of certifying agencies, which
are directed—
(a) to issue rules and regulations to carry out the
Act, The Secretary is given the authority of an "agency"
under the Administrative Procedure Act, including rule-
making and subpoena power;
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664 LEGAL COMPILATION—SUPPLEMENT n
making and subpoena power;
(b) to review and comment on the long-range plans
submitted by utilities pursuant to section 4 and to make
such information public.
(c) to compile and publish annual descriptions of
proposed electric facility sites, including the approxi-
mate year when construction is expected to begin, making
such information generally available to the public;
(d) to publish upon receipt of an application,
appropriate notice in the affected area of pertinent
details concerning the application, which includes the
date of the proposed public hearing thereon.
SECTION 9. Eminent Domain — authorizes non-Federal
utilities holding certificates to utilize eminent domain
procedures in Federal or State courts to acquire needed
non-Federal property. Where Federal courts are used,
(juick take procedures apply.
SECTION 10. Congressional Consent to Interstate Agree-
ments — gives advance consent of Congress to the
negotiation and implementation of agreements or compacts
to effectuate the certification procedures of the bill
through authorities or agencies, joint or otherwise.
SECTION 11. Fees - authorizes each certifying agency
and the Secretary to assess and collect fees from utilities
operating within its jurisdiction to cover the agency's
costs of administration, necessary studies and personnel.
Such fees would defray expenses of the Federal Electric
Facilities Siting Panel and its member agencies and
could make the certification procedure entirely self-
supporting.
SECTION 12. Studies and Investigations — authorizes
certifying agencies to conduct studies and investigations
appropriate to carry out the Act's purposes and authorizes
the Secretary to develop a coordinated program of studies
of new and evolving siting concepts for electric facilities.
SECTION 13. Judicial Review — subjects the orders and
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GUIDELINES AND REPORTS 665
decisions of the Secretary or any State certifying agency
with respect to an application for a certificate to
judicial review by a United States Court of Appeals
based on the standard of whether action is arbitrary,
capricious, or an abuse of discretion.
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GUIDELINES AND REPORTS 667
Managing the Land
Environmental
Protection Tax Act
Protecting
Coastal Wetlands
Encouraging
Rehabilitation
of Older Buildings
Promoting
Charitable Donations
of Land
for Conservation
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GUIDELINES AND REPORTS 669
OFFICE OF THE SECRETARY OF THE TREASURY
WASHINGTON. D C 20220
February 19, 1973
Dear Mr. [President/Speaker]:
In accordance with the President's Message of
February 15, 1973, with respect to environmental
legislation, I am enclosing a draft bill entitled the
"Environmental Protection Tax Act of 1973," along
with a section-by-section analysis, for consideration
by the Congress.
The proposed legislation is designed to preserve
the nature of our coastal wetland areas by generally
reducing the Federal income tax benefits related to
investments and improvements in those areas. The bill
would additionally encourage greater rehabilitation,
rather than demolition, of older buildings in our urban
areas. The legislation is simply designed to make
restoration of historic structures more appealing to
private investors. Finally, the bill modifies certain
restrictions on the deductibility of charitable gifts
of partial interests in lands to be used for conservation
purposes.
These proposals are described in more detail in the
accompanying materials. It would be appreciated if you
would lay the proposed legislation before the House of
Representatives. A similar communication has been
addressed to the [President of the Senate/Speaker of
the House of Representatives].
We have been advised by the Office of Management and Bud
Budget that there is no objection to the presentation
of this draft bill to the Congress, and that its enact-
ment would be in accord with the program of the President.
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670 LEGAL COMPILATION—SUPPLEMENT n
Sincerely yours.
/s/George P. Shultz
The Honorable
Spiro T. Agnew
President of the Senate
Washington, D.C. 20510
The Honorable
Carl Albert
Speaker of the House
of Representatives
Washington, D.C. 20515
Enclosures
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GUIDELINES AND REPORTS 671
H.R. 5584
A BILL
To amend the Internal Revenue Code of 1954 to
encourage the preservation of coastal wetlands, open
space, and historic buildings and to encourage the
preservation and rehabilitation of all structures, and
for other purposes.
Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled,
TITLE I. SHORT TITLE, ETC.
Sec. 101. SHORT TITLE.
This Act may be cited as the "Environmental Pro-
tection Tax Act of 1973".
Sec. 102. AMENDMENT OF 1954 CODE.
Whenever in this Act an amendment is expressed in
terms of an amendment to a section or other provision,
the reference shall be considered to be made to a
section or other provision of the internal Revenue
Code of 1954.
TITLE II. PRESERVATION OF
COASTAL WETLANDS
Sec. 201. DEPRECIATION OF IMPROVEMENTS ON HISTORIC SITES
AND IN COASTAL WETLANDS.
(a) Section 167 (relating to depreciation) is amended
by redesignating subsection " (n)" as subsection "(p)",
and by inserting after subsection "(m)" the following
new subsection:
"(n) STRAIGHT LINE METHOD IN CERTAIN CASES. —
"(1) IN GENERAL. In the case of any property in
whole or in part constructed, reconstructed, erected,
or used —
"(A) in coastal wetlands (as defined in
section 7701 (a) (35)), or
"(B) on a site which was, on or after
February 15, 1973, occupied by a certified
historic structure (as defined in section 189
(d)(l)) which is demolished or substantially
altered (other than by virtue of a certified
rehabilitation as defined in section 189 (d)(2))
after such date,
subsections (b), (j), (k), and (1) shall not apply,
and the term 'reasonable allowance1 as used in sub-
section (a) shall mean only an allowance computed
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672 LEGAL COMPILATION—SUPPLEMENT n
under the staright line method.
"(2) EXCEPTION. The limitations imposed by
this subsection shall not apply to property which
is not affixed to land or improvements, or to
property which is a certified coastal wetlands
improvement (as defined in section 7701 (a) (36))."
(b) The amendment made by this section shall apply
to property placed in service after December 31, 1973.
Sec. 202. RECAPTURE ON DISPOSITION OF PROPERTY.
Section 1245 (relating to gain from disposition of
certain depreciable property) is amended as follows:
(1) In section 1245 (a) (2) strike out "or"
at the end of subparagraph (C); insert "or" at the
end of subparagraph
(D); and immediately thereafter add a new sub-
paragraph (E) to read as follows:
"(E) with respect to any property referred to
in paragraph (3) (E), its adjusted basis recomputed
by adding thereto all adjustments."
(2) In section 1245 (a) (3), strike out "or" at the
end of subparagraph (C), delete the period and insert",
or" at the end of subparagraph (D), and immediately
thereafter add a new subparagraph (E) to read as follows:
"(E) property placed in service in coastal wet-
lands after December 31, 1973 (other than certified
coastal wetlands improvements)."
Sec. 203. SOIL AND WATER CONSERVATION EXPENDITURES AND
LAND CLEARING EXPENDITURES.
(a) Section 175(c) (1) (relating to soil and water
conservation expenditures) is amended —
(1) by striking out "or" at the end of sub-
paragraph (A); by striking out "section" and
inserting in lieu thereof, "section, or" at the
end of subparagraph (B), and by inserting
immediately after subparagraph (B) a new sub-
paragraph (C) to read as follows:
" (C) any amount paid or incurred with
respect to coastal wetlands (other than amounts
paid or incurred with respect to certified
coastal wetlands improvements)."
(2) by striking out "preceding sentences." in
the flush material immediately following new sub-
paragraph (C) and inserting in lieu thereof, "pre-
ceding sentences, except as provided in subparagraph
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GUIDELINES AND REPORTS 673
(C)."
(b) Section 182 (d)(1) (relating to expenditures by
farmers for clearing land) is amended by striking out
"or" at the end of subparagraph (A), by striking out
"section" and inserting in lieu thereof "section, or"
at the end of subparagraph (B), and by adding a new
subparagraph (C) at the end thereof to read as follows:
"(C) any amount paid or incurred with respect
to coastal wetlands (other than amounts paid or
incurred with respect to certified coastal wet-
lands improvements)."
(c) The amendments made by this section shall apply
to taxable years beginning after December 31, 1973.
Sec. 204. CARRYING CHARGES ON COASTAL WETLANDS PROPERTY.
(a) Part IX of subchapter B of chapter 1 (relating
to items not deductible) is amended by adding after
section 279 the following new section:
"Sec. 280. CARRYING CHARGES ON COASTAL WETLANDS PROPERTY.
"(a) IN GENERAL. Deductions for the taxable year of
amounts otherwise allowable under section 163 or 164,
or under section 162 to the extent such amounts would
also have been allowable under section 163 or 164, which
are attributable to land under development and associated
improvements in the coastal wetlands (other than land
and associated improvements which are certified coastal
wetlands improvements) shall be allowed only to the extent
of net income derived from such coastal wetlands. If for
uny taxable year such deductions exceed such income,
t>e excess shall be charged to capital account.
"(b) NET INCOME FROM COASTAL WETLANDS. For purposes
of this section, 'net income from coastal wetlands' means
gross income for the taxable year derived from land under
development, and associated improvements in the coastal
wetlands (other than land and associated improvements
which are certified coastal wetlands improvements),
reduced by all deductions directly connected with the
production of such income, other than items of deduction
described in section 163 or 164."
(b) The amendment made by this section shall apply to
taxable years beginning after December 31, 1973.
(c) The Table of sections for part IX of subchapter
B of chapter 1 is amended by adding at the end thereof:
'Sec. 280. Carrying charges on coastal wetlands
property."
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674 LEGAL COMPILATION—SUPPLEMENT n
Sec. 205. DEFINITION OF COASTAL WETLANDS.
Section 7701 (a) (relating to definitions) is amended
by adding after paragraph (34) the following new
paragraph:
"(35) COASTAL WETLANDS. The term 'coastal
wetlands' means those areas of open water, marsh,
swamp, or other coastal wetlands which —
"(A) correspond to types 12 through 20
identified in Circular 39 of the Fish and
Wildlife Service, United States Department
of the Interior,
"(B) are of biological significance due
to their production of or capacity to produce
vegetation and other types of living organisms
important to the maintenance of the ecology of
the coastal zone,
"(C) are influenced by tidal water, and
"(D) lie shoreward within the territorial
sea of the three fathom depth line as shown on
National Oceans Survey Marine Charts,
and which are certified to the Secretary or his
delegate as falling within the above definition by
the Secretary of the Interior with the approval of
the Secretary of Commerce."
(b) CERTIFIED COASTAL WETLANDS IMPROVEMENTS.
Section 7701 (a) (relating to definitions) is amended
by adding after paragraph (35) the following new
paragraph:
"(36) CERTIFIED COASTAL WETLANDS IMPROVEMENT.
The term 'certified coastal wetlands improvement'
means any improvement, change, or other alteration
to coastal wetlands which the Secretary of the
Interior, with the approval of the Secretary of
Commerce, has certified to the Secretary or his
delegate —
" (A) as not being in conflict with appli-
cable regulations of Federal and State agencies
relating to the protection of the coastal wet-
lands, and
" (B) as not requiring an environmentally
undesirable degree of draining, dredging or
filling in the coastal wetlands affected."
TITLE III. HISTORIC PRESERVATION
Sec. 301. AMORTIZATION OF REHABILITATION EXPENDITURES.
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GUIDELINES AND REPORTS 675
(a) Part VI of subchapter B of chapter 1 (relating
to itemized deductions) is amended by adding at the end
thereof the following new section:
"Sec. 189. AMORTIZATION OF CERTAIN REHABILITATION
EXPENDITURES FOR CERTIFIED HISTORIC STRUCTURES.
"(a) ALLOWANCE OF DEDUCTION. Every person at his
election, shall be entitled to a deduction with respect
to the amortization of the amortizable basis of any
certified historic structure (as defined in subsection
(d)) based on a period of 60 months. Such amortization
deduction shall be an amount, with respect to each month
of such period within the taxable year, equal to the
amortizable basis at the end of such month divided by
the number of months (including the month for which the
deduction is computed) remaining in the period. Such
amortizable basis at the end of the month shall be
computed without regard to the amortization deduction
for such month. The amortization deduction provided by
this section with respect to any month shall be in lieu
of the depreciation deduction with respect to such basis
for such month provided by section 167. The 60-month
period shall begin, as to any historic structure, at
the election of the taxpayer, with the month following
the month in which the basis is acquired, or with the
succeeding taxable year.
"(b) ELECTION OF AMORTIZATION. The election of the
taxpayer to take the amortization deduction and to begin
the 60-month period with the month following the month
in which the basis is acquired, or with the taxable year
succeeding the taxable year in which such basis is
acquired, shall be made by filing with the Secretary or
his delegate, in such manner, in such form, and within
such time, as the secretary or his delegate nay by
regulations prescribe, a statement of such election.
"(c) TERMINATION OF AMORTIZATION DEDUCTION. A tax-
payer who has elected under subsection (b) to take the
amortization deduction provided in subsection (a) may,
at any time after making such election, discontinue the
amortization deduction with respect to the remainder of
the amortization period, such discontinuance to begin
as of the beginning of any month specified by the tax-
payer in a notice in writing filed with the Secretary
or his delegate before the beginning of such month.
The depreciation deduction provided under section 167
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676 LEGAL COMPILATION—SUPPLEMENT u
shall be allowed, beginning with the first month as
to which the amortization deduction does not apply,
and the taxpayer shall not be entitled to any further
amortization deduction under this section with respect
to such certified hisx.oric structure.
"(d) DEFINITIONS. For purposes of this section —
"(1) CERTIFIED HISTORIC STRUCTURE. The term
'certified historic structure' means a building
or structure subject to the allowance for
depreciation provided in section 167 which —
" (A) is listed in the National Register, or
"(B) is located in a Registered Historic
District and is certified by the Secretary of
the Interior or his delegate as being of
historic significance to the District.
"(2) CERTIFIED REHABILITATION. The term
'certified rehabilitation1 means any rehabilitation
of a certified historic structure or of any other
structure located in a Registered Historic District,
which the Secretary of the Interior or his delegate
has certified as being consistent with the historic
character of such property or district.
"(3) AMORTIZATION BASIS. The term "amortizable
basis' means the portion of the basis attributable to
additions to capital account which —
" (i) are amounts expended for certified
rehabilitation, and
" (ii) are described in section 167 (o)(2).
" (e) DEPRECIATION DEDUCTION. The depreciation
deduction provided by section 167 shall, despite the
provisions of subsection (a), be allowed with respect
to the portion of the adjusted basis which is not the
amortizable basis.
11 (f) LIFE TENANT AND REMAINDERMAN. In the case of
property held by one person for life with remainder to
another person, the deduction under this section shall
be computed as if the life tenant were the absolute
owner of the property and shall be allowable to the
life tenant.
11 (g) CROSS REFERENCE.
11 (1) for rules relating to the listing of
buildings and structures in the National Register
and for definitions of 'National Register' and
1 Registered Historic District,' see section 470
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GUIDELINES AND REPORTS 677
et seq. of title 16 of the United States
Code.
" (2) For special rule with respect to
certain gain derived from the disposition of
property the adjusted basis of which is
determined with regard to this section, see
section 1238."
(b) GAIN ON DISPOSITION OF REGISTERED STRUCTURES.
Section 1238 (relating to amortization in excess of
depreciation) is amended to read as follows:
"Sec. 1238. AMORTIZATION IN EXCESS OF DEPRECIATION.
"Gain from the sale or exchange of property, to the
extent that the adjusted basis of such property is less
than its adjusted basis determined without regard to
section 168 or 189, shall be considered as ordinary
income."
(c) CONFORMING AMENDMENTS.
(1) The table of sections for part VI of sub-
chapter B of Chapter 1 is amended by inserting at
the end thereof the following new item:
"Sec. 189. Amortization of rehabilitation
expenditures on certified historic structures."
(2) The heading and first sentence of section
642(f) (relating to special rules for credits and
deductions of estates and trusts) are amended to read
as follows:
"(f) AMORTIZATION DEDUCTIONS. The benefit of the
deductions for amortization provided by sections 168, 169,
184, 187, 188, and 189 shall be allowed to estates and
trusts in the same manner as in the case of an individual."
(3) Section 1082 (a) (2)(B) (relating to basis
for determining gain or loss) is amended by striking
out "or 188;" and inserting in lieu thereof "188,
or 189;".
(4) Section 1250(b)(3) (relating to depreciation
adjustments) is amended by striking out "or 188)." and
inserting in lieu thereof "188, or 189)."
(d) EFFECTIVE DATE. The amendments made by this
section shall apply with respect to additions to capital
account made after February 15, 1973.
Sec. 302. DEMOLITION.
(a) DISALLOWANCE OF DEDUCTIONS. Part X of sub-
chapter B of chapter 1 (relating to terminal railroad
corporations and their shareholders) is amended by
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678 LEGAL COMPILATION—SUPPLEMENT n
redesignating section 281 as section 291 and part IX
of such subchapter (relating to items not deductible)
is amended by adding after section 280 the following
new section:
"Sec. 281. DEMOLITION OF CERTAIN HISTORIC STRUCTURES.
"(a) GENERAL RULE. In the case of the demolition
of a certified historic structure described in section
189(d)(l) (but witiiout regard to paragraph (C) of that
section ) —
" (1) no deduction otherwise allowable under this
chapter shall be allowed to the owner or lesee of
such structure for —
" (A) any amount expended for such
demolition, or
" (B) any loss sustained on account of
such demolition.
"(2) Amounts described in paragraph (1)
shall be treated as property chargeable to capital
account with respect to the land on which the
demolished structure was located.
11 (b) SPECIAL RULE FOR REGISTERED HISTORIC DISTRICTS.
For purposes of this section, any building or other
structure located in a Registered Historic District
shall be treated as a 'certified historic structure'
unless the Secretary of the Interior of his delegate
has certified, prior to the demolition of such structure,
that such structure is not of historic significance to
the District."
(b) EFFECTIVE DATE. The amendments made by this
section shall apply with respect to demolitions
commencing after the date of enactment of this bill.
(c) CONFORMING AMENDMENTS.
(1) The table of sections for part X of sub-
chapter B of chapter 1 (relating to terminal rail-
road corporations and their shareholders) is
amended by redesignating "Sec. 281" as "Sec. 291".
(2) The table of sections for part IX of sub-
chapter B of chapter 1 (relating to items not deductible)
is amended by adding at the end thereof the following
new item:
"Sec. 281. Demolition of certain historic structures.'
TITLE IV. REHABILITATION
Sec. 401. SUBSTANTIALLY REHABILITATED PROPERTY.
(a) Section 167 (relating to depreciation) is
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GUIDELINES AND REPORTS 679
amended by inserting after subsection (n) the following
new subsection:
"(o) SUBSTANTIALLY REHABILITATED PROPERTY.
"(1) GENERAL RULE. Pursuant to regulations pre-
scribed by the Secretary or his delegate, the tax-
payer may elect to compute the depreciation deduction
attributable to substantially rehabilitated property
as though the original use of such property
commenced with him.
"(2) SUBSTANTIALLY REHABILITATED PROPERTY. The
term 'substantially rehabilitated property' means
property which is of a character subject to the
allowance for depreciation under section 167, and is
property described in section 1250 with respect to
which the additions to capital account during the
24-month period ending on the last day of any
taxable year, reduced by any amounts allowed or
allowable as depreciation or amortization allowable
thereto, exceeds the.greater of—
"(A) the adjusted basis of such property, or
"(B) $5,000.
The adjusted basis of the property shall be determined
as of the beginning of the first day of such 24-month
period, or of the holding period of the property
(within the meaning of section 1250 (c)), whichever
is later."
(b) EFFECTIVE DATE. The amendment made by this
section shall apply with respect to additions to capital
account occurring after June 30, 1974.
TITLE V. CHARITABLE TRANSFERS
FOR CONSERVATION PURPOSES
Sec. 501. TRANSFERS OF PARTIAL INTERESTS IN PROPERTY FOR
CONSERVATION PURPOSES.
(a) INCOME TAX DEDUCTIONS FOR CHARITABLE CONTRIBUTIONS
OF PARTIAL INTERESTS IN PROPERTY FOR CONSERVATION
PURPOSES. Section 170 (f)(3) (relating to charitable
contributions) is amended—
(1) by striking out "or" at the end of sub-
paragraph (B)(i),
(2) by striking out "property,", at the end
of subparagraph (B)(ii) and inserting in lieu
thereof "property,"
(3) by adding after clause (ii) of sub-
paragraph (B) the following new clauses:
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680 LEGAL COMPILATION—SUPPLEMSNT n
" (iii) a lease on, option to
purchase, or easement with respect to
real property of not less than 30 years
duration granted to an organization
described in subsection (b)(1) (A)
exclusively for conservation purposes,
or
"(iv) a remainder interest in real
property which is granted to an organi-
zation described in subsection (b)(1)(A)
exclusively for conservation purposes."
and
(4) by adding at the end thereof the following
new subparagraph:
"(C) CONSERVATION PURPOSES DEFINED. For
purposes of subparagraph (B), the term 'conser-
vation purposes' means—
"(i) the preservation of land areas
for public outdoor recreation or education,
or scenic enjoyment:
" (ii) the preservation of historically
important land areas or structures; or
" (iii) the protection of natural
environmental systems."
(b) ESTATE TAX DEDUCTION FOR TRANSFERS OF PARTIAL
INTERESTS IN PROPERTY FOR CONSERVATION PURPOSES.
Section 2055 (e) (2) (relating to deductions from gross
estate) is amended by striking out "(other than a
remainder interest in a personal residence or farm or
an undivided portion of the decedent's entire interest
in property)" and inserting in lieu thereof "(other than
an interest described in section 170 (f) (3) (B))."
(c) GIFT TAX DEDUCTION FOR TRANSFERS OF PARTIAL
INTERESTS IN PROPERTY FOR CONSERVATION PURPOSES. Section
2522 (c) (2) (relating to deductions from taxable gifts)
is amended by striking out " (other than a remainder
interest in a personal residence or farm or an undivided
portion of the donor's entire interest in property)"
and inserting in lieu thereof "(other than an interest
described in section 170(f) (3)(B))."
(d) EFFECTIVE DATE. The amendments made by this
section shall apply with respect to contributions and
transfers made after February 15, 1973.
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SECTION-BY-SECTION ANALYSIS
ENVIRONMENTAL PROTECTION TAX ACT OP 1973
TITLE I SHORT TITLE, ETC.
Title I labels the Act as the "Environmental
Protection Tax Act of 1973," and specifies that all
amendments contained in the Act are amendments to the
Internal Revenue Code.
TITLE II PRESERVATION OF COASTAL WETLANDS
Section 201
Section 201 adds a new subsection (n) to section
167 of the Code, providing that the depreciation
deduction for property constructed, reconstructed or
erected in the coastal wetlands may be computed only
by use of the straight line method of depreciation.
A similar rule is applied in the case of buildings
constructed on sites where a registered historic
structure has been demolished.
The limitation of depreciation methods will apply
with respect to property placed in service after
December 31, 1973.
Section 202
Section 202 amends section 1245 of the Code to
provide that gain on the disposition of improvements
located in coastal wetlands will be treated as ordinary
income to the extent of all depreciation deductions
claimed with respect to such improvements. This amend-
ment will apply to dispositions of property placed in
service in the coastal wetlands after December 31, 1973.
Section 203
Section 203 of the bill adds a new subparagraph C
to sections 175(c)(l) and 182 (d)(1) of the Code,
providing, in effect, that certain land clearing
expenditures and certain soil and water conservation
expenditues (such as expenses for draining, dredging or
filling) with regard to coastal wetlands are not
deductible under the special rules of Code sections
175 and 182. Thus, these expenses would have to be
capitalized.
Disallowance of deductions for these expenditures
would apply to taxable years beginning after December
31, 1973.
Section 204
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682 LEGAL COMPILATION—SUPPLEMENT n
Section 204 of the bill adds a new section 280 to
the Code, providing in effect that no deduction for
interest and taxes will be allowed where it is attri-
butable to land under development and associated improve-
ments in the coastal wetlands. However, these deduc-
tions would be allowed to the extent of any income
derived from such coastal wetlands. The amount of
such disallowed deductions is to be charged to the
capital account.
This section will apply to taxable years beginning
after December 31, 1973.
Section 205
Section 205 of the bill defines coastal wetlands as
areas of open water, marsh, swamp, etc., corresponding
to types 12 through 20 in circular No. 39 of the Fish
and Wildlife Service of the U.S. Department of Interior,
which are of biological significance, are influenced by
tidal water, and which lie shoreward within the
territorial sea of the three fathom depth line as
shown on National Oceans Survey Marine Charts. It
is further provided that the Secretary of the Interior,
after consultation with the Secretary of Commerce,
will provide the Secretary of Transportation with a
detailed description (in the form of maps) of lands
which fall within this definition.
Section 205 also defines certified wetlands improve-
ments which will be exempt from the provisions of the Act.
Certification requires a finding by the Secretaries of
the Interior and Commerce that the improvement does not
conflict with regula tions and does not require an
environmentally undesirable degree of draining, dredging,
or filling.
TITLE III HISTORIC PRESERVATION
Title III contains provisions intended to encourage
preservation of historic buildings and structures
certified by the Secretary of the Interior as registered
or qualified for registration on the National Registry.
In addition to the provisions of Title III, Section 201
of the Bill limits depreciation to the straight line
method in the case of buildings constructed on sites
which were formerly occupied by demolished historic
structures.
Section 301
Section 301 adds a new section 189 to the Code,
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GUIDELINES AND REPORTS 683
permitting a 5-year write-off of rehabilitation
expenditures incurred with respect to historic
structures which are used in the taxpayer's trade
or business or held for the production of income
provided that property acquired in connection with
such expenditure is otherwise eligible for the
depreciation allowance.
On the disposition of a certified historic
structure, gain would be treated as ordinary income to
the extent that the special write-off provided under
this section exceeded the depreciation deduction
which would have otherwise been allowable (without
regard to this provision). This section would apply
with respect to all expenditures made after
February 15, 1973.
Section 302
Section 302 would add a new section 281 to the
Code (while re-designating the present section 281 as
section 291). Under the new section 281, no deduction
would be allowed for amounts expended in the demolition
of a registered historic structure, or for the undeprec-
iated cost of such a structure. Both items would have to
be allocated to the basis of the land. The section
would apply to all demolitions occurring after the date
of enactment.
TITLE IV. REHABILITATION
Section 401
Section 401 would add a new subsection (o) to the
general depreciation rules of section 167. Under this
new provision, if a taxpayer substantially rehabilitated
depreciable property, he would be permitted to elect to
compute depreciation with respect to his pre-existing
basis in the building as though the entire structure
was first placed in service by him. This will permit a
taxpayer who purchases a used building and rehabilitates
it to utilize so-called accelerated methods of
depreciation, a privilege which is not now accorded
taxpayers under the law.
In order to qualify for this special treatment, the
amounts added to capital account during a 24-month period
must be at least $5,000 in amount and must be greater
than the undepreciated cost of the property, determined
at the beginning of the 24-month period. The provision
is effective with respect to such expenditures incurred
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684 LEGAL COMPILATION—SUPPLEMENT n
after June 30, 1974
TITLE V. CHARITABLE TRANSFERS
FOR CONSERVATION PURPOSES
Title V provides several amendments to the charitable
contribution provisions in section 170 of the Code, the
effect of which is to permit a charitable contribution
deduction for certain types of transfers which are not
presently allowed under the law. Specifically, section
501(a) provides that a charitable deduction will not be
denied on the transfer of a partial interest in property,
where the interest is either an easement of 30 or more
years duration granted exclusively for conservation
purposes, or is a remainder interest in real property
which is granted exclusively for conservation purposes.
"Conservation purposes" mean the preservation of open
land areas for public outdoor recreation or education,
or scenic enjoyment; the preservation of historically
important land areas or structures; or the protection of
natural environmental systems.
These amendments would apply with respect to contri-
butions made after February 15, 1973.
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GUIDELINES AND REPORTS 685
Managing the Land
Management of
Public Lands
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GUIDELINES AND REPORTS 687
THE SECRETARY OF THE INTERIOR
WASHINGTON
February 27, 1973
Dear Mr. [President/Speaker] :
Enclosed is a bill "To provide for the management,
protection, development and sale of the national resource
lands, and for other purposes."
We recommend that this bill, a part of the environ-
mental program announced February 15, 1973, by the
President in his Environment and Natural Resources
State of the Union Message, be referred to the appro-
priate committee and that it be enacted.
With this bill, this Department is proposing legislation
which, for the first time, would state the national
policies and guidelines governing the use and manage-
ment of 450 million acres of national resource lands
administered by the Secretary of the Interior through
the Bureau of Land Management.
The national resource lands are the largest system of
Federal lands, but for many years they were neglected.
From 1812 to 1946 they were under the custodial admin-
istration of the General Land Office in the Department
of the Interior. Its primary responsibility was to
survey the land and convey it to qualified applicants.
In 1934, pursuant to the Taylor Grazing Act, the Grazing
Service was created within the Department. Its
responsibility was to administer a grazing district
management program designed to protect and regulate
the use of the public range lands. The Bureau of Land
Management was created in 1946 primarily through the
consolidation of the functions of these two agencies.
The variety of responsibilities of the Bureau of Land
Management is extraordinary among the Federal resource
management agencies. Briefly, it has responsibility for
the management of 450 million acres of national resource
lands as well as limited management responsibilities on
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688 LEGAL COMPILATION—SUPPLEMENT n
millions of acres of withdrawn lands. It has joint
responsibility with the Geological Survey for the
administration of the mineral laws on the Outer Con-
tinental Shelf and on the over 800 million acres of
public domain, acquired lands and lands in which there
are mineral reservations. In all, it has at least a
part in administering about 60% of the Federal lands.
The Bureau also keeps the basic public land records and
does land boundary surveys for most Federal lands.
Despite these extensive responsibilities. Congress has
never clearly defined the Bureau's mission or the
Bureau's authority to accomplish its mission. Unlike
the National Park Service and the National Forest
Service, the mission and authority of the Bureau of
Land Management must be gleaned from some 3,000 land
laws which have accumulated over some 170 years.
This piecemeal collection of laws is sometimes con-
flicting and is grossly inadequate. The Bureau does not
have essential administrative authority enjoyed by other
Federal agencies such as a working capital fund,
authority to enforce its rules and regulations and
authority to contract with State and local law enforce-
ment agencies for protection of lands under its juris-
diction.
The bill submitted with this letter would provide the
basic mission statement and authority for management,
sale, and the administration of the national resource
lands. The format of the bill is designed in view of
the long-range needs for a legislative base for the
management of the national resource lands, as pointed
out in various analyses, including that of the Public
Land Law Review commission. Each title of the proposal
is designed to permit separate consideration of its pro-
visions and to permit modifications without review of
other titles. It also contemplates addition of new
titles to cover other subject matter. And, it provides
for a separate repealer title which will permit the
accumulation of references to repealed legislation.
This would be significant to preservation of existing
valid rights.
Title I of the proposal, the "National Resource Lands
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GUIDELINES AND REPORTS 689
Management Act", directs the Secretary to manage the
national resource lands under principles of multiple use
and sustained yield and in accordance with comprehensive
land use plans which he must prepare. It provides the
Secretary with guidelines for developing the land use
plans including a requirement that he give priority
to the protection of areas of critical environmental
concern such as flood plains, coastal zones and scenic
or historic areas. Hie Secretary.is also directed to
inventory the national resource lands and use the inven-
tory in developing the land use plans. The inventory
will provide a thorough knowledge of the national resource
lands and purposeful plans for their use will greatly
help us to arrest the destruction too long and too
carelessly inflicted on those lands.
Title II, the "National Resource Lands Sale Act", would
provide modern disposal authority. It would authorize
the Secretary to sell tracts of national resource lands
for fair market value if they are isolated and not
suitable for management by the Bureau of Land Manage-
ment or any other Federal agency, if they were purchased
for a specific purpose and are no longer suitable for
that or any other Federal purpose or if transfer would
serve an overriding public benefit. It would also
authorize the Secretary in certain instances to sell
reserved mineral interests in lands to the surface owners.
Title III, the "National Resource Land Administration
Act," would provide modern land management tools and pro-
cedures designed to facilitate achievement of the goals
and objectives established for the national resource
lands.
Specifically, it would provide the authority to acquire,
by purchase or exchange, lands necessary for authorized
programs or for blocking up existing land holdings. It
would provide authority to issue a document of disclaimer
of interest in land to which the United States no longer
claims an interest.
It would establish a working capital fund for the Bureau
of Land Management and it would afford a more efficient
method of accounting for various programs and service
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690 LEGAL COMPILATION—SUPPLEMENT n
operations of the Bureau of Land Management. But, it
would not affect the present funding of operations on or
the distribution of receipts from the national resource
lands.
It would significantly enhance the management of the
national resource lands by making violation of laws or
regulations pertaining to them a crime and by vesting
enforcement authority in certain designated Departmental
employees. The Secretary would be authorized to
cooperate with State and local law enforcement agencies
and to reimburse the agencies for services on national
resource lands.
Title IV would authorize the Secretary to grant rights-
of-way for such purposes as pipelines, powerlines and
roads. It specifies conditions for granting such rights-
of-way including provisions for protection of the environ-
ment.
Title V of the proposal would repeal a number of obsolete
or superseded laws. These include a hodgepodge of land
disposal laws and a number of laws relating to fees,
charges, and other administrative matters.
The National Resource Lands are a priceless and irre-
placeable national asset. It is time to provide the
Department of the Interior with the tools to manage and
preserve them in accordance with their value to the
American people.
Enclosed is a detailed summary of the bill, including a
discussion of the laws that would be repealed, and a
draft environmental statement prepared pursuant to
section 102(2)(C) of the National Environmental Policy
Act of 1969.
The Office of Management and Budget has advised that
enactment of this proposed legislation would be in
accord with the program of the President.
Sincerely yours.
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GUIDELINES AND REPORTS 691
/s/ John C. Whitaker
Acting Secretary of the Interior
Honorable Spiro T. Agnew
President of the Senate
Washington, D.c. 20510
Honorable Carl Albert
Speaker of the
House of Representatives
Washington, D.C. 20515
Enclosures
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692 LEGAL COMPILATION—SUPPLEMENT n
S. 1041
H.R. 5441
A BILL
To provide for the management, protection, develop-
ment and sale of the national resource lands, and for
other purposes.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled, That this Act may be cited as the National
Resource Lands Management Act of 1973.
SEC. 2. Declaration of Congress. Congress hereby
declares: (a) that the national resource lands are a
vital national asset containing a wide variety of
resource values, (b) that the uses of such lands shall
be balanced in a manner which will, using all practical
means and measures, protect the environmental quality
of such lands for future generations, and (c) that the
national interest will best be served by retaining the
national resource lands in Federal ownership except
where disposal would be consistent with the purposes
and conditions of this Act.
SEC. 3 Definitions. As used in this Act:
(a) "Secretary" means the Secretary of the Interior.
(b) "National Resource Lands" means all lands and
interests in lands (including the renewable and non-
renewable resources thereof) now and hereafter admin-
istered by the Secretary through the Bureau of Land
Management, except the Outer Continental Shelf.
(c) "Multiple use" means: the management of the
national resource lands and their various surface and
subsurface resources so that they are utilized in the
combination that will best meet the present and future
needs of the American people; the most judicious use
of the land for some or all of these resources or
related services over areas large enough to provide
sufficient latitude for periodic adjustments in use
to conform to changing needs and conditions; the use of
some land for less than all of the resources; a com-
bination of resource uses that takes into account the
long term needs of future generations for nonrenewable
resources and the achievement of diversity and balance
for renewable resources; and harmonious and coordinated
management of the various resources, each with the other,
without permanent impairment of the productivity of the
land or undue damage to irreplaceable values, with
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GUIDELINES AND REPORTS 693
consideration being given to the relative values of the
resources, and not necessarily the combination of uses
that will give the greatest economic return or the
greatest unit output.
(d) "Sustained yield" means the achievement and main-
tenance in perpetuity of a high-level annual or regular
periodic output of the various renewable resources of
land without permanent impairment of the productivity of
the land and its environmental values.
(e) "Areas of critical environmental concern" means
those national resource lands as designated by the
Secretary where uncontrolled development could result
in irreversible damage to important historic, cultural,
or esthetic values, or natural systems or processes, or
could unreasonably endanger life and property as a
result of natural hazards. Such areas shall include—
(1) coastal wetlands, marjhes, and other lands
inundated by the tides;
(2) beaches and dunes;
(3) significant estuaries, shorelands, and flood
plains of rivers, lakes, and streams;
(4) areas of unstable soils and high seismic
activity;
(5) rare or valuable ecosystems;
(6) significant agricultural, grazing, and
watershed lands;
(7) forests and related land which require long
stability for continuing renewal;
(8) scenic or historic areas; and
(9) such additional areas as the Secretary deter-
mines to be of critical environmental concern, including
lands having the characteristics described in section
2(c) of the Act of September 3, 1964, 78 Stat. 890.
SEC. 4. Rules and Regulations. The Secretary is
authorized to promulgate such rules and regulations as
he deems necessary to carry out the purposes of this
Act.
SEC. 5. Appropriations. Inhere is hereby authorized
to be appropriated such sums as may be necessary to carry
out the purposes of this Act.
TITLE I
GENERAL MANAGEMENT AUTHORITY
SEC. 101. Management. The Secretary shall manage
the national resource lands in accordance with section 2
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of this Act and with principles of multiple use and
sustained yield in a manner which will assure payment
of fair marlcet value by users of such lands, unless
otherwise provided for by law, and which will provide
maximum opportunities for the public to participate in
decisionmaking concerning such lands. The Secretary
shall manage the national resource lands also in accord-
ance with any applicable land use plans which he has
prepared pursuant to section 103, except to the extent
that other Federal laws require the Secretary to take
specific actions. Management of the national resource
lands shall include the authority to:
(a) Regulate, through permits, licenses, leases
or such other instruments as the Secretary deems
appropriate, the use, occupancy or development of the
national resource lands not provided for by other laws?
(b) Require land reclamation as a condition of use,
and require performance bonds guaranteeing such
reclamation in a timely manner from any person per-
mitted to engage in extractive or other activity likely
to cause significant disturbance to or alteration of the
national resource lands;
(c) Insert in permits, licenses, leases or other
instruments to use, occupy or develop the national
resource lands, provisions authorizing revocation or
suspension upon violation of any regulations issued by
the Secretary under any Act applicable to the national
resource lands or upon violation of any applicable
State or Federal air or water quality standard and
implementation plans; and
(d) Develop regulations for the protection of areas
of critical environmental concern.
SEC. 102. Inventory. The Secretary shall prepare
and maintain on a continuing basis an inventory of all
national resource lands and their resources giving
priority to areas of critical environmental concern.
This inventory shall reflect changes in conditions and
in identifications of resource values. The Secretary,
where he determines it to be appropriate, (a) may pro-
vide means of public identification of national resource
lands, including signs and maps, and (b) may provide
State and local governments with data from the inven-
tory for the purpose of planning and regulating the
uses of non-Federal lands in proximity of the national
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GUIDELINES AND REPORTS 695
resource lands.
SEC. 103. Land Use Plans.
(a) The Secretary shall develop, maintain, and,
when appropriate, revise land use plans for the national
resource lands, coordinated so far as he finds feasible
and proper, or as may be required by law, with the land
use plans of State and local governments and other
Federal agencies.
(b) In the development and maintenance of land use
plans, the Secretary shall:
(1) use a systematic interdisciplinary approach
to achieve integrated consideration of physical,
biological, economic and social sciences;
(2) give priority to the designation and pro-
tection of areas of critical environmental concern;
(3) rely, to the extent it is available, on the
inventory of the national resource lands and their
resource ;
(4) consider present and potential uses of the
lands;
(5) consider the relative scarcity of the values
involved and the availability of alternative means
(including recycling) and sites for realization of those
values;
(6) weigh long-term public benefits against
short-term local and individual benefits; and
(7) consider the requirements of applicable
pollution control laws including State or Federal air
and water quality standards, noise standards and
implementation plans.
SEC. 104. Disposal Criteria
(a) A tract of national resource lands may be trans-
ferred out of Federal ownership under this Act only
where as a result of land use planning required under
section 103, the Secretary determines that:
(1) such tract of national resource lands is
isolated land which is difficult to manage as part of
the national resource lands and is not suitable for
management by another Federal agency; or
(2) such tract of national resource lands was
acquired for a specific purpose and the tract is no
longer required for that or any other Federal purpose;
or
(3) disposal of such tract of national resource
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lands will serve important public objectives which
cannot be achieved prudently or feasibly on land other
than national resource lands and which outweigh other
public objectives and values, including recreation
and scenic values, which would be served by maintain-
ing such tract in Federal ownership.
SEC. 105. Public Hearings. The Secretary, by
regulation, shall establish procedures, including public
hearings where appropriate, to give Federal, State and
local governments and the public adequate notice and
an opportunity to comment upon the formulation of
standards and criteria in the preparation and execution
of plans and programs and in the management of the
national resource lands.
SEC. 106. Advisory Boards and Committees. In
providing for public participation in planning and
programming for the national resource lands, the Secre-
tary may establish under applicable law and consult
such advisory boards and committees as he deems
necessary to secure full information and advice on the
execution of his responsibilities. The membership of
such boards and committees shall be representative of
a cross section of groups interested in management of
the national resource lands and the various types of
use and enjoyment of such lands.
TITLE II
SALE AUTHORITY
SEC. 201. Authority to Sell. The Secretary is
authorized to sell national resource lands under the
terms of this Title and section 104 of this Act.
SEC. 202. Size of Tracts. The Secretary shall
determine and establish the size of tracts to be sold
on the basis of the land use capabilities and develop-
ment requirements of the lands.
SEC. 203. Competitive Bidding Procedures. Except
as to sales under section 206 hereof, sales of national
resource lands under this Act shall be conducted under
competitive bidding procedures to be established by the
Secretary. However, where the Secretary determines it
necessary and proper (a) to assure fair distribution
among purchasers of national resource lands, or (b) to
recognize equitable considerations or public policies,
including but not limited to a preference right to users,
he is authorized to sell national resource lands without
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GUIDELINES AND REPORTS 697
competitive bidding, or with modified competitive bidding.
In no event shall national resource lands be sold under
this Title for less than the appraised fair market value
as determined by the Secretary.
SEC. 204. Right to Refuse or Reject Offer of
Purchase. Until the Secretary has accepted an offer to
purchase, he may refuse to accept any offer or may with-
draw any land or interest in land from sale under this
Act when he determines that consummation of the sale
would not be consistent with this Act or other appli-
cable law.
SEC. 205. Reservation of Mineral Interests. Except
where the Secretary finds that (a) there are no mineral
values in the land or (b) reservation of the mineral
rights in the United States would interfere with or pre-
clude the appropriate development of the land and that
such development is more beneficial use of the land
than mineral development, all conveyances of title
issued by the Secretary under this Title shall reserve
to the United States all mineral deposits in the lands,
together with the right to prospect for, explore for and
remove the mineral deposits under applicable Federal
law and such regulations as the Secretary may prescribe.
SEC. 206. Conveyance of Reserved Mineral Interests.
(a) The Secretary may convey mineral interests owned
by the united states where the surface is in non-Federal
ownership, regardless of which Federal agency may have
administered the surface, if he finds that (1) there
are no mineral values in the land, or (2) that the
reservation of the mineral rights in the United States
is interfering with or precluding appropriate develop-
ment of the land and that such development is a more
beneficial use of the land than mineral development.
(b) Sales of mineral interests owned by the United
States where the surface is in non-Federal ownership
shall be made only to the record owner of the surface,
upon payment of administrative costs and the fair
market value of the interests being conveyed.
(c) Before considering an application for conveyance
of mineral interests pursuant to this section the
Secretary shall require the deposit of a sum of money
which he deems sufficient to cover administrative costs
including, but not limited to, costs of conducting an
exploratory program to determine the character of the
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mineral deposits in the land, evaluating the data
obtained under the exploratory program to determine
the fair market value of the mineral rights to be
conveyed, and preparing and issuing the documents of
conveyance. If the administrative costs exceed the
deposit, the applicant shall pay the outstanding amount;
and if the deposit exceeds the administrative costs, the
applicant shall be given a credit for or refund of
the excess.
(d) Moneys paid to the Secretary for administrative
costs shall be paid to the agency which rendered the
service and deposited to the appropriation then current.
SEC. 207. Terms of Patent. The Secretary shall
insert in any patent or other documents of conveyance
he issues under this Title, such terms, convenants,
conditions and reservations as he deems necessary to
insure proper land use, environmental integrity and
protection of the public interest. In the event any
area which the Secretary has identified as an area of
critical environmental concern is conveyed out of
Federal ownership pursuant to this Title, the patent
or other document of conveyance shall provide for the
continued protection of such area and the features which
prompted the identification.
TITLE III
MANAGEMENT IMPLEMENTING AUTHORITY
SEC. 301. Studies, Cooperative Agreements, and
Contributions.
(a) The Secretary may conduct investigations,
studies, and experiments, on his own initiative or in
cooperation with others, involving the management, pro-
tection, development and sale of the national resource
lands.
(b) The Secretary may enter into contracts or
cooperative agreements, involving the management, pro-
tection, development and sale of the national resource
lands.
(c) The Secretary may accept contributions or
donations of money, services, and property, real,
personal, or mixed, for the management, protection,
development and sale of the national resource lands,
including the acquisition of rights-of-way for such
purposes. He may accept contributions for cadastral
surveying performed on federally controlled or inter-
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GUIDELINES AND REPORTS 699
mingled lands. Moneys received hereunder shall be
credited to a separate account in the Treasury and
are hereby appropriated and made available until
expended, as the Secretary may direct, for payment of
expenses incident to the function toward the adminis-
tration of which the contributions were made and for
refunds to depositors of amounts contributed by them in
specific instances where contributions are in excess
of their share of the cost.
SEC. 302. Service Charges and Excess Payments.
(a) Notwithstanding any other provision of law, the
Secretary may establish reasonable filing fees, service
fees and charges, and commissions with respect to appli-
cations and other documents relating to national
resource lands, and may change and abolish such fees,
charges, and commissions.
(b) In any case where it shall appear to the satis-
faction of the Secretary that any person has made a
payment under any statute relating to the sale, lease,
use, or other disposition of the national resource lands
which is not required or is in excess of the amount
required, by applicable law and the regulations issued
by the Secretary, the Secretary, upon application or
otherwise, may cause a refund to be made from applicable
funds.
SEC. 303. Working Capital Fund.
(a) There is hereby established a national resource
lands management working capital fund. This fund shall
be available without fiscal year limitation for expenses
necessary for furnishing in accordance with the Federal
Property and Administrative Services Act of 1949, 63 Stat.
377, as amended, and regulations promulgated thereunder,
supplies and equipment services in support of Bureau
of Land Management programs, including but not limited
to, the purchase or construction of storage facilities,
equipment yards and related improvements and the purchase,
lease or rent of motor vehicles, aircraft, heavy equip-
ment, and fire control equipment within the limitations
set forth in appropriations made to the Bureau of Land
Management.
(b) The initial capital of the fund shall consist
of appropriations made for that purpose together with
the fair and reasonable value at the fund's inception of
the inventories, equipment, receivables and other assets,
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less the liabilities, transferred to the fund. The
Secretary is authorized to make such subsequent trans-
fers to the fund as he deems appropriate in connection
with the functions to be carried on through the fund.
(c) The fund shall be credited with payments from
appropriations and funds of the Bureau of Land Manage*-
ment, other agencies of the Department of the Interior,
other Federal agencies, and other sources as authorized
by law, at rates approximately equal to the cost of
furnishing the facilities, supplies, equipment, and
services (including depreciation and accrued annual
leave). Such payments may be made in advance in
connection with firm orders, or by way of reimbursement.
(d) There is hereby authorized to be appropriated
not to exceed $3 million as initial capital of the
working capital fund.
SEC. 304. Deposits and Forfeitures.
(a) Any moneys received by the United States as a
result of the forfeiture of a bond or deposit by a timber
purchaser or permittee who does not fulfill the
requirements of his contract or permit or does not
comply with the regulations of the Department, or as a
result of a compromise or settlement of any claim
whether sounding in tort or in contract involving
present or potential damage to timberlands, shall be
credited to a separate account in the Treasury and are
hereby appropriated and made available, until expended
as the Secretary may direct, to cover the cost to the
United States of any forest improvement, protection, or
rehabilitation work, which has been rendered necessary
by the action which has led to the forfeiture, compro-
mise, or settlement.
(b) The Secretary may require a user or users of
roads or trails under the jurisdiction of the Bureau of
Land Management to maintain such roads or trails in a
satisfactory condition commensurate with the particular
use requirements and the use made by each, the extent
of such maintenance to be shared by the users in propor-
tion to such use or, if such maintenance cannot be so
provided, to deposit sufficient money to enable the
Secretary to provide such maintenance. Such deposits
shall be credited to a separate account in the Treasury
and are hereby appropriated and made available until
expended, as the Secretary may direct, to cover the
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GUIDELINES AND REPORTS 701
/
cost to the United States of the maintenance of any road
or trail under the jurisdiction of the Bureau of Land
Management.
(c) Any moneys collected under this Act in connection
with lands administered under the Act of August 28, 1937,
50 Stat. 874, as amended, shall be expended for the
benefit of such land only.
(d) If any portion of a deposit or amount forfeited
under this Act is found by the Secretary to be in excess
of the cost of doing the work authorized under this Act,
the amount in excess shall be transferred to miscellaneous
receipts.
SEC. 305. Contracts for Cadastral Survey Operations
and Fire Protection.
(a) The Secretary is authorized to enter into con-
tracts for the use of aircraft, and for supplies and
services, prior to the passage of an appropriation there-
for for airborne cadastral survey and fire protection
operations of the Bureau of Land Management. He may re-
new such contracts annually, not more than twice, without
additional competition. Such contracts shall obligate
funds for the fiscal years in which the costs are incurred.
(b) Each such contract shall provide that the obli-
gation of the United States for the ensuing fiscal years
is contingent upon the passage of an applicable appro-
priation, and that no payment shall be made under the
contract for the ensuing fiscal years until such appro-
priation becomes available for expenditure.
SEC. 306. Acquisition of Land.
(a) When public interests will be benefited thereby,
the Secretary is authorized to acquire by purchase,
exchange, donation or otherwise, lands or interests
therein including, but not limited to, the right of
access by the general public to national resource lands.
Such acquisitions shall be consistent with applicable
land use plans prepared by the Secretary under section
103 of this Act.
(b) In exercising the exchange authority granted by
subsection (a) of this section, the Secretary may accept
title to any non-Federal land or interests therein and
in exchange therefor he may convey to the grantor of
such land or interests any national resource lands or
interests therein which, under section 104 of this Act,
he finds proper for transfer out of Federal ownership
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702 LEGAL COMPILATION—SUPPLEMENT n
and which are located in the same State as the non-
Federal land to be acquired. The values of the lands
so exchanged either shall be equal, or if they are not
equal, the values shall be equalized by the payment of
money to the grantor or to the Secretary as the circum-
stances require.
(c) Lands acquired by exchange under this section or
section 301 (c) which are within the boundaries of the
National Forest System may be transferred to the Secre-
tary of Agriculture for administration as part of, and
in accordance with laws, rules and regulations appli-
cable to the National Forest System.
(d) Lands and interests in lands acquired pursuant
to this section or section 301(c) shall, upon acceptance
of title, become national resource lands, and for the
administration of public land laws not repealed by this
Act, shall become public lands. If such acquired lands
or interests in lands are located within the exterior
boundaries of a grazing district established pursuant
to section 1 of the Taylor Grazing Act, 48 stat. 1269,
as amended, they shall become a part of that district.
SEC. 307. Authority to Issue and Correct Documents
of Conveyance.
Consistent with his authority to dispose of national
resource lands, the Secretary is authorized to issue
deeds, patents, and other indicia of title, and to
correct such documents where necessary. In addition,
the Secretary is authorized to make corrections on any
documents of conveyance which have heretofore been issued
on lands which would, at the time of their conveyance,
have met the description of national resource lands.
SEC. 308. Recordable Disclaimers of Interest in
Land.
(a) After consulting with any affected Federal
agency, the Secretary is authorized to issue a document
of disclaimer of interest or interests in any lands
in any form suitable for recordation, where the dis-
claimer will help remove a cloud on the title of such
lands and where: (1) a record interest of the United
States in lands has terminated by operation of law; or
(2) the lands lying between the meander line shown on
a plat of survey approved by the Bureau of Land Manage-
ment or its predecessors and the actual shoreline of a
body of water are not lands of the United States; or
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GUIDELINES AND REPORTS 703
(3) accreted, relicted, or avulsed lands are not lands
of the United States.
(b) No document of disclaimer shall be issued pur-
suant to this title until the applicant therefor has paid
to the Secretary the administrative costs of issuing
the disclaimer as determined by the Secretary. All
receipts shall be credited to the appropriation from
which expended.
(c) Issuance of a document of disclaimer by the
Secretary pursuant to the provisions of this Title and
regulations promulgated thereunder, shall have the same
effect as a quitclaim deed from the United States.
SEC. 309. Unauthorized Use. The use, occupany or
development of any portion of the national resource lands,
contrary to any regulation of the Secretary or other
responsible authority, or contrary to any order issued
pursuant to any such regulation is unlawful and pro-
hibited.
SEC. 310. Enforcement Authority.
(a) Any violation of regulations which the Secretary
issues with respect to the management, protection,
development and sale of the national resource lands and
property located thereon and which the Secretary
identifies as being subject to this section shall be
punishable by a fine of not more than $500 or imprison-
ment for not more than six months, or both. Any person
charged with a violation of such regulation may be tried
and sentenced by any United States magistrate designated
for that purpose by the court by which he was appointed,
in the same manner and subject to the same conditions and
limitations as provided for in section 3401 of Title 18
of the United States Code.
(b) At the request of the Secretary, the Attorney
General may institute a civil action in any United states
district court for an injunction or other appropriate
order to prevent any person from utilizing the national
resource lands in violation of regulations issued under
this Act.
(c) The Secretary may designate and authorize any
employee to make arrests on national resource lands
without warrant for any misdemeanor or violation of
any law or regulation committed in his presence or view,
or for any felony if the arresting officer has probable
cause to believe that the person arrested has committed
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704 LEGAL COMPILATION—SUPPLEMENT n
or is committing such felony and a delay in obtaining
a warrant would jeopardize the possibility of his
apprehension. Such authorized employee may execute on
the national resource lands any warrant or other process
issued by a court or officer of competent jurisdiction
for the enforcement of the provisions of any Federal
law or regulation. Such authorized employee, while
engaged in carrying out his official duties, may carry
such firearms as are authorized by the Secretary. Such
employee may also pursue and arrest outside national
resource lands a person fleeing from national resource
lands to avoid an arrest or service of process which
the employee is authorized to make on -national resource
lands.
SEC. 311. Cooperation with State and Local Law
Enforcement Agencies.
In connection with administration and regulation of
the use and occupancy of the national resource lands,
the Secretary is authorized to cooperate with the regu-
latory and law enforcement officials of any State or
political subdivision thereof. Such cooperation may
include reimbursement to a State or its subdivision for
expenditures incurred by it in connection with activities
which assist in the administration and regulation of use
and occupancy of national resource lands.
TITLE IV
AUTHORITY TO GRANT RIGHTS-OF-WAY
SEC. 401. Definitions. As used in this Title:
(a) "Right-of-way" means an easement, lease, permit,
or license to occupy, use or traverse lands.
(b) "Federal lands" means all lands owned by the
United States except (1) lands in the National Park
System, (2) lands in the National Wildlife Refuge System,
(3) lands on the Outer Continental Shelf, (4) lands in
national wilderness preservation system after December
31, 1983, and (5) lands held by the United States in
trust for any Indian or Indian tribe, and lands held or
owned by any Indian or Indian tribe under a limitation
or restriction on alienation requiring the consent of
the United States.
(c) "Holder" means any State or local governmental
entity or agency, individual, partnership, corporation/
association, or other business entity receiving a right-
of-way hereunder.
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GUIDELINES AND REPORTS 705
SEC. 402. Authorization to Grant Rights-of-way for
Oil and Gas Pipelines.
(a) The Secretary may grant, or issue, or renew
rights-of-way over, upon or through all Federal lands
for pipeline purposes for the transportation of oil or
natural gas and storage and terminal facilities in
connection therewith. Such rights-of-way shall extend
to (1) the lands occupied by the pipeline and its
appurtenances, including but not limited to the line of
pipe, valves, pump stations, supporting structures
(including berms), monitoring devices, surge and
storage tanks, and terminals; (2) the lands occupied
by facilities necessary for the operation or maintenance
of the pipeline and its appurtenances; and (3) such
adjacent lands as are necessary to provide for access,
operation, maintenance or public safety.
(b) Where the surface of the Federal lands is
administered by another Federal agency, the consent
of the head of that agency shall first be obtained.
(c) Pipelines and terminals on such rights-of-way
shall be constructed, operated and maintained as common
carriers, and the owners or operators thereof shall
accept, convey, transport, or purchase, without
discrimination, oil or natural gas produced from
Federal lands in the vicinity of the pipeline in such
proportionate amounts as the secretary may, after a
full hearing with due notice thereof to the interested
parties and a proper finding of facts, determine to
be reasonable; however, the common carrier provisions
of this section shall not apply to any natural gas
pipeline operated by any person subject to regulation
under the Natural Gas Act or by any public utility
subject to regulation by a State or municipal regu-
latory agency having jurisdiction to regulate the
rates and charges for the sale of natural gas to
consumers within the State or municipality.
(d) Hereafter, no right-of-way shall be granted,
issued or renewed over, upon or through Federal lands,
as defined herein, for the transportation of oil or
natural gas except under and subject to the provisions,
limitations, and conditions of this section and
sections 404-409 of this Act.
(e) Nothing in this section shall be deemed to
limit in any way the authority of the Secretary to make
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706 LEGAL COMPILATION—SUPPLEMENT n
grants, issue leases, licenses or permits, or enter into
contracts under other provisions of law, for purposes
ancillary or complementary to the construction, operation,
maintenance or termination of such a pipeline.
SEC. 403. Authorization to Grant Rights-of-Way for
Other purposes.
The Secretary may grant, issue, or renew rights-of-
way over, upon, or through the national resource lands
for:
(a) Reservoirs, canals, ditches, flumes, laterals,
pipes, pipelines, tunnels, and other facilities and
systems for the impoundment, storage, transportation, or
distribution of water;
(b) Pipelines and other systems for the transpor-
tation or distribution of liquids and gases, other
than oil, water and natural gas, and for storage and
terminal facilities in connection therewith;
(c) Pipelines, slurry and emulsion systems, and
conveyor belts for transportation and distribution of
solid materials, and facilities for the storage of such
materials in connection therewith;
(d) Systems for generation, manufacture, trans-
mission and distribution of electric power and energy,
except insofar as the Federal Power Commission has
jurisdiction under the Act of June 10, 1920, as
amended, 16 U.S.C. 796,797;
(e) Systems for transmission or reception of radio,
television, telegraph, and other electronic signals,
and other means of communication; and
(f) Roads, trails, highways, railroads, canals,
tramways, airways, livestock driveways, or other means
of transportation.
SEC. 404. General Provisions.
(a) The Secretary shall specify the boundaries of
each right-of-way as precisely as is practical. Each
right-of-way granted, issued or renewed pursuant to
this Title shall extend to the ground occupied by the
facilities which the Secretary determines to constitute
the project or portions of the project for which the
right-of-way is given. The Secretary by lease, license,
or permit may authorize the use of such additional
lands as he determines to be necessary for the con-
struction, operation, maintenance, or termination of
the project or a portion thereof, or for access thereto.
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GUIDELINES AND REPORTS 707
(b) The Secretary shall determine the duration of
each right-of-way or other authorization to be granted,
issued, or renewed pursuant to this Title, and shall
also determine whether the right-of-way shall confer
exclusive or non-exclusive use.
(c) Rights-of-way granted, issued, or renewed pur-
suant to this Title shall be given under such regulations
and subject to such terms and conditions as the Secretary
may prescribe regarding extent, duration, application,
charge, survey, location, construction, operation,
maintenance and termination.
(d) The Secretary, prior to granting, issuing, or
renewing a right-of-way pursuant to this Title which may
have a significant impact on the environment, shall
require the applicant to submit a plan of construction,
operation and rehabilitation which shall comply with
regulations issued by the Secretary designed to insure
that the use of the right-of-way will have the minimum
adverse impact on the environment. The Secretary
shall issue regulations which shall include, but shall
not be limited to: requirements to insure that
activities in connection with the right-of-way will
not violate applicable air and water quality standards;
and requirements to control or prevent (1) damage to
the environment (including damage to fish and wildlife
habitat), (2) damage to public or private property,
and (3) hazards to public health and safety. Such
regulations shall be regularly revised. The issuance
or revision of such regulations shall be applicable
to every right-of-way granted, issued or renewed
pursuant to this title, irrespective of whether that
right-of-way was granted, issued, or renewed prior
to the issuance or revision of such regulations.
(e) Mineral and vegetative materials, including
timber, within or without a right-of-way, may be used
or disposed of in connection with construction or other
purposes only if authorization to remove or use such
materials has been obtained pursuant to applicable
laws.
(f) No right-of-way shall be issued for less than
the fair market value thereof, except that rights-of-way
may be granted, issued or renewed to State or local
governments or agencies or instrumentalities thereof,
or to nonprofit associations or nonprofit corporations,
341
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708 LEGAL COMPILATION—SUPPLEMENT n
for such lesser charge as the Secretary finds equitable
and in the public interest.
(g) The Secretary shall promulgate regulations
specifying the extent to which holders of rights-of-way
under this Title shall be liable to the United States for
damage or injury incurred by the United states in
connection with the right-of-way. The regulations shall
also specify the extent to which such holders shall
indemnify or hold harmless the United States, for
liabilities, damages or claims arising in connection
with the right-of-way.
(h) Where he deems it appropriate, the Secretary may
require a holder of right-of-way to furnish a bond, or
other security, satisfactory to the Secretary, to secure
all or any of the obligations imposed by the terms and
conditions of the right-of-way or by any rule or regu-
lation of the Secretary.
(i) The Secretary shall grant, issue, or renew a
right-of-way under this Title only when he is satisfied
that the applicant has the technical and financial
capability to construct the project for which the right-
of-way is requested.
SEC. 405. Terms and conditions. Each right-of-way
shall contain such terms and conditions as the Secretary
deems necessary to: carry out the purposes of this
Title and rules and regulations hereunder; implement
other Federal statutes and regulations, particularly
any which in any way affect the right-of-way itself or
the project for which the right-of-way is required; pro-
tect the environment; protect Federal property and
monetary interests; manage efficiently Federal lands
or national resource lands which are subject to the
right-of-way or adjacent thereto; protect lives and
property; implement Federal programs and policies; and
protect the public interest.
SEC. 406. Suspension or Termination of Right-of-Way.
(a) The Secretary may suspend or terminate any
right-of-way granted, issued or renewed pursuant to
this Title if, after due notice to the holder of the
right-of-way and an appropriate administrative pro-
ceeding, he determines that such action is appropriate;
however, no administrative proceeding shall be required
where the right-of-way by its terms provides that it
exists at the will of the Secretary.
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GUIDELINES AND REPORTS 709
(b) Abandonment of the right-of-way or noncompliance
with any provision of this Title, condition of the right-
of-way, or applicable rule or regulation of the Secretary,
may be grounds for termination of the right-of-way.
Failure of the holder of the right-of-way to use the
right-of-way for the purpose for which it was granted,
issued, or renewed, for any two-year period, shall be
presumed to constitute abandonment of the right-of-way.
SEC. 407. Rights-of-Way for Federal Agencies.
(a) The Secretary may set aside for the use of any
department or agency of the United States a right-of-
way over, upon or through the national resource lands,
subject to such terms and conditions as he may impose.
The provisions of Sections 404-409 of this Title shall
be applicable to such rights-of-way to the extent the
Secretary deems necessary.
(b) Where a right-of-way has been set aside for the
use of any department or agency of the United states,
other than the Department of the Interior, the Secretary
shall take no action to terminate, or otherwise limit,
that use without the conset of the head of that other
department or agency.
SEC. 408. Conveyance of Lands.
(a) If the Secretary decides to transfer out of
Federal ownership by patent, deed, or otherwise, any
•national resource lands covered in whole or in part by
a right-of-way, the lands may be conveyed subject to
the right-of-wayr however, if the Secretary determines
that the right-of-way is of such a nature that continued
Federal control is necessary in the public interest,
he may (1) reserve to the United States that portion
of the lands which lies within the boundaries of the
right-of-way, or (2) convey the lands, including that
portion with the boundaries of the right-of-way,
subject to the right-of-way and reserving to the United
States the right to enforce all or any of the terms
and conditions of the right-of-way, including the right
to renew it or extend it upon its termination and to
collect rents.
(b) Where the Secretary determines to transfer out
of Federal ownership national resource lands covered in
whole or in part by a right-of-way, he may offer the
holder of the right-of-way a preference right to purchase
that portion of the lands which are within the
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710 LEGAL COMPILATION—SUPPLEMENT 11
boundaries of the right-of-way, if in the judgment of
the Secretary such action is (1) necessary to protect
the holder's rights in the right-of-way and (2) not
contrary to the public interest.
SEC. 409. Existing Rights-of-Way. Nothing in this
Act shall have the effect of terminating any existing
right-of-way authorized pursuant to any statute hereby
repealed. However, with the consent of the holder
thereof, the Secretary may cancel such a right-of-way
and in its stead issue a right-of-way pursuant to this
Act.
TITLE V
PRESERVATION OF VALID EXISTING RIGHTS AND REPEAL
OF OBSOLETE AND SUPERSEDED LAWS
SEC. 501. Preservation of Rights.
(a) Federal rights not curtailed. Nothing in this
Act shall be construed as limiting or restricting the
power and authority of the United States, or as affecting
in any way any law governing appropriation or use of,
or Federal right to, water on national resource lands.
(b) State's rights not curtailed. Nothing in this
Act shall be construed as a limitation upon any State
criminal statute, nor on the police power of the respec-
tive States, nor to derogate the authority of a local
police officer in the performance of his duties, nor
to deprive any State or political subdivision thereof
of any right it may have to exercise civil and criminal
jurisdiction on the national resource lands.
(c) Valid existing rights. All actions by the
Secretary under this Act shall be subject to valid
existing rights.
SEC. 502. Construction of Law. The authority
conferred upon the secretary by this Act is in addition
to all other authority vested in him by law, and
nothing in this Act shall be deemed to repeal any such
other authority by implication. However, the Secre-
tary may exercise the authority granted herein, not-
withstanding any other provision of law.
SEC. 503. Laws Relating to Disposal of National
Resource Lands.
(a) Subject to valid existing rights on the date
of approval of this Act, the following statutes or
parts of statutes are repealed:
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GUIDELINES AND REPORTS
711
Act of
Revised statutes 2289,
2290, 2295, 2291
May 14, 1880
April 6, 1914
March 1, 1921
Oct. 17, 1914
Revised Statutes 2297
Oct. 22, 1914
Revised Statues 2289,
2292
June 8, 1880
Revised Statutes 2301
Revised Statutes 2288
Revised Statutes 2296
May 17, 1900
Jan. 26, 1901
Sept. 5, 1914
Revised Statutes 2300
Revised Statutes 2302
May 14, 1880
Feb. 14, 1920
Feb. 25, 1925
Section
Statute
21:140
38:312
41:1193
38:740
38:766,
ch 335
21:166
31:179
31:740
38:712
21:141
41:434
43:981,
ch.326
43 U.S. Code
161-164
166
167
168
169
170
171
172
173
174
175
179
180
182
183
184
185
186
187
345
-------
712
LEGAL COMPILATION—SUPPLEMENT n
Act Of
June 21, 1934
May 22, 1902
dune s, 1900
March 3, 1875
July 4, 1884
March 1, 1933
Section
3
15
last par.
of sec. 1
only
Statute
48:1185,
ch 690
32:203,
ch 821
31:270
18:420,
ch 131
23:96
47:1418,
ch 160
43 U.S. Code
187a
18 7b
188
189
190
190a
The following words of section 1 only "Provided,
that no further allotments of lands to Indians
on the public domain shall be made in San Juan
County, Utah, nor shall further Indian homestead
be made in said county under the Act of July 4,
1884 (23 Stat. 96: U.S.C., title 43, Sec. 190)."
Revised Statues 2310,
2311
Revised Statues 2302
May 14, 1880
June 13, 1902
March 3, 1879
July 1, 1879
May 6, 1886
21:140
32:384,
ch 1080
20:472,
ch 191
21:46
24:22
191
201
202
203
204
205
206
346
-------
GUIDELINES AND REPORTS 713
Act of Section Statute 43 U.S. Code
August 21, 1916 39:518, 207
ch 361
June 3, 1924 43:357, 208
ch 240
June 24, 1948 62:576 209, 210
Revised Statutes 2298 211
August 30, 1890 26:391 212
The following words of section 1 only: "No
person who shall after the passage of this
act, enter upon any of the public lands with
a view to occupation, entry or settlement
under any of the land laws shall be permitted
to acquire title to more than three hundred
and twenty acres in the aggregate, under all
of said laws, but this limitation shall not
operate to curtail the rights of any person
who has heretofore made entry or settlement
on the public lands, or whose occupation,
entry or settlement is validated by this Act."
April 28, 1904 33:527, 213
ch 1776
Marcn 2, 1889 6 25:854 214
Feb. 20, 1917 39:925 215
March 4, 1921 41:1433, 216
ch 122
June 5, 1900 2 31:269 217
Feb. 19, 1909 35:639 218
June 17, 1910 36:351, 219
ch 298
347
-------
714
LEGAL COMPILATION—SUPPLEMENT n
Act of
March 4, 1915
March 4, 1923
May 14, 1880
April 28, 1904
August 22, 1914
July 3, 1916
Sept. 29, 1919
April 6, 1922
March 2, 1889
July 1, 1879
December 20, 1917
July 24, 1919
next to last par. only
March 2, 1932
May 21, 1934
May 22, 1935
August 19, 1935
April 20, 1936
July 30, 1956
March 1, 1921
Section
1
1
3
Statute
38:1162
42:1445,
21:141
33:547
43 U.S. Code
220
ch 245 222
223
224
38:704, ch 270 231
39:341, ch 214 232
41:228, ch 64 233
2 42:491,
ch 122
3 25:854
1 21:48
40:430,
ch 6
41:271
{
47:59
48:787,
ch 320
49:286
49:659,
ch 560
49:1235,
ch 239
1,2,4 70:715, 716
ch 778
41:1202,
ch 102
234
235
236
237
237a
237b
237c
237d
237e
237f,g,h
238
348
-------
GUIDELINES AND
Act of Section
Revised Statutes 2308
June 16, 1898
April 7, 1930
March 3, 1933
March 3, 1879
March 2, 1889 7
June 3, 1878
Revised Statutes 2294
Revised Statues 2293
March 4, 1913
Last paragraph of section 1
Land Service" only
May 13, 1932
Aug. 27, 1935
Sept. 30, 1890
June 16, 1880
Revised Statues 2304
Revised Statues 2305
Feb. 25, 1919
REPORTS
Statute 43
30:473,
ch 458
46:144,
ch 108
47:1424
20:472,
ch 192
25:855
20:91
37:925
headed "Public
47:153,
ch 178
49:909,
ch 770
26:684
21:287
40:1161,
ch 37
715
U.S. Code
239
240
243
243a
251
252
253
254
255
256
256a
256b
261
263
271
272
272a
349
-------
716 LEGAL COMPILATION—SUPPLEMENT n
Act of section Statute 43 U.S. Code
April 6, 1922 42:491, 273
ch 122
Revised Statutes 2306 274
March 3, 1893 27:593 275
The following words only: "And provided further;
That where soldier's additional homestead entries
have been made or initiated upon certificate of
the Commissioner of the General Land Office
of the rights to make such entry, and there is
no adverse claimant, and such certificate is
found erroneous or invalid for any cause, the
purchaser thereunder, on making proof of such
purchase, may perfect his title by payment of
the Government price for the land; but no person
shall be permitted to acquire more than one
hundred and sixty acres of public land through
the location of any such certificate,,"
August 18, 1894 28:397 276
Last paragraph of section headed "Surveying the
Public Lands" only
Revised Statutes 2309 277
Revised Statues 2307 278
Sept. 27, 1944 58:747, 279-284
ch 421
Dec. 29, 1916 1-8 39:862 291-298
March 4, 1922 2 42:1445, 302
ch 245
August 21, 1916 39:518, 1075
ch 361
August 28, 1937 3 50:875 1181c
350
-------
GUIDELINES AND REPORTS
717
Act of
Section Statute 43 U.S. Code
Desert Land Entries
Mar.
Mar.
Feb.
Dec.
Aug.
Mar.
April
March
Feb.
July
Mar.
Mar.
Sale
28, 1908 2
28, 1908 1
27, 1917
15, 1921
7, 1917
28, 1908
30, 1912
4, 1915 5
25, 1925
30, 1956
4, 1915 5
4, 1929
and Disposal Laws
35:52,
ch 112
35:52,
ch 112
39:946,
ch 134
42:348,
ch 3
40:250
35:52,
ch 112
37:106,
ch 101
38:1161,
ch 147
43:982,
ch 329
70:716,
ch 778
38:116,
ch 147
45:1548,
ch 687
324
326
330
331
332
333
334
335
336
336a-d
337,338
339
Mar. 3, 1891
Revised Statutes 2354
26:1099
671
673
351
-------
718 LEGAL COMPILATION—SUPPLEMENT n
Act of Section Statute 43 U.S. Code
Revised Statutes 2355 674
May 18, 1898 30:418, 675
ch 344
Revised Statutes 2365 676
Revised Statutes 2357 678
June 15, 1880 3,4 21:238 679,680
Mar. 2, 1889 4 25:854 681
Mar. 1, 1907 34:1052, 682
ch 2286
June 1, 1938 52:609, 682a-e
ch 317
Revised Statutes 2361- 688-690
2363
Revised Statutes 2368 691
Revised Statutes 2336 692
Revised Statutes 2369 693
Revised Statutes 2371 695
Revised Statutes 2374 696
Revised Statutes 2372 697
Revised Statutes 2375, 698,699
2376
Mar. 2, 1889 1 25:854 700
Townsite Reservation and Sale
Revised Statutes 2380- 711-715
2384
352
-------
GUIDELINES AND REPORTS
719
Act of Section
Revised Statutes 2386-
2389
Revised Statute 2391-
2394
Mar. 3, 1877 1,3,4
Mar. 3, 1891 16
July 9, 1914
Feb. 9, 1903
Drainage Under State Law
May 20, 1908 1-7
Mar. 3, 1919
May 1, 1958
Jan. 17, 1920
Abandoned Military Reservations
July 5, 1884 5
Mar. 3, 1893
Aug. 23, 1894
Feb. 11, 1903
Feb. 15, 1895
Statute
19:392
26:1101
38:454
38:820,
ch 531
35:169,
ch 181
40:1321,
ch 113
72:99
41:1392,
ch 47
23:104,
ch 214
27:593,
ch 208
28:491,
ch 314
32:822,
ch 543
28:664
43 U.S. Code
717-720
721-724
725-727
728
730
731
1027
1028
1029-1034
1041-1048
1074
1076
1077-1078
1079
1080
353
-------
720
LEGAL COMPILATION—SUPPLEMENT n
Act of
Section
Aug. 23, 1814
Public Lands in Oklahoma
May 2, 1990
Last paragraph of section 18
May 2, 1890 24-27
Mar. 3, 1891 16
Aug. 7, 1946
Statute 43 U.S. Code
33:306 1081
Aug. 3, 1955
Aug. 3, 1955
1-4
6
May 14, 1890
Sept. 1, 1893
May 11, 1896
Jan. 18, 1897 1,2,3,4
Sales of Isolated Tracts
Revised Statute 2455, as amended
April 24, 1928
May 23, 1930
Feb. 4, 1919
May 10, 1920
354
26:89-93
and sections
26:92
26:1026
60:872,
ch 772
69:445,
ch 498
69:446,
ch 498
26:109
28:11
29:116
29:490
45:457,
ch 428
46:377,
ch 313
40:1055
41:595,
ch 178
1091-1094
20-22
1096-1097
1098
1100-1101
1102-1102C
1102e
1111-1117
1118
1119
1131-1134
1171
1171a
117 Ib
1172
1173
-------
GUIDELINES AND REPORTS
721
July 24, 1947
May 14, 1898
May 14, 1898
April 29, 1950
July 8, 1916
Mar. 8, 1922
Mar. 8, 1922
Aug. 17, 1961
July 8, 1916
June 28, 1918
April 13, 1926
Oct. 28, 1921
April 13, 1926
Section Statute
42:159, ch
44:566, ch
46:1105,
ch 170
11 26:1099
44:629
62:35,
ch 72
61:414,
ch 305
1 30:409
10 30:413
2,3,4 64:95
1,2 39:352,
ch 228
2 42:415
3 42:415
43 U.S. Code
62 1175
337 1176
1177
732
733-736
737
738
270
270-4
270-5-
270-7
270-8-
10
270-11
270-13
75:384
39:352
40:633
1 44:243
1 42:208
44:244
270-14
270-15
270-16
270-17
355
-------
722
LEGAL COMPILATION—SUPPLEMENT n
Act of
May 14, 1898
April 29, 1950
Mar. 3, 1891
Aug. 30, 1949
July 19, 1963
Pittman Act Grants
Sept. 22, 1972
Indian Allotments
Feb. 8, 1887
Feb. 28, 1891
Exchanges
June 28, 1934
July 9, 1962
Section
10
5
13
Statute
30:413
64:95
26:1100
63:679
77:80
42:1012
24:389
26:795
43 U.S. Code
687a,687a-2,
687a-3, 687a-5
687a-l
687a-6
687b-687b-4
687b-5
356
25 U.S.C.
334
336
48:1272 315g
76:140 315g-l
(b) Section 7 of the Act of June 28, 1934, as amended
(43 U.S.C. 315f) is revised to read as follows:
'"The Secretary of the Interior is authorized,
in his discretion, to examine and classify any
lands withdrawn or reserved by Executive Order
of November 26, 1934 (numbered 6910), and amend-
ments thereto, and Executive order of February 5,
1935 (numbered 6964), or within a grazing district,
which are more valuable or suitable for any other
use than for the use provided for under this Act,
or proper for acquisition in satisfaction of any
outstanding lieu, exchange or land grant, and
to open such lands to disposal in accordance
with such classification under applicable public-
356
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GUIDELINES AND REPORTS 723
land laws. Such lands shall not be subject to
disposition until after the same have been
classified and opened to disposal."
(c) The Act of March 3, 1877, as amended (19 Stat.
377, 43 U.S.C 321, 322, 323, 325, 327-329) is further
amended in its entirety to read as follows:
"All surplus water over and above water
actually appropriated and used by persons on
entries made under this Act, together with the
water of all lakes, rivers and other sources
of water supply upon the public lands and not
navigable, shall remain and be held free for
the mining, and manufacturing purposes subject
to existing rights."
(d) Section 2 of the Act of March 8, 1922, as amended
(43 U.S.C. 270-12) is further amended to read:
"The coal, oil or gas deposits reserved to
the United States in accordance with the Act
of March 8, 1922, 42 Stat. 416, as added, 75
Stat. 384, as amended, 76 Stat. 740, shall be
subject to disposal by the United States in
accordance with the provisions of the laws appli-
cable to coal, oil or gas deposits or coal, oil
or gas lands in Alaska in force at the time of
such disposal. Any person qualified to acquire
coal, oil, or gas deposits, or the right to mine
or remove the coal or to drill for and remove the oil
or gas under the laws of the United States shall have
the right at all times to enter upon the lands
patented, as provided by the provision hereof for the
the purpose of prospecting for coal, oil or gas there-
in upon the approval by the Secretary of the Interior
of a bond or undertaking to be filed with him
as security for the payment of all damages to
the crops and improvements on such lands by
reason of such prospecting. Any person who
has acquired from the United States the coal,
oil or gas deposits in any such land, or the
right to mine, drill for, or remove the same,
may reenter and occupy so much of the surface
thereof incident to the mining and removal of
the coal, oil, or gas therefrom, and mine and
remove the coal or drill for and remove oil and
gas upon payment of the damages caused thereby
357
-------
724 LEGAL COMPILATION—SUPPLEMENT n
to the owner thereof, or upon giving a good
and sufficient bond or undertaking in an
action instituted in any competent court to
ascertain and fix said damages; Provided,
that the owner under such limited patent
shall have the right to mine the coal for
use on the land for domestic purposes at any
time prior to the disposal by the United States
of the coal deposits; Provided, further, that
nothing in this Act shall be construed as
authorizing the exploration upon or entry
of any coal deposits withdrawn from such
exploration and purchase.
(e) Section 3 of the Act of August 30, 1949
(43 U.S.C. 687b-2) is amended to read:
Notwithstanding the provisions of any Act of
Congress to the contrary, any person who
prospects for, mines or removes any minerals
from any land disposed of under the Act of
August 30, 1949 (63 Stat. 679) shall be
liable for any damage that may be caused to
the value of the land and tangible improve-
ments thereon by such prospecting for, mining,
or removal of minerals. Nothing in this
section shall be construed to impair any
vested right in existence on August 30, 1949.
SEC. 504. Laws Relating to Administration of
National Resource Lands.
Subject to valid existing rights on the date of
approval of this Act, the following statutes or parts of
statutes are repealed:
Act of Section Statute 43 U.S.C.
1. March 2, 1895 1-3 28:744 176
2. June 28, 1934 8 48:1272 315g
June 26, 1936 3 49:1976,
ch 842,
Title I
June 19, 1948 1 62:533,
ch 548
3. August 24, 1937 50:748 315p
358
-------
GUIDELINES AND REPORTS
725
4. Revised Statute 2370
5. March 3, 1969, as 35:845,
amended. The 2nd ch 271
provision only
6. June 21, 1934 48:1185
7. Revised Statutes 2447,
2448
8. June 6, 1874 18:62
' 9. Jan. 28, 1879 20:274,275
10. May 30, 1894 28:84
11. Revised Statutes 2450,
2451, 2456,2457
12. March 3, 1891 7 26:1098,
ch 561
13. Revised Statutes 2471-
2473
14. July 14, 1960
15. Sept. 26, 1970
16. July 31, 1939
except to 74:506
the extent
that it re-
pealed other
statutes
84:885
53:1144,
ch 401
694
772
871a
1151-1152
1153-1154
1155
1156
1161-1164
1165
1191-1193
1361,1362,
1363,1383
1362a
SEC.505. Repeal of Prior Laws Pertaining to Rights-
of-Way
(a) Subject to valid rights existing on the date of
approval of this Act, the following statutes or parts of
statutes are repealed insofar as they apply to national
resource lands:
359
-------
726 LEGAL COMPILATION—SUPPLEMENT n
Act of Section Statute 43 U.S. Code
Revised Statutes 2339 661
The following words only: "and the right of way
for the construction of ditches and canals for
the purposes herein specified is acknowledged
and confirmed; but whenever any person, in
the construction of any ditch or canal, injures
or damages the possession of any settler on the
public domain, the party committing such injury
or damage shall be liable to the party injured
for such injury or damage."
Revised Statutes 2340 661
The following words only: ",or rights to ditches
and reservoirs used in connection with such
water rights,".
Feb. 26, 1897 29:599 664
Mar. 3, 1899 1 30:1233, 665,958
ch 427 (16 U.S.C.525)
The following words only: "that in the form
provided by existing law the Secretary of the
Interior may file and approve surveys and
plats of any right-of-way for a wagon road,
railroad, or other highway over and across
any forest reservation or reservoir site when
in his judgment the public interests will not .
be injuriously affected thereby."
Mar. 3, 1875 1,2,4,5,6 18:482 934,935,937,
938,939
May 14, 1898 2-9 30:409, 942-1-942-9
412,413,
ch 299 as
amended
Feb. 27, 1901 31:815, 943
ch 614
360
-------
GUIDELINES AND REPORTS
727
Act of
June 26, 1906
Mar. 3, 1891
Mar. 1, 1921
May 11, 1898
Jan.13, 1897
Jan. 21, 1895
Feb. 15, 1901
Mar. 4, 1911
May 21, 1896
April 12, 1910
Oct. 23, 1962
Section
18-21
Statute
34:481,
ch 3548
26:1101,
ch 561
as amended
41:1194,
ch 93
30:404,
ch 292
as amended
29:484,
ch 11 as
amended
28:635,
ch 37 as
amended
31:790,
ch 372
36:1253,
ch 238
29:127,
ch 212
36:296,
ch 155
76:1129
43 U.S. Code
944
946-949
950
951
952-955
956-957
959 (16
U.S.C.
79,522)
961 (16
U.S.C. 5,
420, 523)
962-965
966-970
40U.S.C.
319-319C
(b) Nothwithstanding the provisions of subsection (a)
of this section, the following statutes are repealed in
their entirety:
361
-------
728 LEGAL COMPILATION—SUPPLEMENT n
Act of Section Statute 43U.S.Code
Feb. 25, 1920 28 41 Stat. 30 U.S.C.'ISS
449 as
amended
Revised Statutes 2477 43 U.S.C. 932
.362
-------
GUIDELINES AND REPORTS 729
Managing the Land
Legacy of Parks
Conversion of
Federal Properties to Parks
Relocation of
Federal Facilities
Land and Water
Conservation Fund
363
-------
-------
GUIDELINES AND REPORTS 731
CONVERSION OF FEDERAL PROPERTIES
TO PARKS
On February 15, 1973, the President announced the
transfer of an additional 16 parcels of land to State
and local governments for park and recreational use
under the Legacy of parks Program. The program was in-
augurated March 1, 1971, with the first cost-free trans-
fer of $1.1 million worth of Federal property to the
County of Nassau, New York. Since then a total of
46,292 acres of Federal land in the fifty States, the
District of Columbia and Puerto Rico have been turned
over for park use. The total value of this land exceeds
$136 million.
The 16 properties turned over in the latest transfer
are Ipcated in 10 States, totalling 5,020 acres, and have
an estimated market value of $2,716,250. Included are
tracts in California (two properties), Colorado (one
property), Indiana (one property), Kansas (one property),
Michigan (one property), New York (two properties), Ohio
(one property), Rhode Island (one property), Texas (four
properties), and Washington (two properties).
The Property Review Board, established by the Presi-
dent to direct the property conversion program, is also
working with the U.S. Army Corps of Engineers to make
Corps properties available to the public as park and re-
creational facilities through leases to State and local
governments. The military services are considering with
the property Review Board the feasibility of opening park
and recreational areas on military installations for dual
use of these facilities by military personnel and the
public. For example, Fort DeRussy in Hawaii has made its
beach frontage, located on Waikiki Beach, available for
public use, and the presidio in San Francisco has opened
its ocean front area to civilian use for recreation0
365
-------
732 LEGAL COMPILATION—SUPPLEMENT n
LEGACY OF PARKS PROPERTIES
Approximate Estimated
Name and Location Acres Value
Castle Communications Annex 25 $ 65,000
Atwater, California
Nike Site 29 32 $325,000
Brea, California
Portion, Pueblo Army Depot 600 $ 14,000
Pueblo, Colorado
Portion, Dana Housing Area 6 $ 24,000
Dana, Indiana
Portion, Fort Filey 11 $ 4,000
Junction City, Kansas
Grand Haven Rifle Range 80 $ 80,000
Ottawa County
Ferrysburg, Michigan
U.S. Marine Corps Training Center 45 $675,000
Mattydale, New York
Portion, West Point Military 1 $ 24,000
Reservation
Woodbury, New York
Portion, U.S. Coast Guard Station 1 $ 15,000
Ashtabula, Ohio
Portion, Naval Communication 20 $100,000
Station (Fort Burnside)
Newport, Rhode Island
Portion, Fort Bliss 23 $112,000
El Paso, Texas
Portion, Former Perrin Air Force Base 28 $ 23,000
Grayson County, Texas
366
-------
GUIDELINES AND REPORTS 733
Portion, Port Hood 100 $ 80,000
Killeen, Texas
Falcon Dam and Reservoir Project 174 $ 50,000
Starr and Zapata Counties, Texas
Rattlesnake Slope 3,662 $293,250
Richland, Washington
Portion, U.S. Coast Guard Radio
and Light Station 212 $832,000
Westport, Washington
TOTALS — 16 Properties 5,020 $2,716,250
Acres Estimated
Value
CUMULATIVE TOTALS FOR LEGACY OF PARKS*
273 Properties in 50 States, District of
Columbia, Commonwealth of Puerto Rico
46,292 Approximate Acreage
$136,717,176 Estimated Fair Market Value
* On April 9, 1973, the White House announced the
addition of 17 properties, encompassing approximately
3,561 acres, with an estimated market value of $4,286,000.
367
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734 LEGAL COMPILATION—SUPPLEMENT n
UNITED STATES OF AMERICA
GENERAL SERVICES ADMINISTRATION
WASHINGTON, o.c. 20405
February 15, 1973
Dear Mr. [President/Speaker] :
There is transmitted herewith, for referral to the
appropriate Committee, a draft of legislation "To amend
section 204 of the Federal Property and Administrative
Services Act of 1949, as amended, to authorize the use
of proceeds of dispositions of surplus real and related
personal property for the relocation of Federal facili-
ties; and for other purposes." This proposal will
implement one of the recommendations in the President's
Environmental and Natural Resources State of the Union
Message of February 15, 1973.
The purpose of the bill is to provide additional
means for obtaining the goal of optimum utilization of
Federally-owned property, which is a mission of the
General Services Administration (GSA) and the objective
of Executive Order 11508 of February 10, 1970.
Section 204(b) of the Property Act now provides
that proceeds from the disposition of surplus real
and related personal property shall be set aside in a
separate fund in the Treasury. Payments in amounts de-
termined by the Director of the Office of Management
and Budget (OMB) may be made from the fund by the Ad-
ministrator of General Services for direct expenses
incurred in the utilization and disposal of excess and
surplus property.
The draft bill would permit the Administrator of
General Services, and heads of other agencies through
delegation from the Administrator, to obligate amounts
from the above-mentioned fund to pay the cost of re-
locating activities from property which has been de-
termined by the Administrator to be other than optimally
utilized,and, where necessary, the cost of acquiring
new facilities to house the relocated activities. No
such obligations would be made until the fund exceeded
$25,000,000. A determination by the Administrator that
368
-------
GUIDELINES AND REPORTS 735
a particular property was not being put to optimum use
would be subject to concurrence by the head of the
agency concerned. In the absence of such concurrence,
the Administrator could transmit the case to the
President for decision.
Federal property of an executive agency would not
be optimally utilized if (1) it is of such a nature or
value, or is in such a location, that it could be uti-
lized for a different and significantly higher and
better purpose; or (2) the costs of occupying are sub-
stantially higher than would be applicable for other
suitable properties with total net savings to the Govern-
ment after consideration of property values as well as
costs of moving, occupancy, and efficiency of operations.
For example, there are instances which involve
Federal activities now located in or adjacent to metro-
politan areas whose missions, because of security or
operational factors, could be better accomplished if the
activities were relocated in more remote areas. New
Federal land could be acquired in or near a rural com-
munity and developed to accommodate the Federal mission.
If relocation were effected, the property at the
original location would be reported to GSA for disposi-
tion as excess or surplus property. The Government
would have a better, more efficient facility for its
purposes and the original property, because of its loca-
tion in a metropolitan area, would be disposed of at a
comparatively high price to accommodate a higher and
better use. The Government would gain both a monetary
benefit and a better, more efficient operation.
Since there is now no general authority under which
relocation can be funded. Federal agencies may retain
outmoded, poorly suited facilities rather than seek ad-
vance funding on a case-by-case basis to permit reloca-
tion, the acquisition of new facilities, and the
subsequent evacuation and disposal of the old. This is
because their operational requirements must receive
first consideration; and a relocation because present
facilities are not being put to optimum use can be given
only a low priority among the demands on their budget
369
-------
736 LEGAL COMPILATION—SUPPLEMENT IT
resources. The draft bill would provide an opportunity
to fund a desirable relocation from a different source.
Of course, relocation would not necessarily mean
the closure of an installation. An anticipated fre-
quent use of the relocation fund would be to permit
minor consolidations of a Federal activity at a parti-
cular installation which then would free specific
parcels for better use, be it other Federal use, a
public benefit use such as public health, education, or
parkland, or sale.
The draft bill provides that no less than 50 per-
cent of all proceeds from the sale of surplus real and
related personal property shall be available for at
least three years for obligation for the replacement
and relocation requirements of the agencies making pro-
perty available for sale. This provision will provide
the incentive for Federal agencies to report as excess
to their needs properties which are still being used but
come within the outmoded or marginal categories discus-
sed above.
Under current law, before surplus real property is
offered for public sale, it is made available for dona-
tion to State and local governments and institutions for
use for park, health, education, and other specified
public purposes. The draft bill contemplates no change
in this procedure. Thus, although the Government might
spend considerable money in relocating and acquiring re-
placement facilities, the original property would become
available for donation. For such cases, the draft bill
preserves the principle of public benefit discount con-
veyances but provides that, whenever property is report-
ed excess incident to a relocation, the public benefit
discount conveyances will be made at a charge of at
least the lesser of the amount expended from the fund
for relocation and replacement or one-third of the fair
market value of the property.
A number of congressional oversight provisions and
administrative safeguards have been included in the
draft bill to preclude any abuse of the funding authori-
ty. The bill permits the use of funds to cover the cost
370
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GUIDELINES AND REPORTS 737
of acquiring replacement facilities only to the extent
that acquisition of such facilities may be authorized
by law. Unless there is authorizing legislation for
acquisition of the new facilities, the funding of such
an acquisition under this legislation is not possible.
Thus, the Committees of Congress responsible for the
particular Federal program involved, and the Congress as
a whole, must by general or specific legislation have
authorized acquisition of the replacement facilities be-
fore payment of replacement costs may be authorized.
The bill also provides that an explanatory state-
ment relative to any relocation which is to be financed
from the fund shall be transmitted to the Committees on
Appropriations of the Congress 30 days before those
monies may be obligated for that purpose. This pro-
vision assures that the time-honored function of re-
viewing expenditures is retained in the Appropriations
Committees.
The bill requires that a reporting of the financial
actions accomplished in connection with the fund be made
to Congress as well as to OMB on an annual basis. Not
less than once a year, any excess monies in the fund are
required to be transferred to miscellaneous receipts or
as may be otherwise provided by law. Appropriations are
authorized and are to be repaid from proceeds available
to the fund.
This bill will provide an essential and long-needed
step towards proper and effective management of Federal
real property. We urge its prompt introduction and en-
actment .
The Office of Management and Budget has advised that
there is no objection to the submission of this legisla-
tive proposal to the Congress, and that its enactment
would be in accord with the program of the President.
Sincerely,
/s/Arthur F. Sampson
Acting Administrator
371
-------
738 LEGAL COMPILATION—SUPPLEMENT n
Honorable Spiro T. Agnew
president of the Senate
Washington, D.C. 20510
Honorable Carl Albert
Speaker of the House of Representatives
Washington, D.C. 20515
372
-------
GUIDELINES AND REPORTS 739
A BILL
To amend section 204 of the Federal Property and Admini-
strative Services Act of 1949, as amended, to authorize
the use of proceeds of dispositions of surplus real and
related personnel property for the relocation of Federal
facilities, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress
assembled. That sections 204(a) and (b) of the Federal
Property and Administrative Services Act of 1949, as
amended (40 U.S.C. 485), are amended to read as follows:
"(a) All proceeds under this title from any transfer
of excess property to a Federal agency for its use,
or from any sale, lease, or other disposition of
surplus property, shall be covered into the Treasury
as miscellaneous receipts, except as provided in
subsections (b), (c), (d) and (e) of this section, or
as otherwise provided by law.
"(b) All the proceeds of such dispositions of surplus
real and related personal property made by the Ad-
ministrator of General Services shall be set aside in
a separate fund in the Treasury, subject to the fol-
lowing procedures:
(1) Not more than an amount to be determined
quarterly by the Director of the Office of Management
and Budget may be obligated from such fund by the
Administrator to pay the direct expenses incurred for
the utilization of excess property and the disposal
of surplus property under this Act for fees of ap-
praisers, auctioneers, and realty brokers, and for
advertising and surveying. Such payments from this
fund may be used either to pay such expenses directly
or to reimburse the fund or appropriation initially
bearing such expenses. Fees paid to appraisers,
auctioneers, and brokers shall be in accordance with
the scale of fees customarily paid for such services
in similar commercial transactions, and in no event
shall more than 12 percent of the proceeds of all dis-
positions within each fiscal year of surplus real and
373
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740 LEGAL COMPILATION—SUPPLEMENT n
related personal property be paid out of such
proceeds under this authorization to meet direct
expenses incurred in connection with such dispositions.
(2) Not more than an amount to be determined
quarterly by the Director of the Office of Management
and Budget may be obligated from such fund by the
Administrator, and by the heads of other agencies in
accordance with the Administrator's delegation of
authority to them, as he determines necessary to ac-
quire such facilities (as may be authorized by law)
to replace those which have been determined by the
Administrator, with the concurrence of the-:head of
the agency holding such facilities, to be other than
optimally utilized, and to relocate personnel, equip-
ment, and other property to the newly acquired facili-
ties. If the Administrator is unable to obtain the
concurrence of the head of the agency concerned, he
may transmit the case to the President for decision.
No such obligations may be made for relocation and
replacement until the fund has attained an initial
capitalization of $25,000 from the proceeds of dis-
positions of surplus real and related personal pro-
perty.
(3) An explanatory statement of the circumstances
surrounding each such obligation for relocation and
replacement shall be transmitted to the Committees
on Appropriations of the Congress thirty days in ad-
vance of such obligation. Upon occupancy of the re-
placement facilities or at a time agreed between the
Administrator and the head of the agency making
property available for sale, the head of the agency
concerned shall, notwithstanding any other provision
of law, immediately report the replaced facilities
to the Administrator as excess property. Not less
than fifty percent of the proceeds from the disposi-
tion of all categories of surplus real and related
personal property shall be available for at least
three years for obligation from the fund for the re-
location and replacement requirements of the agency
reporting such property as excess.
(4) Notwithstanding the provisions of any law
374
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GUIDELINES AND REPORTS 741
authorizing or requiring surplus real and related
personal property to be made available at less than
fair market value, when property from which facilities
have been relocated or replaced is disposed of pur-
suant to such law, the Government shall receive as
compensation therefor at least the lesser of the
amount expended from the fund for relocation and re-
placement or one-third of the fair market value of the
property.
(5) Appropriations are authorized to be made to
the fund from any monies in the Treasury not otherwise
appropriated in such amounts as may be deemed neces^-
sary. Such appropriations shall be repaid without
interest. The monies not required for repayment pur-
poses shall continue to be available as otherwise pro-
vided by law. Periodically, but not less often than
once each year, any excess funds beyond current opera-
ting needs and beyond those authorized to be obligated
for replacement facilities, and such reserves for
pending or prospective obligations as the Director of
the Office of Management and Budget may establish,
shall be transferred from the fund to miscellaneous
receipts or as may be otherwise provided by law.
(6) The Administrator shall make an annual report
of receipts, disbursements, and transfers under this
subsection to the Director of the Office of Manage-
ment and Budget and to the Congress."
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742 LEGAL COMPILATION—SUPPLEMENT n
THE SECRETARY OF THE INTERIOR
WASHINGTON
Dear Mr. [President/Speaker]:
Enclosed is a draft of a proposed bill "To amend
the Land and Water Conservation Fund Act of 1965, as
amended," to which the President refers in his
Environment and Natural Resources State of the Union
Message, transmitted to you today.
We recommend that this bill be referred to the
appropriate committee for consideration, and we
recommend that it be enacted.
The proposed legislation will accomplish several
reforms in the administration of the Land and Water
Conservation Fund, designed to increase the effective-
ness of the expenditures in providing public recrea-
tion opportunities and open spaces where the unmet
demands are greatest. The formula for apportionment
of assistance among the States would be altered to
give increased emphasis to the demands for additional
recreation opportunities and open spaces in and near
heavily populated urban areas. The Secretary of the
Interior will be given added authority to review State
implementation plans in order to assure compliance
with this goal.
The bill will also authorize a State to use up to
25 percent of its total annual allocation to develop
indoor recreation facilities within areas where the
unavailability of land or climatic conditions provide
no other feasible or prudent alternative to serve
identified unmet demands for recreation resources.
The Office of Management and Budget has advised
that enactment of this proposed legislation would be
in accord with the program of the President.
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GUIDELINES AND REPORTS 743
Sincerely yours.
/s/ Rogers C.B. Morton
Secretary of the Interior
Honorable Spiro T. Agnew
President of the Senate
Washington, D.C. 20510
Honorable Carl Albert
Speaker of the House
of Representatives
Washington, D.C. 20515
Enclosure
377
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744 LEGAL COMPILATION—SUPPLEMENT n
s. 922
H.R. 4865
A BILL
To amend the Land and Water Conservation Fund Act
of 1965, as amended.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled. That the Land and Water Conservation Fund
Act of 1965 (78 Stat. 897), as amended (16 U.S.C.
4603^-4 et. seq.) , is further amended as follows:
(a) In the title of the Land and water Conserva-
tion Fund Act of 1965 and in subsections 1(b), 5 (a),
5 (d), and 5(f), after the word "outdoor" wherever it
appears insert "and other".
(b) In the first sentence of subsection 5(b),
delete paragraphs numbered (1) and (2) and substitute
the following:
" (1) 20 per centum shall be apportioned
equally among the several States;
"(2) 75 per centum shall be apportioned on
the basis of need to individual States by the
Secretary in such amounts as in his judgment will
best accomplish the purposes of this Act. The
determination of need shall include, among other
things, consideration of population density and
urban concentration within individual States as
well as a consideration of the Federal resources
and programs in the particular State; and
" (3) 5 per centum shall be made available to
individual States to meet special or emergency
needs, as determined by the Secretary."
(c) In the third sentence of subsection 5(b),
delete "7" and substitute "10"; at the end of the
fifth sentence of said subsection, change the period
to a comma and add "without regard to the 10 per centum
limitation to an individual State specified in this
subsection." and delete the last sentence of said
subsection.
(d) In subsection 5(d), delete paragraph numbered
(2) and substitute the following:
"(2) an evaluation of the present and future
demand for and supply of outdoor recreation
resources and facilities in the State,-"
(e) In subsection 5(e) delete the paragraph
numbered (2) and substitute the following paragraph:
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GUIDELINES AND REPORTS 745
"(2) DEVELOPMENT — For development of basic
outdoor recreation facilities to serve the general
public, including the development of Federal lands
under lease to States for terms of twenty-five
years or more. Not more than 25 per centum of the
total amount allocated to a State in any one year
may be approved by the Secretary for the develop-
ment of indoor recreation facilities within areas
where the unavailability of land or climatic
conditions provide no other feasible or prudent
alternative to serve identified unmet demands for
recreation resources."
(f) After the third paragraph of subsection 5(f)
of the existing law, insert the following new para-
graph:
"The Secretary shall annually review each
State's program to implement the statewide outdoor
recreation plan and shall withhold payments to any
State until he is satisfied that the State has
taken appropriate action (1) toward ensuring that
new recreation areas and facilities are being
located to satisfy the highest priority unmet
demands for recreation, especially in and near
cities, particularly with respect to the resources
that have been acquired or developed with funds
apportioned to the State under section 5(b)(2) of
this Act; (2) to consider preservation of small
natural areas, especially near cities; (3) to
consider preservation of scenic areas through the
acquisition of development rights, scenic ease-
ments, and other less-than-fee interests in lands
of waters; and (4) to provide for appropriate
multiple use of existing public lands, waters,
and facilities, to help satisfy unmet demands for
recreation resources."
379
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746 LEGAL COMPILATION—SUPPLEMENT n
ANALYSIS OF DRAFT BILL
Subsection (a) would remove the requirement in the
Land and Water Conservation Fund Act that financial
assistance to the States for recreation planning,
acquisition, or development be for outdoor
facilities only.
Subsection (b) would change the existing formula for
apportioning Land and Water Conservation Fund Monies
to the States. At present 60 percent of such monies
is apportioned on the basis of need, as determined
by the Secretary of the Interior in.accordance with
certain prescribed considerations. One such con-
sideration is the proportion which the population
of each State bears to the total population of the
United States.
The proposed apportionment in subsection (b) is based
upon the following formula:
1. 20 percent on an equal basis;
2. 75 percent on the basis of need as deter-
mined by the Secretary; and
3. 5 percent on the basis of special or
emergency needs as determined by the
Secretary.
Subsection (c) would change the present annual
limitation on the total apportionment of Fund monies
to an individual State from 7 to 10 per centum of
the total amount allocated under paragraphs (1) and
(2) to the several States, and would provide that
if such apportionment has not been paid or obligated
within a prescribed period it will be reapportioned
on the basis of need as determined by the Secretary
without regard to the 10 per centum limitation. In
addition, the subsection would delete the provision
under which the populations of the District of
Columbia, Puerto Rico, the Virgin Islands, Guam,
and American Samoa are included in the population
380
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GUIDELINES AND REPORTS 747
computation of the United States since under sub-
section (b) such a computation would no longer be
made.
Subsection (d) modified one of the existing require-
ments of State comprehensive recreation plans which
must be approved by the Secretary before financial
assistance may be given to the States for acquisi-
tion or development projects. The subsection
requires such plans to contain an evaluation of
present and future demands for and supply of outdoor
recreation resources and facilities in the States.
Subsection (e) would permit a State to use up to 25
percent of its total annual allocation to develop
indoor recreation facilities in those areas where
the unavailability of land or climatic conditions
provide no feasible or prudent alternative to serve
identified unmet demands for recreation resources.
Subsection (f) would require that the Secretary with-
hold payments to States until he is satisfied that
they have taken appropriate action to ensure, con-
sider, or provide for certain items listed in said
subsection.
381
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GUIDELINES AND REPORTS 749
Mcmasing the Land
Mining on
Public Lands
383
-------
-------
GUIDELINES AND REPORTS 751
THE SECRETARY OF THE INTERIOR
WASHINGTON
February 27, 1973
Dear Mr. [President/Speaker] :
Enclosed is a draft bill "To reform the mineral leasing
laws, and for other purposes."
We recommend that this bill, a part of the environmental
program announced February 15, 1973, by the President
in his Environment and Natural Resources State of the
Union Message, be referred to the appropriate committee
for consideration and that it be enacted.
The Mining Law of 1872, as amended, and certain other
related and supplemental laws govern the disposition of
much of the mineral wealth on hundreds of millions of
acres of federally owned land. During the almost one
hundred years of its operation, the Mining Law of 1872
has played an important role in the development of this
country. It has contributed to the settlement of large
areas of the West and has provided much of the mineral
base for our industry and technology.
Since 1872, however, the country's needs have changed a
great deal, and as a result changes have been necessary
in the Mining Law of 1872. In 1920 certain minerals,
principally oil and gas, and coal, were taken out from
under the Mining Law of 1872 and placed under a mineral
leasing system. In 1955 Congress decided that certain
other so called "common variety" minerals, principally
sand, gravel and building stone, were more appropriately
disposed of in fixed quantities at fair market value
rather than letting the first person to discover it have
the entire deposit.
385
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752 LEGAL COMPILATION—SUPPLEMENT n
A basic objective of the original Mining Law of 1872
was to encourage the prospecting for and development of
minerals by offering as an incentive the right to a
patent for the minerals discovered and the land they
were discovered in. Where mining conflicted with other
uses of public land the Secretary of the Interior had
two choices; to withdraw the land from mining altogether
or to permit mining locations to continue irrespective
of its effect on other uses or the environment.
The two major revisions mentioned above, the Mineral
Leasing Law of 1920 and the 1955 amendment to the
Materials Act, incorporated two additional objectives
with respect to those minerals to which they applied;
discretionary authority to harmonize mining activity
with the needs of other users and of the environment,
and payment to the Federal Government for the minerals
taken off the public domain.
The proposed Mineral Leasing Act of 1973 would place all
minerals under a leasing system thereby continuing the
historical trend towards discretionary disposal and a
fair return to the public. At the same time it would
to a large extent eliminate the artificial distinctions
which resulted from piece-meal legislation. Hard rock
minerals on public domain would be treated no differently
from the same minerals on acquired lands.
The leasable lands would include all public lands except
the Outer Continental Shelf, Indian lands, the national
parks, wildlife refuges and wildernesses.
All commercial prospecting on Federal lands would be
under a Federal prospecting license which would permit
full environmental protection, which would be continued
under the leasing system.
Leases would be issued by competitive bidding for all
minerals with the exception of those minerals now
covered by the 1872 mining law. For those minerals,
competitive bidding would be required for lands which
the Secretary has reason to believe contain valuable
deposits. Otherwise, the leases would be non-competitive.
386
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GUIDELINES AND REPORTS 753
Pressure to reform the Mining Law of 1872 has been
growing for many years, both within the mining industry
as well as the public at large. Increasing conflicts
between mineral activity and other uses of the land,
concern for abuses of the mining law to obtain vacation
homesites, concern for environmental protection and the
frustration and uncertainty to mineral developers of
a complex system of overlapping and archaic location
requirements, have contributed to this pressure.
We feel that the proposed bill represents a balanced
approach to promoting the exploration and production of
the minerals on which our society depends, coordinating
competing uses of the land, providing a fair return to
the public, and providing the maximum feasible pro-
tection of the environment.
Reform of the mining and mineral leasing laws is long
overdue. We urge that Congress act on this proposal
without delay.
The Office of Management and Budget has advised that
enactment of this proposed bill would be in accord with
the program of the President.
Sincerely yours.
/s/ John C. Whitaker
Acting Secretary of the Interior
Honorable Spiro T. Agnew
President of the Senate
Washington, D. C. 20510
Honorable Carl Albert
Speaker of the House
pf Representatives
Washington, D. C. 20515
387
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754 LEGAL COMPILATION—SUPPLEMENT n
S. 1040
H.R. 5442
A BILL
To reform the mineral leasing laws, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress
assembled. That this Act may be cited as "The Mineral
Leasing Act of 1973."
DECLARATION OF POLICY
SEC. 2. It is hereby declared to be the policy of
Congress —
(a) to foster, promote, and encourage the exploration
for and the production of the mineral deposits in the
leasable lands;
(b) to promote competition and discourage monopolies;
(c) to encourage the active development of the
mineral deposits in the leasable lands in a manner compat-
ible with the use of the same lands for other purposes;
(d) to prevent waste and promote the conservation of
the mineral resources;
(e) to encourage the maximum ultimate recovery of
the mineral deposits;
(f) to assure mineral developers adequate acreage to
justify necessary plant investment, development, and
production;
(g) to require that mineral exploration and production
be conducted in a manner which will prevent or substanti-
ally reduce their adverse environmental effects; and
(h) to insure the public a fair return on the dis-
position of its mineral resources.
DEFINITIONS
SEC. 3. As used in this Act the term —
(a) "Secretary" means the Secretary of the Interior;
(b) "person" means (1) a citizen of the United
States, or (2) a corporation organized under the laws
of the United States or of one of the States, or the
District of Columbia, or (3) an association of such
citizens or corporations or of both, but no corpora-
tion shall be a person if ten per centum or more of the
stock in that corporation is held by citizens of, or
corporations incorporated in, countries the laws, customs,
or regulations of which deny to United States citizens
or corporations equivalent rights and privileges, and
no association shall be a person if ten per centum
or more of the indicia of control in that association is
388
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GUIDELINES AND REPORTS 755
held by citizens of, or corporations incorporated in,
countries the laws, customs, or regulations of which
deny to United States citizens or corporations equivalent
rights and privileges;
(c) "leasable lands" means all lands owned by the
United States, including mineral deposits owned by the
United States in lands the surface of which is in other
ownership, except (1) lands in the national park system
and the national wildlife refuge system except those
which on the date of enactment of this Act are open to
mineral leasing, (2) lands held by the United States for
the use of Indians or Indian tribes, (3) lands in naval
petroleum and oil shale reserves, (4) lands on the
Outer Continental Shelf, and (5) lands in the national
wilderness preservation system except as otherwise pro-
vided in the Wilderness Act;
(d) "hardrock minerals" means any mineral of a kind
which on January 1, 1973, was subject to location under
the Mining Law of 1872 (Revised Statutes 2318-2352), as
amended, and which is not subject to disposition under
title II, III, or IV of this Act;
(e) "licensee" means a person who holds a prospecting
license issued by the Secretary under this Act;
(f) "oil and gas" means all hydrocarbon substances
except coal or oil shale;
(g) "other bedded minerals" means deposits of
potentially valuable minerals occurring in beds and not
in lodes, manto deposits, veins, or porphyry stocks
which the Secretary determines to be more appropriately
subject to disposal under Title III than under any
other title of this Act;
(h) "construction minerals" means (1) all varieties
of sand, stone, gravel, pumice, pumicite, cinders, and
common clay, for whatever purpose they may be used, and
(2) any similar minerals which are used in an unrefined
condition for building, highway, or other construction
and which the Secretary may designate a "construction
mineral" for the purposes of this Act;
(i) "associated or related minerals" means any
minerals, other than the mineral covered by the lease,
which are (1) so intermingled with the deposits of the
mineral for which the lease is issued that separate
development is, in the opinion of the Secretary, not
warranted for mining or for economic reasons, or (2)
389
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756 LEGAL COMPILATION—SUPPLEMENT n
of such poor quality and in such small quantity that
separate development is, in the opinion of the Secretary,.
undesirable for mining or for economic reasons;
(j) "paying quantities" means that quantity of a
mineral which would pay a profit to the lessee, if he
operated the well or mine and marketed the product;
(k) "producing or producible lease" means a lease
covering leasable land on which there are (i) one or
more producing wells or mines, or (ii) a valuable
leasable mineral deposit to which there is an outcrop,
shaft, adit, or slope providing immediate access, or
(iii) shut in wells or operational mines capable of
producing the leased mineral;
(1) "maximum ultimate recovery" means the greatest
quantity of the mineral deposit which can be economically
recovered in accordance with the best mineral conserva-
tion and sound environmental practices;
(m) "diligent mining operations" means drilling,
mining development, and mineral processing which can be
expected of a lessee seriously seeking to develop a
mineral deposit or, except as used in Title V, attempting
to prove existence of minerals in paying quantities in
the leased lands;
(n) "diligent drilling operations" means actual
drilling operations which are conducted in such a way
as to be an effort which one seriously looking for oil
and gas could be expected to make in the particular
area given existing knowledge of geologic and other
pertinent factors.
(o) "underground mining operations" means those
mining operations carried out beneath the surface by
means of shafts, tunnels, or other underground mine
openings and such use of the adjacent surface as is
incidental thereto;
(p) "surface mining operations" means those mining
operations carried out on the surface, including strip,
area strip, contour strip or auger mining, dredging,
and leaching, or any combination thereof, and activities
related thereto;
(q) "open pit mining" means that surface mining
method in which the overburden is removed from atop the
mineral and in which, by virtue of the thickness of the
deposits, mining continues in the same area proceeding
predominantly downward with lateral expansion of the pit
390
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GUIDELINES AND REPORTS 757
necessary to maintain slope stability and necessary to
accommodate the orderly expansion of the total mining
operation. For the purposes of this Act, this defini-
tion shall include caving methods and leaching activities
associated with open pit mining. For the purposes of
this Act, the mining of surface coal deposits, except
those relating to open pit anthracite coal operations,
is excluded from this definition;
(r) "reclamation" means the process of restoring a
mined area affected by a mining operation to its original
or other similarly appropriate condition, considering
past and possible future uses of the area and the
surrounding topography and taking into account
environmental, economic and social conditions; and
(s) "mined area" means the surface and subsurface
of leasable lands in which mining operations are being
or have been conducted, including private ways and
roads appurtenant to any such area, land excavations,
workings, refuse banks, tailing, spoil banks, and areas
in which structures, facilities, equipment, machines,
tools, or other materials or property which result from
or are used in, mining operations are situated.
TITLE I— General Provisions Applicable to All Titles
ISSUANCE OF PROSPECTING LICENSES
SEC. 101. (a)(1) The Secretary shall, under such
regulations as he may prescribe, issue to any person a
prospecting license. No person may conduct mineral
prospecting for commercial purposes for any mineral
on leasable lands without such a prospecting license.
Each prospecting license; shall be for a term of two
years and shall be subject to a reasonable fee. A
separate prospecting license will be required for
prospecting in each State. Each prospecting license
shall contain such reasonable conditions as the Secretary
may require, including conditions for the protection
of the environment, and shall be subject to all appli-
cable Federal, State, and local laws and regulations.
Upon violation of any such conditions or laws the
Secretary may revoke the prospecting license. A
prospecting license shall confer no right to a lease
under this Act.
(2) A licensee may not cause any significant surface
disturbance. He may not remove any mineral for sale
but may remove a reasonable amount of minerals from the
391
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758 LEGAL COMPILATION—SUPPLEMENT n
leasable lands subject to his license for analysis
and study. A licensee must comply with any rules
and regulations of the Federal agency having jurisdiction
over the surface of the leasable lands.
(3) Any person who conducts mineral prospecting
for commercial purposes on leasable lands without a
prospecting license issued hereunder shall be subject
to a fine of not more than $1,000 for each day of
violation.
(b) (1) Where the Secretary determines that leas-
able lands under his jurisdiction should be excluded
from the application of this Act for purposes of pro-
viding for a higher use or for protecting or enhancing
the environmental quality, the Secretary is authorized
to remove such leasable lands from the application of
this -Act, if they are not subject to a lease issued
hereunder.
(2) Where the head of any other Federal agency
determines that leasable lands the surface of which is
under his jurisdiction should be excluded from the
application of this Act for purposes of providing for a
higher use or for protecting or enhancing the environ-
mental quality, he shall so notify the Secretary, who
shall thereupon remove those leasable lands from the
application of this Act, if they are not subject to
a lease issued under this Act.
ISSUANCE OF LEASES
SEC. 102. (a) Except as provided in section 106,
the Secretary is authorized, under such regulations as
he may prescribe, to issue to any person (1) a lease
for the exploration, development, and extraction from
leasable lands of (i) oil and gas under the provisions
of title II of this Act, or (ii) coal (including
leonardite and peat), oil shale, borates, carbonates,
halides, nitrates, phosphates, silicates, and sulfates
of calicium, magnesium, sodium, and potassium, elemental
sulfur, or other bedded minerals under the provisions of
title III of this Act; or (2) an exploration lease on
leasable lands for hardrock minerals under the provisions
of title V of this Act.
(b) The head of any Federal agency is authorized,
under such regulations as he may prescribe, to sell,
or to issue leases for the exploration, development,
and extraction of, construction minerals on leasable
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GUIDELINES AND REPORTS 759
lands the surface of which is under his jurisdiction to
any person under the provisions of title IV of this Act.
(c) The United States reserves ownership of and
the right to extract helium from all gas produced from
leasable lands leased for oil and gas purposes.
LEASE RENTALS
SEC. 103. All leases shall be conditioned upon pay-
ment each year of an annual rental in advance. Rentals
paid for any one year shall be credited against royalties
accruing for that year.
INCORPORATED AREAS
SEC. 104. The provisions of this Act shall not apply
to leasable lands within incorporated cities, towns, and
villages, except where (1) with respect to licenses
under title I and leases under title II, there has been
consultation with the local government, and (2) with
respect to leases and sales under titles III, IV, and
V, there has been consent by the local government.
COMPETITIVE BIDDING
SEC. 105. (a) If the Secretary or any other head
of a Federal agency shall determine to issue a lease
or contract under section 102, he shall, except as
provided in sections 105(b), 402, and 403, issue that
lease or contract through competitive bidding after
formal advertising and such other public notice as the
Secretary or other head of a Federal agency may pre-
scribe. The Secretary shall reserve the right to reject
all bids whenever in his judgment the best interest of
the United States will be served by so doing.
(b) If the Secretary shall determine to issue an
exploration lease for minerals subject to title V, he
shall issue that lease without competitive bidding only
to the first qualified applicant under such rules and
regulations as the Secretary may prescribe, except that
the Secretary shall issue, only by competitive bidding
under section 105(a), an exploration lease for any lands
as to which he determines there is geological, geo-
physical or geochemical evidence of the existence of
such minerals in paying quantities. Where two or more
persons file applications for lease on the same day
covering the same lands under title V, they shall be
deemed to have filed their applications simultaneously.
In such case the Secretary shall require that the lease
be issued to the highest qualified bidder among those
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760 LEGAL COMPILATION—SUPPLEMENT n
persons as determined by competitive bidding.
(c) Leases and contracts may be offered for
competitive bidding on the initiative of the Secretary
or on his approval of an application therefor.
CONSENT OF OTHER FEDERAL AGENCIES
SEC. 106. Leases covering leasable lands the sur-
face of which is under the jurisdiction of any Federal
agency other than the Department of the Interior may be
issued only upon consent of that other Federal agency
and upon such conditions as it may prescribe with
respect to the use and protection of the nonmineral
interest in those leasable lands.
MULTIPLE LEASES
SEC. 107. The issuance of a lease for a particular
mineral shall not preclude the issuance of leases cover-
ing other minerals in the same leasable lands, where
the Secretary considers that they are separately mine-
able or extractable and that operations with respect
to such minerals will not unreasonably interfere with
the lessee who has prior rights.
ASSOCIATED OR RELATED MINERAL DEPOSITS
SEC. 108. Where leasable lands contain, in addition
to a deposit of a mineral for which a lease has been
issued, associated or related minerals, the Secretary
jaay allow or, where economically feasible in his judg-
ment, require the lessee to extract and dispose of such
associated or related minerals if they are not subject
to a lease issued to a different lessee upon payment of
such royalty as the Secretary may prescribe for each
type of associated or related mineral.
ENVIRONMENTAL PROTECTION AND CONSERVATION
SEC. 109. (a) Prior to taking any action on leasable
lands pursuant to this Act which might cause a signifi-
cant disturbance of the environment, the lessee shall
have obtained the Secretary's approval of an operation
and reclamation plan describing the manner in which
his activity will be conducted and showing that such
activity will be conducted in a manner consistent with
environmental regulations issued by the Secretary. As
promptly as possible after the lessee submits a plan,
the Secretary shall approve or disapprove the plan
or require that it be modified. Where the land
involved is under the surface jurisdiction of another
Federal agency, that other agency must consent to the
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GUIDELINES AND REPORTS 761
terms of such approval: Provided, That the Secretary
shall delegate authority to the Secretary of Agriculture
to approve or disapprove operation and reclamation plans
involving lands in the national forest system, and the
Secretary of Agriculture shall consult with the Secretary
of the Interior with respect to significant technical
and geological questions and special exploration and
development systems.
(b) Pursuant to section 124, the Secretary shall
issue environmental regulations which shall—
(1) contain requirements designed to insure that
the operation of the lease (i) will not result in a
violation of applicable water or air quality standards,
(ii) will control or prevent erosion or flooding, release
of toxic substances, accidental subsidence of land or
rock slides, underground, outcrop or refuse bank fires,
damage to fish or wildlife or their habitat or to public
or private property, waste of mineral resources, and
hazards to public health and safety, and (iii) if the
surface has been disposed of with a reservation of all
or any minerals to the United States, will be in con-
formance with any State land use plans;
(2) require that the area be reclaimed, that a
reclamation plan be prepared and approved in advance
of initiation, significant change or continuance of
operations, and that reclamation work be made an integral
part of the operation and be completed in accordance
with any applicable performance standards within
"reasonably prescribed time limits;
(3) provide for filing, updating, and permanent
retention of engineering maps of all active surface
and underground operations for which engineering or
other maps are available;
(4) be developed with full participation of all
interested Federal departments and agencies. State
agencies, local governments, and other interested
bodies and groups;
(5) be compatible with, and assure at least the
same degree of environmental protection and reclama-
tion as is required by, any State law or regulatory
program of the State in which the lands are located; and
(6) be regularly reviewed and updated with public
notice and an opportunity for public participation.
(c) The regulations issued or revised under this
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762 LEGAL COMPILATION—SUPPLEMENT n
section shall be applicable to all leases issued purs-
uant to this Act, irrespective of whether a lease was
issued prior to the issuance or revision of such regula-
tions .
(d) The Secretary shall by regulation adopt per-
formance standards for the reclamation of mined areas
affected by surface mining operations. Those performance
standards shall include specifications that will ensure
(i) that mined areas will be returned, as soon as
feasible, to their original contour or to a contour
similarly appropriate considering the surrounding
topography and possible future uses of the area, (ii)
that there will be no deposition of spoil material,
except as necessary to the original excavation of earth
in a new mining operation, on the undisturbed or natural
surface within or adjacent to the mined area, and that
reclamation will be conducted concurrently with the
mining operation, except that the Secretary may allow
departures from these specifications where the operator
demonstrates that such departures will provide equal or
better protection of life, property, and environmental
quality or where the Secretary determines in individual
cases, in order to encourage the reclamation of pre-
viously mined areas, that the cost of reclamation on a
previously mined area in strict compliance with these
specifications is impracticable, and that the environmental
quality of the entire mined area would on balance be
clearly enhanced, (iii) that throughout the mined area,
soil conditions will be stabilized and water management
will be conducted such that landslides are prevented,
erosion is minimized, and water pollution by siltation
and by acid, highly mineralized or toxic material drainage
is minimized, and (iv) that the original type or
similarly appropriate type of vegetation will be re-
established on the area disturbed by the mining opera-
tions as soon after the soil handling is completed as
feasible. He shall revise all such performance standards
periodically as necessary.
(e) The Secretary shall by regulation adopt per-
formance standards for the reclamation of areas affected
by open pit mining, taking into consideration the unique
nature of such operations. Those performance standards
shall ensure (i) that new mined areas shall be returned,
to the extent feasible, to approximately their original
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GUIDELINES AND REPORTS 763
contour or to a contour similarly appropriate considering
the surrounding topography and possible future uses of the
area, (ii) that, to the extent feasible, there is no
permanent deposition of spoil material on undisturbed
or natural surfaces within or adjacent to the mined
area, (iii) that, throughout the permit area, soil
conditions will be stabilized and water management con-
ducted, such that landslides are prevented, erosion is
minimized, and pollution of water, including that in
water impoundments created by the mining operation, by
siltation and by acid, highly mineralized and toxic
material drainage is minimized, and (iv) that to the
extent feasible, original type or similarly appropriate
type vegetation will be re-established on the disturbed
land areas. He shall revise all such performance
standards periodically as necessary.
(f) The Secretary shall by regulation adopt per-
formance standards for reclamation of areas affected
by underground mining operations in order to prevent,
minimize or correct environmental harm, including
standards for minimizing subsidence and the continuing
discharge of acid, mineralized and toxic material
drainage. He shall revise all such performance standards
periodically as necessary.
(g) To advise the Secretary in developing regula-
tions under this section, there is established an
advisory committee composed of representatives of
the Departments of Agriculture and Commerce, and the
Environmental Protection Agency, and such other
representatives as the Secretary may designate.
(h) The Secretary may delegate to the land admin-
istering agency, the authority to enforce the regula-
tions issued under this section: Provided, That the
Secretary shall delegate such authority to the
Secretary of Agriculture with respect to lands in the
national forest system.
BONDS
SEC. 110. (a) The Secretary, or the Secretary of
Agriculture in the case of operations in the national
forest system, may require a bond to enforce any of the
requirements of this Act or regulations issued hereunder.
(b) The Secretary shall require posting of per-
formance bonds in amounts at all times sufficient to
insure reclamation in the event that the regulations are
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764 LEGAL COMPILATION—SUPPLEMENT n
not complied with or that reclamation is not completed
in accordance with the reclamation plan.
PENALTIES
SEC. 111. (a)(1) If any person fails to comply
with any regulations issued under this Act for a period
of fifteen days after receiving notice to correct such
failure, the Secretary may order cessation of such
person's operations and such person shall be liable for
a civil penalty of not more than $1,000 for each day of
continuance of such failure after said fifteen days.
(2) If any person knowingly violates any regula-
tion issued pursuant to this Act, he shall, upon con-
viction, be punished by a fine not exceeding $10,000
or by imprisonment not exceeding one year, or both.
The penalties prescribed in this section shall be in
addition to any other remedies afforded by this Act or
by any other law or regulation.
(b) At the request of the Secretary, the Attorney
General may institute a civil action in a district
court of the United States or the highest court in a
United States territory for an injunction or other
appropriate order (1) to prevent any lessee from engag-
ing in operations in violation of regulations issued
under this Act; (2) to prevent any lessee from placing
in commerce the minerals produced in violation of such
regulations; (3) to enforce a warrant issued under
section 124, or (4) to collect a penalty under this
section. The district court of the United States for
the district in which such person resides or is doing
business shall have jurisdiction to issue such injunc-
tion or order.
SURFACE LEASES
SEC. 112. (a) The lessee shall have, under his
lease, the right to use, free of charge, so much of the
surface of the leased area as may be reasonably required
for the actual extraction and removal of the mineral
subject to his lease. The lessee shall also, upon pay-
ment of fair market rental and upon such terms and
conditions as the Secretary may prescribe, have the
right to a lease for the amount of the surface reason-
ably necessary for other operations under the lease
and access thereto of (1) the leased area, and (2)
where the leased area is inadequate, nearby leasable
lands. Where the surface of the area to be covered by
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GUIDELINES AND REPORTS 765
the surface lease is under the jurisdiction of any
Federal agency other than the Department of the Interior
such lease may be issued only upon such terms and
conditions as that other Federal agency may prescribe
with respect to the use and protection of the nonmineral
interests in such area.
(b) The Secretary may delegate to the land admin-
istering agency the authority to enforce the conditions
of the surface lease issued under this section: Provided,
That the Secretary shall delegate such authority to the
Secretary of Agriculture with respect to lands in the
national forest system.
LIMITATIONS ON LEASE AND OPTION ACREAGE
SEC. 113. (a) Subject to approval by the Secretary,
a lessee who combines his interests with those of another
lessee in order to construct mills and benefication
plants or to carry on the business of a refinery for
their joint use or to establish and construct as a common
carrier a pipeline or railroad to transport oil and
gas from their several wells or minerals from their
several mines, or from those of other lessees, shall not,
as a result of such action, be charged under section 201,
301, or 501 with any acreage embraced in that other
lessee's lease.
(b) No person shall be charged with a pro rata share
of any acreage holdings of any association or corpora-
tion unless he is the beneficial owner of more than 10
per centum of the stock or other indicia of ownership
or control of that association or corporation.
(c) Any leases or interests in leases acquired by
descent, will, or judgment in excess of the prescribed
limitations may be held for not more than two years after
acquisition. Excess acreage acquired as the result of
corporate mergers may be held for not more than six months,
ASSIGNMENTS OF LEASE AND EXTENSIONS OF LEASES
SEC. 114. (a) Any lease issued under this Act may
be assigned, subject to final approval of the Secretary,
as to all or part of the acreage included therein and
as to either a divided or undivided interest therein,
to any person qualified to hold a lease under this
Act: Provided, That a nonproducing oil and gas lease may
not be assigned in tracts of less than six hundred and
forty acres except where such a lease contains less than
six hundred and forty acres and, in that event, the lease
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766 LEGAL COMPILATION—SUPPLEMENT n
may "be assigned only in its entirety. The Secretary will
approve an assignment of separate zones or deposits under
a lease, or of a part of a smallest legal subdivision,
only when he considers such an assignment to be in the
interest of conservation.
(b) Any lease assigned in whole shall be taken
subject to any approved existing plan of operation or
reclamation, and any lease assigned in part shall be
taken subject to all applicable portions of such a plan.
(c) An assignment of part of the acreage subject to
a lease or of separate zones shall segregate the assigned
and retained portions into separate leases and such
segregated leases shall continue for the term of the
original lease.
(d) Upon segregation by assignment of a producing
or producible lease, or of a lease held beyond its
initial term by payment of compensatory royalty, the
segregated lease of an undeveloped assigned or retained
part shall continue for the primary term of the original
lease, but for not less than two years and so long there-
after as the conditions established for extension of
a lease beyond the primary term in the title under which
the lease was issued are met.
SUSPENSION, WAIVER, OR REDUCTIONS OF RENTS
OR ROYALTIES
SEC. 115. (a) The Secretary, for the purpose of
encouraging the maximum ultimate recovery of leasable
minerals or in the interest of conservation of natural
resources or to protect the environment or upon recom-
mendation of the Secretary of Agriculture with respect
to national forest system lands, may suspend operations
or production, or both on any lease. He may suspend,
waive, or reduce the rental or minimum royalty, or
reduce the royalty on an entire leasehold, or on any
tract or portion thereof segregated for royalty pur-
poses, wherever, in his judgment, it is necessary to
do so in order to promote development or the leases
cannot be successfully operated under the terms pro-
vided therein.
(b) In the event the Secretary shall direct the
suspension of operations or production, or both, under
any lease granted under this Act, any payment of rental
or of minimum royalty prescribed by that lease shall be
likewise suspended during such period of suspension of
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GUIDELINES AND REPORTS 767
operation or production, or both, and the term of such
lease shall be extended by adding any such suspension
period thereto.
RIGHT TO WATER ON LEASABLE LANDS
SEC. 116. Upon application by a lessee, the Secre-
tary shall grant the lessee a right to drill for, produce
and use so much water subject to Federal ownership,
appropriation, or utilization on lands subject to his
lease as may be needed in connection with activities
under his lease, except where the Secretary determines
that the lessee's production and use of such water
would adversely affect the existing rights of other
water users or have a significant adverse environmental
impact.
SURRENDER, CANCELLATION, AND TERMINATION OF LEASES
SEC. 117. (a) Any lease issued under this Act may
be surrendered at any time, but such a surrender will
not relieve the lessee of any liability which has
accrued under the lease prior to the surrender or en-
title the lessee to the return of any rental or other
moneys already paid.
(b) Except as provided in section 118, in the event
of a breach of any of the terms and conditions of any
lease or the regulations issued under this Act, that
lease shall be subject to cancellation by the Secretary
after thirty days notice to the lessee and failure
of the lessee to correct the condition giving rise to
the breach, in accordance with regulations promulgated
by the Secretary.
(c) Any person involved in, or made a party to,
such an administrative action shall have the right to
a prompt dismissal upon showing that he holds and
acquired, as a bona fide purchaser for value, the
interest involving him as a party. No hearing as to
such a showing shall be held unless the Secretary
presents prima facie evidence of a violation of this
Act on the part of the alleged bona fide purchaser.
TERMINATION OP LEASE FOR DEFAULT IN PAYMENT
OF RENTAL: REINSTATEMENT
SEC. 118. (a) Upon failure of a lessee to pay the
rental due on or before the anniversary date of a lease
which is not a producing or producible lease, the lease
shall terminate by operation of law.
(b) Where the rental is paid or is tendered within
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768 LEGAL COMPILATION—SUPPLEMENT n
twenty days after the due date, the lessee may, within
that period, file with the Secretary a petition for
reinstatement of the lease. If it is shown to the
satisfaction of the Secretary that the default in pay-
ment of the rental was not due to a lack of reasonable
diligence on the lessee's part, and if no valid lease
covering the same land has been issued prior to the
filing of the petition, the Secretary may reinstate
the lease upon such terms and conditions as he may
prescribe. Upon reinstatement of a lease, the
Secretary may extend it for a period of time not in
excess of that between the date of termination and
the date of reinstatement, if he deems such an extension
justifiable.
UNITIZATION
SEC. 120. (a) Leases issued under this Act
may, in the interest of conservation or in the public
interest, be made subject to unitized exploration,
development, and production under regulations issued by
the Secretary. These regulations may provide that (1)
leases subject to a unit plan will be relieved from
acreage limitations, (2) production or discovery on any
lease in a unit will be construed as production or
discovery on all leases in that unit, (3) leases in-
cluded in a unit plan will be subject to extension for
the life of the unit, (4) a lease, upon exclusion from
a unit, may be extended for two years and so long there-
after as it is a producing or producible lease or until
the termination date in the lease whichever is later,
and (5) leases issued under other statutes may be
included with the consent of all lessees, in such unit
plans and, if so included, shall be subject to the pro-
visions of this section.
(b) By regulation the Secretary may require a lessee
under this Act to enter a unit plan under this section
and may provide for the determination of participating
acreage within a unit and require the payment of minimum
royalty on only that portion of a lease within the
participating acreage while all other portions of the
lease are subject to rental.
(c) Any unit plan authorized by the Secretary shall
contain a provision whereby authority is vested in the
Secretary to set, alter, or modify from time to time
the rate of prospecting and development and quantity
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GUIDELINES AND REPORTS 769
and rate of production under that unit plan.
UNLAWFUL TRUSTS; FORFEITURE
SEC. 121. Except as otherwise provided in this
Act, if any lands or deposits subject to the pro-
visions of this Act shall be subleased, trusteed,
possessed, or controlled by any device permanently,
temporarily, directly, indirectly, tacitly, or in any
manner whatsoever, so that they form a part of or are
in anywise controlled by any combination in the form
of an unlawful trust, with the consent of the lessee
or optionee, or form the subject of any contract or
conspiracy in restraint of trade in the mining or
selling of any leasable mineral entered into by the
lessee or optionee or any agreement or understanding,
written, verbal, or otherwise, to which such lessee or
optionee shall be a party, of which his or its output
is to be or become the subject, to control the price or
prices thereof or of any holding of such lands by any
individual, partnership, association, corporation, or
control in excess of the amounts of lands provided in
this Act the lease, option, or permit shall be forfeited
by appropriate court proceedings.
RIGHTS-OF-WAY FOR PIPELINES
SEC. 122. Rights-of-way over, upon or through all
leasable lands and naval petroleum and oil shale reserves
may be granted, issued or renewed by the Secretary (and,
where the surface of the lands is administered by an-
other Federal agency with the consent of the head of that
agency) for pipeline purposes for the transportation of
oil or natural gas and storage facilities in connection
therewith to any person. Such rights-of-way shall ex-
tend to (a) the lands occupied by the pipeline and its
appurtenances, including but not limited to the line
of pipe, valves, pump stations, supporting structures
(including berms), monitoring devices, surge and storage
tanks, and terminals; (b) the lands occupied by facilities
necessary for the operation or maintenance of the pipe-
line and its appurtenances; and (c) such adjacent lands
as are necessary to provide for access, operation,
maintenance or public safety. From time-to-time, the
Secretary may issue such permits for temporary use of
public lands in the vicinity of the pipeline and its
appurtenances and facilities, as may be appropriate to
enable the grantee to construct, operate, maintain, or
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770 LEGAL COMPILATION—SUPPLEMENT n
terminate the pipeline and its appurtenances and
facilities, or to gain access thereto. Rights-of-way
and permits shall be subject to such regulations and
terms and conditions as the Secretary may prescribe
regarding extent, duration, application, charges, survey,
location, construction, operation, maintenance and use.
Such pipelines and terminals shall be constructed,
operated, and maintained as common carriers, and shall
accept, convey, transport, or purchase, without discrimi-
nation, oil or natural gas produced from leasable lands
in the vicinity of the pipeline as determined by the
Secretary in such proportionate amounts as the Secre-
tary may, after a full hearing with due notice thereof
to the interested parties and a proper finding of facts,
determine to be reasonable. However, the common carrier
provisions of this section shall not apply to any
natural gas pipeline operated by any person subject to
regulation under the Natural Gas Act, 52 Stat. 821, as
amended, or by any public utility subject to regulation
by a State or municipal regulatory agency having juris-
diction to regulate the rates and charges for the sale
of natural gas to consumers within the State or munici-
pality. The Secretary shall provide in every lease
subject to Title II of this Act that the lessee, if owner
or operator of any pipeline which may be operated in
an area accessible to lands under leases issued under
Title II, shall at reasonable rates and without discrimi-
nation accept and convey the oil and gas produced
under such leases in such accessible areas.
The Secretary, prior to granting, issuing, or re-
newing a right-of-way pursuant to this section which
may have a significant impact on the environment, shall
require the applicant to submit a plan of construction,
operation, and rehabilitation which shall comply with
regulations issued by the Secretary designed to insure
that the use of the right-of-way will have the minimum
adverse impact on the environment. The Secretary shall
issue regulations which shall include, but shall not be
limited to: requirements to insure that activities in
connection with the right-of-way will not violate
applicable air and water quality standards; and require-
ments to control or prevent (1) damage to the environ-
ment (including damage to fish and wildlife habitat),
(2) damage to public or private property, and (3) hazards
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GUIDELINES AND REPORTS 771
to public health and safety. Such regulations shall be
regularly revised. The issuance or revision of such
regulations shall be applicable to every right-of-way
granted, issued or renewed pursuant to this section,
irrespective of whether that right-of-way was granted,
issued or renewed prior to the issuance or revision of
such regulations. Failure to comply with the provisions
of this section or the regulations and conditions pre-
scribed by the Secretary shall be grounds for forfeiture
of the grant by the United States district court for the
district in which the property, or some part thereof, is
located in an appropriate proceeding.
REPEAL OF EXISTING LAWS
SEC. 123. (a) Except to the extent necessary to pre-
serve leases, permits, claims, and other valid existing
rights under the following statutes, and to authorize the
Secretary to take such actions (including the issuance
of new regulations) as may be needed in the continued
Federal administration of those leases, permits, claims,
and other valid existing rights, the following statutes
are repealed:
(1) the Mineral Leasing Act of February 25, 1920, as
amended and supplemented (30 U.S.C. 181-263), except that
nothing in this Act shall affect the authority of the
Secretary of the Navy with respect to lands within the
naval petroleum or oil shale reserves;
(2) the Potash Leasing Act of 1927 (30 U.S.C. 281-
287);
(3) the Sulphur Leasing Act of April 17, 1926,
as amended (30 U.S.C. 271-276);
(4) the Mineral Leasing Act for Acquired Lands (30
U.S.C. 351-359);
(5) the Railroad and Other Rights-of-Way Leasing
Act of May 31, 1930 (30 U.S.C. 301-306); and
(6) the Mining Law of 1872, as amended and supple-
mented and related Acts (30 U.S.C. chapters 2, 12A, and
16, and sections 161 and 162).
(b) Except to the extent necessary to preserve
valid existing rights under the following statute, and
to authorize the Secretary to take such actions (in-
cluding the issuance of new regulations) as may be
needed in the continued Federal administration of those
valid existing rights, the Materials Act of July 31, 1947,
as amended (30 U.S.C. 601-604), is further amended in
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772 LEGAL COMPILATION—SUPPLEMENT n
the following respects:
(1) by the deletion from the first sentence of
section 1 (30 U.S.C. 601) of the words "mineral
materials (including but not limited to common varieties
of the following: sand, stone, gravel, pumice, pumicite,
cinders and clay) and", of the words "mineral or," and
of the words "and the United States mining laws,"? and
(2) by the deletion from the first sentence of section
4 (30 U.S.C. 604) of the words "sand, stone, gravel and".
(c) Except to the extent necessary to preserve valid
existing rights, any provision in any other statute which
provides for the disposition of a mineral subject to this
Act is hereby repealed or modified to the extent neces-
sary to conform to this Act, except that nothing in this
Act shall be deemed to modify or amend the Territorial
Submerged Lands Act of 1963 (48 U.S.C. 1701-1704), and
nothing in this Act shall prohibit the disposal by the
General Services Administration of minerals as part of
a full fee title to property covered by the Federal
Property and Administrative Services Act of 1949 (40
U.S.C. 471-535).
(d) Any rights or claims derived from any of the laws
or provisions hereby repealed or modified which existed
on the date of enactment of this Act shall not be
affected thereby, but shall remain subject to the pro-
visions of the laws under which such rights were de-
rived, except that any mining claims under the Mining
Law of 1872, as amended (Revised Statutes 2318-2352),
must be recorded with the Secretary within one year
after the effective date of this Act. Any mining claim
not so recorded shall be conclusively presumed to be
abandoned and shall be void. Such recordation will not
render valid any claim which was not valid on the
effective date of this Act, or which becomes invalid
thereafter.
(e) Any claim recorded pursuant to subsection (d),
for which the claimant has not made application for a
patent within three years from the date of recordation,
shall be presumed to be invalid unless the claimant
presents to the Secretary clear evidence of its
validity.
REGULATIONS
SEC. 124. (a) The Secretary is authorized to issue
and revise as appropriate such regulations as he finds
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GUIDELINES AND REPORTS 773
necessary or desirable to carry out the provisions and
purposes of this Act.
(b) The Secretary is authorized to make such
inspections and investigations as he considers necessary
or appropriate to develop or enforce Federal regula-
tions, or otherwise to carry out the purposes of this
Act, and for such purposes authorized representatives of
the Secretary shall have the right of entry to any area
covered by any lease. In order to enforce the right of
entry into a specific area the Secretary may obtain a
warrant from the appropriate district court to authorize
such entry.
TITLE II—Oil and Gas
ACREAGE LIMITATIONS; MAXIMUM LEASE AREAS
SEC. 201. (a) Not more than two hundred and forty-
six thousand and eighty acres may be held or controlled
under oil and gas leases and options by a person in any
one State. The maximum area which may be included in any
one oil and gas lease issued under this Act is two
thousand five hundred and sixty acres.
(b) The acreage limitation prescribed in paragraph
(a) shall not affect the right of any person to continue
to hold or control in the State of Alaska oil and gas
leases and options not exceeding in total six hundred
thousand acres which are in effect at the time of enact-
ment of this Act. However, any surrender, termination,
or assignment of a lease covering land in Alaska in
excess of two hundred and forty-six thousand and eighty
acres shall not authorize the person which surrendered
or assigned the lease or which held or controlled the
lease at the time of termination, to hold or control
other leased acreage in substitution for the acreage
subject to the surrendered, terminated, or assigned
lease,
ANNUAL RENTALS, ROYALTIES; LEASE TERMS
SEC. 202. (a) An oil and gas lease issued under
this Act shall be for a term of five years and so long
thereafter as it is a producing or producible lease.
Any lease maintained in accordance with applicable
statutory and regulatory requirements, covering land
on which, or for which under an approved cooperative
or unit plan of development or operations, diligent
drilling operations are commenced prior to the end of
its primary or an extended term and are being prosecuted
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774 LEGAL COMPILATION—SUPPLEMENT n
at that time shall be extended for two years and so long
thereafter as it is a producing or producible lease.
Unless the lease is a producing or producible lease at
the end of the tenth year after its effective date, it
shall terminate automatically by operation of law.
(b) The Secretary shall, by regulation, prescribe
annual rentals on leases which shall not be less than
$1 per acre or fraction thereof. The leases shall
require payment of a royalty of not less than 12-1/2
per centum in amount or value of production, as deter-
mined by the Secretary- A minimum royalty, to be
established by the Secretary at a rate of not less than
$2 per acre, shall be payable in lieu of rental at the
expiration of each lease year beginning after the lease
becomes a producing or producible lease.
(c) Rental and royalty rates and other terms and
conditions of a lease shall be subject to readjustment
by the Secretary twenty years after the issuance of the
lease and at the conclusion of each ten-year period
thereafter.
COMMUNITIZATION AND DEVELOPMENT CONTRACTS
SEC. 203. (a) When separate tracts cannot be
independently developed and operated in conformity
with a well-spacing or development program for oil and
gas, established by the Secretary or adopted by him,
any lease for oil and gas (or a portion thereof), issued
under this Act, may be pooled with other lands, whether
or not owned by the United States, under a communitiza-
tion or drilling agreement providing for an apportion-
ment of production or royalties among the separate
tracts of land comprising the drilling or spacing unit
when determined by the Secretary to be in the public
interest, and operations or production pursuant to such
an agreement shall be deemed to be operations or
production as to each such lease committed thereto.
(b) The Secretary is authorized, on such conditions
as he may prescribe, to approve operating, drilling, or
development contracts made by one or more lessees of
oil and gas, with one or more persons whenever, in his
discretion, the conservation of natural products or the
public convenience or necessity may require it or the
interests of the United States may be best served thereby.
The Secretary may provide by regulation that all leases
operated under such approved operating, drilling, or
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GUIDELINES AND REPORTS 775
development contracts, and interests thereunder, shall
be excepted in determining holdings under the provisions
of this Act.
, STORAGE OF OIL AND GAS
SEC. 204. With the consent of the Federal agency with
jurisdiction over the surface of leasable lands where
applicable, the Secretary, to avoid waste or to promote
conservation of natural resources, may authorize the sub-
surface storage of oil or gas, whether or not produced
from federally owned lands, in lands leased or subject
to lease under this Act. Such authorization may provide
for the payment of a storage fee or rental on such stored
oil or gas or, in lieu of such fee or rental, for royalty
other than that prescribed in the lease when such stored
oil or gas is produced in conjunction with oil or gas not -
previously produced. Any lease on which storage is so
authorized shall be extended at least for the period of
storage and so long thereafter as oil or gas not pre-
viously produced is produced in paying quantities.
DRAINAGE AGREEMENTS; EXTENSION OF LEASE TERM
SEC. 205. (a) Whenever it appears to the Secretary
that leasable lands not subject to an oil and gas
lease are being drained of oil and gas by wells on
adjacent lands he may negotiate agreements with the
owners or operators of such wells to compensate the United
States for such drainage: Provided, however, That such
agreements may be negotiated only when it appears that
the unleased lands cannot or should not be independently
leased and developed.
(b) Whenever it appears to the Secretary that
leasable lands under lease are being drained of oil or
gas by wells on adjacent land, he shall require either
that the lessee drill and produce all wells necessary
to protect the leased lands from such drainage where
economically feasible or that the lessee pay as com-
pensatory royalty such amount as the Secretary in his
discretion taking into account economic feasibility,
may determine sufficient to compensate the United
States for such loss.
(c) The term of any lease for which compensatory
royalty is paid shall not expire during the period in
which such royalty is paid, and for a period of one year
from discontinuance of such payment and so long there-
after as oil or gas may be produced in paying quantities.
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776 LEGAL COMPILATION—SUPPLEMENT n
TITLE III—Coal (Including Leonardite and Peat); Oil
Shale? Borates, Carbonates, Halides, Nitrates. Phosphates,
Silicates, and Sulfates of Calcium, Magnesium, Sodium, and
Potassium; Elemental Sulfur; and Other Bedded Minerals
ACREAGE LIMITATIONS; MAXIMUM LEASE AREAS
SEC. 301. (a) The maximum acreage that may be held
or controlled directly or indirectly by a person in any
one State under lease, and option, is forty-six thousand
and eighty acres for coal, fifteen thousand three
hundred and sixty acres for sodium, twenty-five thousand
six hundred acres for potassium, five thousand one
hundred and twenty acres for sulfur, ten thousand two
hundred and forty acres for oil shale, and twenty thousand
four hundred and eighty acres for all other leasable
minerals subject to this title. Not more than twenty
thousand four hundred and eighty acres may be held or
controlled, directly or indirectly, under phosphate
lease, and option, in the entire United States.
(b) The maximum area which may be included in a
single lease is five thousand one hundred and twenty
acres for coal and oil shale and two thousand five
hundred and sixty acres for any other mineral subject
to this title.
TERMS OP LEASES
SEC. 302. (a) A lease for a mineral subject to this
title shall be for a term of twenty years and for so long
thereafter as that mineral is produced annually in paying
quantities from that lease or from one or more leases in
an approved logical mining unit in which that lease is
included. The Secretary shall, by regulation, prescribe
annual rentals on leases of not less than $1 per acre or
fraction thereof. A lease shall require payment of a
royalty in such amount as the Secretary shall determine.
The lease shall include such other terms and conditions
as the Secretary shall determine. Such rents, royalties,
and other terms and conditions of the lease will be
subject to readjustment at the end of its primary term
of twenty years and at the end of each ten-year period
thereafter if the lease is extended by production or
if it is renewed as provided in section 303.
(b) The lessee shall be obligated to commence and
to conduct diligent mining operations on one or more of
his leases grouped in an approved logical mining unit
within the time specified by the Secretary upon the
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GUIDELINES AND REPORTS 777
approval of the plan of operations.
(c) Where diligent mining operations are prevented
by strikes or other circumstances neither caused by nor
attributable to the lessee, the Secretary may, if in his
judgment the public interest will be served thereby,
provide in the lease for payment in advance of a minimum
royalty in lieu of continuous operations under the lease.
RENEWAL OF LEASES
SEC. 303. (a) In the absence of extension by pro-
duction of a lease issued pursuant to title III of this
Act and, if compliance is made with all of the terms
and conditions of the lease, and, unless otherwise
prescribed by law, the lease may be renewed after its
primary term on such terms and conditions as may be
prescribed by the Secretary for additional ten year
periods and so long as there is annual production in
paying quantities from at least one lease in an approved
mining unit grouping of leases, or diligent mining
operations or other such productive mining work is per-
formed thereon acceptable to the Secretary.
(b) As a condition precedent to renewal, the
Secretary may, in his discretion readjust the terms and
conditions, including rental and royalty rates, and
impose such convenants and conditions in the renewal
lease as he may deem reasonably necessary.
TITLE IV—Construction Minerals
DISPOSAL OF CONSTRUCTION MINERALS
SEC. 401. Except as to leasable lands within the
definition of property in section 3(d) of the Federal
Property and Administrative Services Act of 1949 (40
U.S.C. 472) the head of any Federal agency with surface
jurisdiction of leasable lands is authorized, under
such regulations as he may prescribe, to issue leases
for the exploration, development, and production, or
contracts for the sale, at fair market value, of
construction minerals in the leasable lands under his
jurisdiction if such leasing or sale is not expressly
prohibited by other laws of the United States, and is
not detrimental to the public interest. The rental on
any lease shall not be less than $1 per acre or fraction
thereof. All leases and, except as provided in section
403, all contracts for sales shall be granted to the
highest responsible qualified bidder, under general
regulations issued by the Secretary.
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778 LEGAL COMPILATION—SUPPLEMENT n
FREE USE PERMITS
SEC. 402. The head of any Federal agency, in his
discretion, may issue a permit to any other Federal agency
or any State, or agency or subdivision of a State, or
any other nonprofit association or corporation to develop
and produce, without charge, construction minerals for
other than industrial or commercial use or purposes of
resale from leasable lands the surface of which is
under his jurisdiction.
NEGOTIATED SALES; REPORTS TO CONGRESS
SEC. 403. (a) The head of any Federal agency may
authorize the negotiation of a contract for the disposal
of construction minerals, from leasable lands under his
jurisdiction, (i) if the minerals are to be used in a
public works program on behalf of a Federal, State, or
local agency and the public exigencies will not allow the
delay incident to advertising; and (ii) if the disposal
involves a mineral deposit for which no competitive inter-
est is shown.
(b) The head of any Federal agency shall report to
the Congress on January 1 and July 1 of each year the
number of negotiated sales, the names of the purchasers,
the appraised value of the construction minerals, the
amount of the contract, and the bases upon which the
determination was made to enter into a negotiated con-
tract rather than after competitive bidding.
TITLE V—Hard Rock Minerals
ACREAGE LIMITATIONS; MAXIMUM LEASE AREAS
SEC. 501. Not more than twenty thousand four hundred
and eighty acres may be held or controlled under hard
rock mineral leases by a person in any one State. The
maximum area which may be included in any one hard rock
mineral lease is six hundred and forty acres.
LEASE TERMS
SEC. 502. (a) A hard rock mineral exploration lease
shall be issued for a period of ten years and shall grant
an exclusive right to explore for all hard rock minerals
in the land subject to the lease. The lease will be
subject to an annual rental of not less than 50^ per acre
or fraction thereof and such other conditions as the
Secretary may prescribe.
(b) At any time before the end of the ten-year
period a production lease shall be issued to the explora-
tion lessee, if he shows, to the satisfaction of the
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GUIDELINES AND REPORTS 779
Secretary, that he has discovered on the leased lands
minerals in paying quantities. A production lease will
grant the exclusive right to produce and develop only
those hard rock minerals which the lessee discovered
in paying quantities under the exploration lease. If
the production lessee discovers on the land subject
to his lease other hard rock minerals, his lease, shall,
upon his application, be revised to include those
additional minerals. A production lease will be sub-
ject to an annual rental of not less than $2 per acre
or fraction thereof and such royalty and other con-
ditions as the Secretary may prescribe. The produc-
tion lease will be for a period of twenty years and as
•long thereafter as the lessee conducts diligent
mining operations on lands subject to the lease or on
other lands subject to a production lease embraced in
the same logical mining unit, as approved by the
Secretary. All terms and conditions of a production
lease will be subject to readjustment at the end of
twenty years and at the end of each ten-year period
thereafter.
(c) If, at the end of twenty years after the issu-
ance of the production lease, there is no production
under the lease or any other production lease in the
same approved logical mining unit, it will automatically
terminate unless the lessee shall show, to the satisfac-
tion of the Secretary, that the deposits subject to his
production lease contain minerals in such quantity and
quality as to justify retention for commercial develop-
ment and production. Upon such a showing, the Secretary
is authorized to renew the production lease for ten
years and so long thereafter as there is production in
paying quantities and upon such rental, royalty, and
other conditions as he may prescribe. If, at the end
of ten years, there is no production on a production
lease renewed under this subsection or on another
production lease in the same approved logical mining
unit, the production lease shall terminate and shall
not be subject to renewal.
(d) Where diligent mining operations are prevented
by strikes or other circumstances neither caused by nor
attributable to the lessee, the Secretary may, if in his
judgment the public interest will be served thereby, pro-
vide in the lease for payment in advance of a minimum
royalty in lieu of continuous operations under the lease.
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GUIDELINES AND REPORTS 781
Managing the Land
Mined Area
Protection
415
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GUIDELINES AND REPORTS 783
THE SECRETARY OF THE INTERIOR
WASHINGTON
February 15, 1973
Dear Mr. [President/Speaker]:
There is enclosed a draft bill "To provide for the
cooperation between the Federal government and the
States with respect to environmental regulations for
mining operations, and for other purposes".
We recommend that this bill, a part of the environmental
program announced February 15, 1973, by the President
in his Environment and Natural Resources State of the
Union Message, be referred to the appropriate committee
for consideration and that it be enacted.
The adverse environmental effects that can result from
mining operations have been a subject of growing national
concern in recent years. The ever increasing demand
for minerals, coupled with dramatic developments in
our ability to recover them has led to an increase in
mining activity. These activities will continue to be
an important part of the American economy.
Mining operations, however, also pose a serious threat
to the environment. In varying degrees State legis-
latures and mining companies have responded to the
problem, but this effort suffers from lack of uniformity
and unanimity.
The proposed bill would require that all ongoing and
future mining activities be conducted in a way as to
minimize their adverse environmental effects. The
legislation provides for the development of State
regulations based on minimum Federal performance
standards which will require environmental consideration
to be built into the mining operation.
The Administration's bill recognizes that the respon-
sibility for developing and enforcing regulations rests
with the States, while also recognizing that the effort
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784 LEGAL COMPILATION—SUPPLEMENT n
must be nationwide with minimum standards enforced
to protect the environment, and to the extent possible,
place industry on an equal level in every State. The
bill gives the States the opportunity to develop and
submit regulations, in accordance with specific minimum
performance standards, for approval by the Secretary
of the Interior. If the State fails to develop an
acceptable program within two years after enactment
or if the State fails to enforce effectively its
approved program at any time, the bill authorizes the
Secretary to administer and enforce a mining and
reclamation program within the State.
This legislation is long overdue. The longer it is
put off, the larger the ultimate cost will be.
The Office of Management and Budget has advised that
this legislative proposal is in accord with the program
of the President.
Sincerely yours.
/s/ Rogers C.B. Morton
Secretary of the Interior
Hon. Spiro T. Agnew
President of the Senate
Washington, D.C. 20510
Hon. Carl Albert
Speaker of the
House of Representatives
Washington, D.C. 20515
Enclosure
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GUIDELINES AND REPORTS 785
S. 923
H.R. 4863
A_ BILL
To provide for the cooperation between the Federal
Government and the States with respect to environmental
regulations for mining operations, and for other
purposes.
Be it enacted by the Senate and House of Represen-
tatives of the United States of America in Congress
assembled. That this Act may be cited as the "Mined Area
Protection Act of 1973".
TITLE I
Section 101. Definitions. For the purpose of this
Act, the terms —
(a) "Secretary" means the Secretary of the Interior;
(b) "mining operations" means (1) activities con-
ducted on the surface or underground for the exploration
for, development of, or extraction of minerals, organic
or inorganic, from their natural occurrences, including
strip or auger mining, dredging, quarrying, open pit,
in situ distillation or retorting and leaching; and
(2) the cleaning, concentrating, refining, or other
processing or preparation (excluding smeltering) and
loading for interstate commerce of crude minerals at or
near the mine site. It does not include the extraction
of minerals in a liquid or gaseous state by means of
wells or pipes unless the process includes in situ
distillation or retorting. For the purposes of this
Act, prospecting activities are excluded from this
definition;
(c) "prospecting" means the first on-the-ground or
airborne phase of a search limited to the gathering of
evidence of mineralization of potential commercial worth
and i-s not for the purpose of establishing mineral
reserves. Prospecting includes geological reconnais-
sance, the use of geophysical and geochemical methods,
and preliminary sampling but does not include the con-
struction of access roads, mechanical trenching,
construction of semi-permanent camp facilities or other
activities which will result in appreciable disturbances
to the natural condition of the area;
(d) "underground mining operations" means those
mining operations carried out beneath the surface by
means of shafts, tunnels, or other underground mine
openings and such use of the adjacent surface as is
419
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786 LEGAL COMPILATION—SUPPLEMENT n
incidental thereto;
(e) "surface mining operations" means those mining
operations carried out on the surface, including strip,
area strip, contour strip, or auger mining, dredging,
and leaching, or any combination thereof, and activities
related thereto;
(f) "open pit mining" means that surface mining
method in which the overburden is removed from atop the
mineral and in which, by virtue of the thickness of the
deposits, mining continues in the same area proceeding
predominantly downward with lateral expansion of the pit
necessary to maintain slope stability and necessary to
accommodate the orderly expansion of the total mining
operation. For the purposes of this Act, this
definition shall include caving methods and leaching
activities associated with open pit mining. For the
purposes of this Act, the mining of surface coal
deposits, except those relating to open pit anthracite
coal operations, is excluded from this definition;
(g) "mined area" means the surface and subsurface
of an area in which mining operations are being or have
been conducted including private ways and roads appur-
tenant to any such area, land excavations, workings,
refuse banks, tailings, spoil banks, and areas in which
structures, facilities, equipment, machines, tools, or
other materials or property which result from or are
used in, mining operations are situated;
(h) "operator of a mining operation" means an
individual, society, joint stock company or a partner-
ship, association, corporation, or other organization
controlling or managing a mining operation;
(i) "previously mined area" means a mined area on
which mining operations have been abandoned prior to the
enactment of this Act or a mined area on which mining
operations are abandoned subsequent to the enactment of
this Act due to the impracticability of the mining
operation under reclamation standards established by or
under regulations pursuant to this Act;
(j) "State" means a State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico,
the Virgin Islands, American Samoa, and Guam;
(k) "reclamation" means the process of restoring a
mined area affected by a mining operation to its
original or other similarly appropriate condition,
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GUIDELINES AND REPORTS 787
considering past and possible future uses of the area
and the surrounding topography and taking into account
environmental, economic, and social conditions; and
(1) "soil" means all of the overburden materials
that overlay a natural deposit of minerals, organic
or inorganic, and also means such overburden materials
after removal from their natural state by mining
operations.
Section 102. Congressional Findings and Declara-
tions. The Congress finds and declares—
(a) that mining operations are essential activities
affecting interstate commerce which contribute to the
economic well-being, security and general welfare of the
Nation;
(b) that there are mining operations on public and
private lands in the Nation which adversely affect the
environment by destroying or diminishing the avail-
ability of public and private land for commercial,
industrial, recreational, agricultural, and forestry
purposes, by causing erosion and landslides, by con-
tributing to floods and the pollution of waters and
air, by destroying fish and wildlife habitat and im-
pairing natural beauty, by frustrating efforts to
conserve soil, water and other natural resources, by
destroying public and private property, and by creating
hazards to life and property;
(c) that the initial and principal continuing respon-
sibility for developing and enforcing environmental
regulations for mining operations should rest with the
States;
(d) that the cooperative effort established by this
Act is necessary to the prevention and elimination of
the adverse environmental effects of present and future
mining operations; and
(e) that it is the purpose of this Act to encourage
a nationwide effort to regulate mining operations to
.prevent or substantially reduce their adverse environ-
mental effects, to stimulate and encourage the develop-
ment of new, environmentally sound mining and
reclamation techniques, and to assist the States in
carrying out programs for those purposes.
TITLE II—ENVIRONMENTAL REGULATIONS FOR MINING OPERATIONS
Section 201. State Environmental Regulations for
Mining Operations.
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788 LEGAL COMPILATION—SUPPLEMENT n
(a) Each State, after public hearings and within two
years of the date of enactment of this Act, may submit
to the Secretary for review and approval or disapproval
in accordance with this section State environmental
regulations for mining operations on all lands within
such State, except Federally-owned land or land held in
trust by the United States for Indians. A state may at
any time thereafter submit revisions to such regulations
to the Secretary for review and approval or disapproval
in accordance with this section. The Secretary shall
approve the regulations or revision of such regulations
submitted to him if in his judgment:
(1) the regulations require that, for any mining
operation or mining operation activity, as defined in
section 101 (b), not in existence on the date of the
Secretary's approval of the regulations, the operator
proposing to initiate such operation or activity must
obtain a permit prior to the commencement thereof from
a State agency established to administer the regulations
and provide that such a permit will be issued only after
the operator (i) files a mining and reclamation plan
describing the manner in which his reclamation activity
will be conducted showing that such activity will be
conducted in a manner consistent with the regulations
and (ii) establishes to the satisfaction of the State
agency that the operator has the physical and financial
capacity to conduct his mining and reclamation activity
in accordance with the reclamation plan;
(2) the regulations require operators of mining
operations in existence on the date of the Secretary's
approval of the regulations to obtain permits in
accordance with paragraph (1) of this subsection within
one year of such date, except that (i) permits issued
for such operations may allow up to two years from the
date of the Secretary's approval of the regulations for
the operators to come into compliance with performance
standards adopted or designated under paragraphs (b) (3),
(b)(4), and (b)(5) of this section; and (ii) permits
issued for such operations producing less than 10,000
tons per year of mine run material may allow departures
from the performance standards for up to five years
from the date of the Secretary's approval of the regu-
lations, to the extent found by the State agency to be
necessary on the basis of the small size of such
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GUIDELINES AND REPORTS 789
operations, their significance to the local economy,
and the extent of possible environmental damage;
(3) the regulations contain requirements
designed to insure that the mining operation (i) will
not result in a violation of applicable water or air
effluent or emission standards and regulations, (ii)
will control or prevent erosion or flooding, release
of toxic substances, accidental subsidence of mined
areas or land or rock slides, underground, outcrop,
or refuse bank fires, damage to fish, or wildlife or
their habitat, or public or private property, and
hazards to public health and safety, and (iii) will
be in conformance with any State land use planning
process or program;
(4) the regulations require reclamation of mined
areas and that reclamation work be performed as an
integral part of the mining operation and be completed
within reasonable prescribed time limits, and that, in
the case of mining operations for which the Secretary
has adopted performance standards; except that in order
to encourage the reworking and reclamation of previously
mined areas, the regulations may allow reclamation to
depart from the specifications adopted by the Secretary
pursuant to subsection (b)(3)(ii) in those individual
cases where the State determines that the cost of
reclamation on a previously mined area in strict
compliance with such specifications is impracticable,
and that the environmental quality of the entire permit
area would, on balance, be clearly enhanced;
(5) the regulations allow the State agency, in
order to encourage advances in mining and reclamation
practices, to authorize departures in individual cases
on an experimental basis from the specifications
adopted by the Secretary pursuant to subsection (b)(3)
(ii) of this section, if the experimental practices are
potentially more or at least as environmentally pro-
tective, during and after mining operations, as those
required by such specifications, and if the mining
operation is no larger than necessary to determine the
effectiveness and economic feasibility of the experi-
mental practices;
(6) the regulations require posting of perfor-
mance bonds or other equally appropriate financial
arrangements, in amounts and upon conditions at all
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790 LEGAL COMPILATION—SUPPLEMENT n
times sufficient to insure the reclamation of mined
areas in the event that the regulations are not complied
with or that reclamation is not completed in accordance
with the mining and reclamation plan;
(7) the regulations provide for filing, updating,
and permanent retention of engineering maps of all active
surface and underground mining operations and of all
inactive surface and underground mining operations for
which engineering or other maps are available;
(8) the regulations provide that the responsible
State agency will identify areas or types of areas in the
State which, if mined, cannot be reclaimed with existing
techniques to satisfy applicable performance standards
adopted by the Secretary, and that the State agency will
not issue permits to mine such areas until it determines
that the technology is available to satisfy applicable
performance standards;
(9) the regulations provide that regular reports
will be made to the Secretary concerning the progress
made by the State in carrying out the purposes of this
title;
(10) the regulations require operators to make
periodic reports to the responsible State agency, show-
ing the progress of mining operations and of all
required reclamation activities, and require regular
monitoring by the State agency of environmental changes
in mined areas to assess the effectiveness of the enviro-
mental regulations for mining operations;
(11) the regulations designate a single agency,
or with the Secretary's approval, an interstate organi-
zation upon which the responsibility for administering
and enforcing the regulations is conferred by the State
or States and will insure full participation of those
agencies responsible for State land use planning and
management, air quality, water quality, and other areas
of environmental protection;
(12) the State agency or interstate organization
responsible for the administration and enforcement of
the regulations has vested in it the regulatory and other
authorities necessary to carry out the purposes of this
Act including, but not limited to, the authority to
obtain the cessation of mining operations for violation
of applicable laws and regulations adopted pursuant to
this Act;
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GUIDELINES AND REPORTS 791
(13) the regulations were developed with full
participation of all interested Federal departments
and agencies. State agencies, local governments, and
other interested bodies and groups;
(14) the regulations provide for regular review
and updating, and for public notice and an opportunity
for public participation in their revision;
(15) funding and manpower are or will be
committed to the administration and enforcement of
the regulations sufficient to carry out the purposes
of this title;
(16) the regulations are authorized by law and
will become effective no later than sixty days after
approval by the Secretary;
(17) training programs will be established, as
necessary, for persons engaged in mining operations and
in enforcement of environmental regulations;
(18) the regulations are compatible to the
maximum extent practicable with approved regulations
of adjacent States; and
(19) the regulations which are developed by the
State agency to meet or exceed performance standards
should consider in addition to relative degrees of
environmental protection, the relative costs involved;
(b) (1) In choosing among specifications or other
requirements which satisfy the performance standards in
this subsection the Secretary shall consider in addition
to the relative degrees of environmental protection, the
relative costs involved.
(2) The criteria set forth in subsection (a) of
this section shall be further elaborated by the Secretary
through guidelines which will be issued within 90 days
after enactment of this Act and revised periodically as
the Secretary deems appropriate.
(3) Within 180 days after enactment of this Act,
the Secretary shall by regulation adopt performance
standards for the reclamation of mined areas affected
by surface mining operations. Those performance
standards shall include speci fications that will ensure
(i) that mined areas will be returned, as soon as
feasible, to their original contour or to a contour
similarly appropriate considering the surrounding
topography and possible future uses of the areas; (ii)
that there is no deposition of spoil material, except
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792 LEGAL COMPILATION—SUPPLEMENT n
as necessary to the original excavation of earth in
a new mining operation, on the undisturbed or natural
surface within or adjacent to the mined area, and that
reclamation be conducted concurrently with the mining
operation; except that the State agency may allow
departures from such specifications either through a
State approved program pursuant to (a)(5) of this
section or if the operator demonstrates that such
departures will provide equal or better protection
of life, property, and environmental quality;
(iii) that throughout the mined area, soil conditions
be stabilized and water management be conducted such
that landslides are prevented, erosion is minimized,
and water pollution by siltation and by acid, highly
mineralized or toxic material drainage is minimized; and
(iv) .that the original type or similarly appropriate
type of vegetation will be re-established on the area
disturbed by the mining operations as soon after the
soil handling is completed as feasible. He shall revise
all such performance standards periodically as necessary
(4) Within 180 days after the enactment of this
Act, the Secretary shall by regulation adopt performance
standards for the reclamation of areas affected by open
pit mining, taking into consideration the unique nature
of such operations. Those performance standards should
ensure (i) that new mined areas should be returned, to
the extent feasible, to approximately their original
contour or to a contour similarly appropriate considering
the surrounding topography and possible future uses of
the area; (ii) that, to the extent feasible, there is
no permanent deposition of spoil material on undisturbed
or natural surfaces within or adjacent to the mined
area; (iii) that, throughout the permit area, soil
conditions will be stabilized and water management
conducted, such that landslides are prevented, erosion
is minimized, and pollution of water, including that in
water impoundments created by the mining operation,
by siltation and by acid, highly mineralized and toxic
material drainage is minimized; and (iv) that, to the
extent feasible, original type or similarly appropriate
type vegetation will be re-established on the disturbed
land areas. He shall revise all such performance
standards periodically as necessary.
(5) Within one year after enactment of this Act
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GUIDELINES AND REPORTS 793
the Secretary shall by regulation adopt performance
standards for reclamation of areas affected by under-
ground mining operations in order to prevent, minimize
or correct environmental harm, including standards for
minimizing subsidence and the continuing discharge of
acid, mineralized and toxic material drainage. He
shall revise all such performance standards periodically
as necessary.
(c) To advise the Secretary in developing guidelines
and performance standards under subsection (b) of this
section, there is established an Advisory Committee
composed of representatives from the Departments of
Agriculture and Commerce, the Environmental Protection
Agency, the Tennessee Valley Authority and the
Appalachian Regional Commission, the Council of State
Governments, and such other representatives as the
Secretary may designate. In order to ensure consistency
with the purposes of the Clean Air Act and the Federal
Water Pollution Control Act, the Secretary shall obtain
the concurrence of the Administrator of the Environ-
mental Protection Agency in those aspects of the guide-
lines and regulations under subsection (b) which affect
air or water quality.
(d) The Secretary shall not approve regulations
submitted by a State pursuant to this section until he
has solicited the views of Federal agencies principally
interested in such regulations. In order to ensure
consistency with the purposes of the Clean Air Act and
the Federal Water Pollution Control Act, the Secretary
shall obtain the concurrence of the Administrator of the
Environmental Protection Agency in those aspects of each
State's regulations which affect air or water quality.
The Secretary shall approve or reject the state regu-
lations within 180 days after such regulations are filed.
(e) If the Secretary approves the regulations or
revision thereof submitted to him by a State for
approval, he shall conduct a continuing review and
evaluation of the effectiveness of the regulations and
the administration and enforcement thereof. As a result
of the evaluation and review the Secretary may determine
that:
(1) the State has failed to enforce the regu-
lations adequately;
(2) the State's regulations require revision as
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794 LEGAL COMPILATION—SUPPLEMENT n
a result of experience or the guidelines on regulations
issued by the Secretary pursuant to section 201 (t>) ;
(3) the State has otherwise failed to comply with
the purposes of this Act.
Upon making such determination the Secretary shall
notify the State and suggest appropriate action,
remedies, or revisions to the regulations affording
the State an opportunity for a hearing. If within a
reasonable time, as determined by the Secretary, the
State has not taken appropriate action as determined by
the Secretary, the Secretary shall withdraw his approval
of the regulations, and issue regulations for such State
under section 202 of this title. After withdrawal of
his approval and pending the issuance of regulations
under section 202, the Secretary may administer and
enforce the State regulations. Following the issuance
of regulations under section 202 and while they are in
effect, the Secretary is authorized to administer and
enforce such regulations within such State.
Section 202. Federal Regulation of Mining Operations.
(a) If, at the expiration of two years after the
date of enactment of this Act, a State has failed to sub-
mit environmental regulations for mining operations, or
has submitted regulations which have been disapproved
and within such period has failed to submit revised
regulations for approval, the Secretary shall promptly
issue environmental regulations for mining operations
within such State. The Federal regulations issued by
the Secretary for a particular State shall meet the
requirements of the principles set forth in subsection
(a) and (b) of section 201 of this Act.
(b) Regulations under this section shall be issued
pursuant to the Federal Rule making procedures set forth
in 5 U.S.C. 553.
(c) The Secretary may from time to time revise such
regulations in accordance with the procedure prescribed
in 5 U.S.C. 553.
Section 203. Where the Secretary administers and
enforces the program for the State, or when the Secretary
administers and enforces State regulations under
Section 201 (e) of this title, he shall recover the full
cost of administering and enforcing the program through
the use of mining permit charges to be levied against
operators of mining operations within the State.
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GUIDELINES AND REPORTS 795
Section 204. Termination of Federal Regulations.
If a State submits proposed State regulations to the
Secretary after Federal regulations have been issued
pursuant to section 202 of this title, and if the
Secretary approves such regulations, such Federal regu-
lations shall cease to be applicable to the State at
such time as the State regulations become effective.
Such Federal regulations, as changed or modified by
the Secretary, shall again become effective if the
Secretary subsequently withdraws his approval of the
State regulations pursuant to subsection (e) of section
201 of this title.
Section 205. Inspections and Investigations. The
Secretary is authorized to make such inspections and
'investigations of mining operations and mined areas as
he considers necessary or appropriate to evaluate the
administration and enforcement of any State's regula-
tions, or to develop or enforce Federal regulations,
or otherwise to carry out the purposes of this Act,
and for such purposes authorized representatives of
the Secretary shall have the right of entry to any
mining operation and into any mined areas. In order to
enforce the right of entry into a specific mining
operation or mined area the Secretary may obtain a
warrant from the appropriate district court to authorize
such entry.
Section 206. Injunctions. At the request of the
Secretary, the Attorney General may institute a civil
action in a district court of the United States or a
Federal District Court of the Commonwealth of Puerto
Rico, the Virgin Islands, and Guam or the High Court of
American Samoa for an injunction or other appropriate
order (1) to prevent any operator of a mining operation
from engaging in mining operations in violation of
Federal regulations issued under section 202 of this
title or State regulations which the Secretary is
authorized to enforce under section 201 (e) of this
title; (2) to prevent an operator of a mining operation
from placing in commerce the minerals produced by a
mining operation in violation of State regulations
approved under section 201 of this title; (3) to enforce
a warrant issued under section 205 of this title; or
(4) to collect a penalty under section 207 (a) of this
title. The district court of the United States or a
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796 LEGAL COMPILATION—SUPPLEMENT n
Federal District Court of the Commonwealth of Puerto
Rico, the Virgin Islands, and Guam or the High Court
of American Samoa for the district in which such
operator of a mining operation resides or is doing
business shall have jurisdiction to issue such in-
junction or order.
Section 207. Penalties, (a) If any person fails
to comply with any regulation issued under section 202
of this title for a period of fifteen days after notice
of such failure, the Secretary may order cessation of
such person's mining operations and such person shall
be liable for a civil penalty of not more than $1000
for each day of continuance of such failure after said
fifteen days.
(b) Any person who knowingly violates any regulation
issued pursuant to section 202 of this title shall,
upon conviction, be punished by a fine not exceeding
$10,000, or by imprisonment not exceeding one year, or
both.
(c) The penalties prescribed in this section shall
be in addition to any other remedies afforded by this
title or by any other law or regulation.
Section 208. (a) Review of the Secretary's action in
(i) promulgating any standards of performance under
section 201 (b) (2), (b)(3), (b)(4), and (b)(5); and (ii)
approving or disapproving a State environmental regu-
lations and standards or revision to those under
section 201 (a); may be had by any interested person in
the Circuit Court of Appeals of the United States for
the Federal judicial district in which such person
resides or transacts such business upon application by
such person. Any such application shall be made within
90 days from the date of such determination, approval,
promulgation, issuance or denial, or after such date
only if such application is based solely on grounds
which arose after such ninetieth day.
(b) Action of the Secretary with respect to which
review could have been obtained under paragraph (a) of
this subsection shall not be subject to judicial review
in any civil or criminal proceeding for enforcement.
Section 209. Research. The Secretary is authorized
to conduct or promote research, or training programs to
carry out the purposes of this title. In so doing, the
Secretary may enter into contracts with institutions,
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GUIDELINES AND REPORTS 797
agencies, organizations, or individuals and make grants
to non-profit organizations and collect and make
available information resulting therefrom.
Section 210. Grants, (a) The Secretary is
authorized to make a grant to any State for the purpose
of assisting such State in developing, administering
and enforcing environmental regulations under this title
provided that such grants do not exceed 80% of the
program development costs incurred during the year pre-
ceding approval by the Secretary and do not exceed 60%
of the total costs incurred during the first year
following approval, 45% during the second year following
approval, 30% during the third year following approval
and 15% during the fourth year following approval, at
which time the Federal grants shall cease.
(b) The Secretary is authorized to cooperate with
and provide non-financial assistance to any State for
the purpose of assisting it in the administration and
enforcement of its regulations. Such cooperation and
assistance may include:
(1) technical assistance and training, including
provision of necessary curricular and instructional
materials, in the administration and enforcement of the
State regulations or program; or
(2) assistance in preparing and maintaining a
continuing inventory of mining operations and mined
areas in such State for the purposes of evaluating the
effectiveness of its environmental regulations for
mining operations programs and identifying current and
future needs of the State's activities under this Act.
Section 211. In extending technical assistance to
States under section 210 and in the enforcement of regu-
lations issued by the Secretary under section 202
concerning matters relating to the reclamation of areas
affected by surface mining, the Secretary may utilize
the services of the Secretary of Agriculture and the
Administrator of the Environmental Protection Agency,
and may transfer funds to cover the cost thereof.
Section 212. Any records, reports, or information
obtained under this Act shall be available to the public,
except that upon a showing satisfactory to the Secretary
by any person that records, reports, or information, or
particular part thereof, to which the Secretary has
access under this Act if made public, would divulge
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798 LEGAL COMPILATION—SUPPLEMENT n
methods or processes entitled to protection as trade
secrets of such person, the Secretary shall consider
such record, report, or information or particular
portion thereof confidential in accordance with the
purposes of section 1905 of title 18 of the United
States Code, except that such record, report, or infor-
mation may be disclosed to other officers, employees,
or authorized representatives of the United States
concerned with carrying out this Act or when relevant
in any proceeding under this Act.
Section 213. Rules and Regulations. The Secretary
is authorized to promulgate such rules and regulations
as he considers necessary to carry out the provisions of
this title.
Section 214. Authorization of Appropriations.
There is authorized to be appropriated to the Secretary
such sums as may be necessary to carry out the pro-
visions of this Act.
TITLE III
Section 301. (a) The heads of all Federal depart-
ments or agencies which have jurisdiction over land on
which mining operations are permitted are authorized to
promulgate environmental regulations to govern such
mining operations. Such department or agency heads shall
issue regulations to assure at least the same degree
of environmental protection and reclamation on lands
under their jurisdiction as is required by any law and
regulation established under an approved State program
for the State in which such land is situated. Each
Federal department and agency shall cooperate with the
Secretary and the States, to the greatest extent
practicable, in carrying out the provisions of this Act.
(b) Nothing in this Act or in any State regulations
approved pursuant to it shall be construed to conflict
with any of the following Acts or with any rule or regu-
lation promulgated thereunder:
(1) the Federal Metal and Nonmetallic Mine
Safety Act (80 Stat. 772; 30 U.S.C. 721-740);
(2) the Federal Coal Mine Health and Safety Act
of 1969 (83 Stat. 742);
(3) the Federal Water Pollution Control Act
(79 Stat. 903), as amended, the State laws enacted
pursuant thereto, or other Federal laws relating to
preservation of water quality;
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GUIDELINES AND REPORTS 799
(4) the Clean Air Act, as amended (79 Stat.
992; 42 U.S.C. 1857); and
(5) the Solid Waste Disposal Act, as amended
(79 Stat. 997; 42 U.S.C. 3251).
Section 302. Separability. If any provision of this
Act of the applicability thereof to any person or
circumstance is held invalid the remainder of this Act
and the application of such provision to other persons
or circumstances shall not be affected thereby.
433
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GUIDELINES AND REPORTS 801
Protecting
Our Natural Heritage
Endangered Species
435
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GUIDELINES AND REPORTS 803
THE SECRETARY OF THE INTERIOR
WASHINGTON
February 15, 1973
Dear Mr. [president/Speaker]:
There is enclosed a draft bill "To provide for the
conservation, protection, and propagation of species
or subspecies of fish and wildlife that are presently
threatened with extinction or likely within the fore-
seeable future to become threatened with extinction;
and for other purposes."
We recommend that this bill, a part of the en-
vironmental program announced today by President Nixon,
in his Environment and Natural Resources State of the
Union Message, be referred to the appropriate committee
for consideration, and that it be enacted.
This proposal addresses the need to identify those
species or subspecies which, though not yet threatened
with extinction, are likely within the foreseeable
future to become so threatened. We are convinced that
it is far more sound to take the steps necessary to
keep a species or subspecies from becoming endangered
than to attempt to save it after it has reached that
critical point. Therefore, the bill defines "endangered1
(Section 2(c)(l) as meaning any species or subspecies
which is either presently threatened with extinction
or likely within the foreseeable future to become
threatened with extinction. To assure protection of
all endangered species commensurate with the threat to
their continued existence, we propose to (1) remove
the current ceiling imposed by law on acquisition of
essential wildlife habitat; (2) prohibit unauthorized
import or export, taking, possession, sale, delivery,
and transport of species presently threatened with
extinction; (3) clarify authorities pertaining to
warrantless searches and forfeiture of seized property;
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804 LEGAL COMPILATION—SUPPLEMENT H
and, (4) allow importation at other than designated
ports of entry "in the interest of health or safety of
fish and wildlife."
The bill follows closely the precedent established
by the Congress in 1966 and 1967, when it enacted the
first legislation to provide protection for fish and
wildlife determined to be threatened with extinction
in the United States and abroad. This proposal retains
those provisions of the earlier Acts which laid the
foundation for this Department's effort to protect en-
dangered species and adds to them the authorities which,
as demonstrated by experience, are needed to cope with
a continuing decimation of the world's wildlife re-
sources, it provides authority for a new program to be
administered jointly by this Department and the Depart-
ment of commerce, pursuant to the allocation of res-
ponsibilities established by Reorganization Plan No. 4
of 1970.
We urge the Congress to take this further step for-
ward for the protection of our diminishing wildlife
resources. The Office of Management and Budget has ad-
vised that this legislation is in accord with the
president's program.
Sincerely yours.
/s/ Rogers C.B- Morton
Secretary of the Interior
Honorable Spiro T. Agnew
president of the Senate
Washington, D. C. 2Q510
Honorable Carl Albert
Speaker of the House of
Representatives
Washington, D. C. 20515
Enclosure
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GUIDELINES AND REPORTS 805
H.R. 4755
A BILL
To provide for the conservation, protection, and
propagation of species or subspecies of fish and wild-
life that are presently threatened with extinction or
likely within the foreseeable future to become threat-
ened with extinction; and for other purposes.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in congress
assembled. That this Act may be cited as the "En-
dangered Species conservation Act of 1973."
SEC. 2.(a) The Congress finds and declares that
one of the unfortunate consequences of growth and de-
velopment in the United States and elsewhere has been
the extermination of some species or subspecies of fish
and wildlife, that serious losses in other animals with
educational, historical, recreational, and scientific
value have occurred and are occurring; that the United
States has pledged itself, pursuant to migratory bird
treaties with Canada and Mexico, the migratory and en-
dangered bird treaty with Japan, the Convention on
Nature protection and wildlife Preservation in the
Western Hemisphere, and other international agreements
to conserve and protect, where practicable, the various
species or subspecies of fish and wildlife, including
game and nongame migratory birds, that are presently
threatened with extinction; and that the conservation,
protection, restoration, and propagation of such
species or subspecies will inure to the benefit of all
citizens. The purposes of this Act are to provide a
program for the conservation, protection, restoration,
and propagation of selected species or subspecies of
fish and wildlife, including migratory birds, that are
presently threatened with extinction, or are likely
within the foreseeable future to become threatened with
extinction.
(b) it is further declared to be the policy of
Congress that all Federal departments and agencies shall
seek to protect species or subspecies of fish and wild-
life, including migratory birds, that are presently
threatened with extinction or are likely within the
foreseeable future to become threatened with extinc-
tion, and, insofar as is practicable and consistent
with the primary purposes of such bureaus, agencies and
439
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806 LEGAL COMPILATION—SUPPLEMENT n
services, shall utilize their authorities in further-
ance of the purpose of this Act.
(c)(1) A species or subspecies of fish or wildlife
shall be regarded as an endangered species whenever, in
his discretion, the secretary determines, based on the
best scientific and commercial data available to him
and after consultation, as appropriate, with the
affected States, and, in cooperation with the Secretary
of State, the country or countries in which such fish
and wildlife are normally found or whose citizens har-
vest the same on the high seas, and to the extent
practicable, with interested persons and organizations,
and other interested Federal agencies, that the con-
tinued existence of such species or subspecies of fish
or wildlife, in the judgment of the Secretary, is
either presently threatened with extinction or will
likely within the foreseeable future become threatened
with extinction, throughout all or a significant por-
tion of its range, due to any of the following factors;
(i) the destruction, drastic modification, or severe
curtailment or the threatened destruction, drastic modi-
fication, or severe curtailment of its habitat; or (ii)
its overutilization for commercial, sporting, scientific,
or educational purposes; or (iii) the effect on it of
disease or predation; or (iv) the inadequacy of
existing regulatory mechanisms; or (v) other natural
or man-made factors affecting its continued existence.
(2) After making such determination, the Secretary
shall publish in the Federal Register, and from time to
time he may revise, by regulation, a list, by scientific
and common name of such endangered species, indicating
as to each species or subspecies so listed whether such
species or subspecies is presently threatened with ex-
tinction or likely with the foreseeable future to be-
come threatened with extinction and, in either case,
over what portion of the range of such species this
condition exists. The endangered species lists which
are effective as of the date of enactment shall be
republished to conform to the classification of en-
dangered species provided for in this Act: Provided,
however, That until such republication such an endan-
gered species already listed shall be considered an
endangered species presently threatened with extinction
pursuant to this Act. An endangered species which is
440
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GUIDELINES AND REPORTS 807
to be repub.lished as a species presently threatened
with extinction shall not require public hearing or
comment under the provisions of section 553 of title 5,
United States Code. Such provisions shall apply to any
other regulation issued under this subsection. The
Secretary shall, upon the petition of an interested
person under subsection 553 (e) of title 5, United States
Code, also conduct a review of any listed or unlisted
species or subspecies of fish and wildlife proposed to
be removed from, added to, or reclassified within the
list, but only when he finds and publishes his finding
that, to his satisfaction, such person has presented
substantial evidence to warrant such a review.
(d) For the purposes of this Act, the term—
(1) "fish and/or wildlife" means any wild
animal, whether or not raised in captivity, including
with limitation, any mammal, fish, bird, amphibian,
reptile, mollusk, or crustacean; including any part,
product, egg, or offspring thereof; or the dead body or
parts thereof;
(2) "United States" or "State" means the several
States of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, American Samoa, the
Virgin islands, and Guam;
(3) "Person" includes any individual, firm,
corporation, association, partnership, or private en-
tity;
(4) "take" means to pursue, hunt, shoot,
wound, kill, trap, capture or collect, or attempt to
pursue, hunt, shoot, wound, kill, trap, capture or
collect;
(5) "Secretary" means the Secretary of the
interior or the Secretary of commerce as program res-
ponsibilities are vested pursuant to the provisions of
Reorganization Plan Number 4 of 1970;
(6) "import" means to land on, bring into, or
introduce into, or attempt to land on, bring into, or
introduce into any place subject to the jurisdiction of
the United States, whether or not such landing,
bringing or introduction constitutes an importation
within the meaning of the tariff laws of the United
States;
(7) "foreign commerce" includes, among other
things, any transaction (1) between persons within one
441
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808 LEGAL COMPILATION—SUPPLEMENT H
foreign country, or (2) between persons in two or more
foreign countries, or (3) between a person within the
United states and a person in a foreign country, or (4)
between persons within the united States, where the
fish or wildlife in question are moving in any country
or countries outside the United states„
SEC. 3. (a) The Secretary shall utilize the land
acquisition and other authorities of the Migratory Bird
Conservation Act (45 Stat. 1433), as amended (16 U^SoC.
715d-3), the Fish and wildlife Act of 1956 (70 Stat.
1122), as amended (16 U.S.C. 742f}, and the Fish and
Wildlife Coordination Act (72 Stat. 566; 16 U.S.C. 663),
as appropriate, to carry out a program in the United
States of conserving, protecting, restoring, and propa-
gating those species and subspecies of fish and wild-
life that he lists as endangered species pursuant to
section 2 of this Act.
(b) in addition to the land acquisition author-
ities otherwise available to him, the secretary is
hereby authorized to acquire by purchase, donation, or
otherwise, land and water, or interests therein needed
to carry out the purpose of this Act relating to the
conservation, protection, restoration, and propagation
of those species or subspecies of fish and wildlife
that he lists as endangered species pursuant to sec-
tion 2 of this Act.
(c) Funds made available pursuant to the Land and
Water conservation Fund Act of 1965 (78 Stat. 897), as
amended (16 U.S.C. 460), may be used for the purpose of
acquiring land and water, or interests therein that are
needed for the purpose of conserving, protecting, re-
storing, and propagating those species or subspecies of
fish and wildlife, including migratory birds, that he
lists as endangered species pursuant to section 2 of
this Act.
(d) The Secretary shall review other programs ad-
ministered by him and utilize such programs in further-
ance of the purpose of this Act. All other Federal
departments and agencies shall, in consultation with
and with the assistance of the Secretary, utilize their
authorities in furtherance of the purpose of this Act
by carrying out programs for the protection of en-
dangered species or subspecies of fish and wildlife
and by taking such action necessary to insure that
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GUIDELINES AND REPORTS 809
actions authorized, funded, or carried out by them do
not jeopardize the continued existence of endangered
species.
SEC. 4. (a) Notwithstanding any other Act of
Congress or regulation issued pursuant thereto, and ex-
cept as authorized by this Act, it is unlawful for any
person subject to the jurisdiction of the United States
to:
(1) import into or export from the United
States; or
(2) (A) take within the United States, the
territorial sea of the United States, or
upon the high seas; or
(B) when so unlawfully taken, to possess,
sell, deliver, carry, transport, or ship,
by any means whatsoever; or
(3) deliver, receive, carry, transport or ship
in interstate or foreign commerce, by any
means whatsoever, for commercial purposes;
or
(4) sell or offer for sale in interstate or
foreign commerce any species or subspecies
of fish and wildlife which the Secretary
has listed as an endangered species
presently threatened with extinction
pursuant to section 2 of this Act.
(b) Whenever the Secretary, pursuant to section 2
of this Act, lists a species or subspecies as an en-
dangered species which is likely within the foreseeable
future to become threatened with extinction he shall
issue such regulations as he deems necessary and ad-
visable to provide for the conservation, protection,
restoration, and propagation of such species or sub-
species, including regulations making unlawful any of
the acts specified by this section.
(c) it is unlawful for any person subject to the
jurisdiction of the United States to import into the
United states any fish and wildlife, other than shell-
fish and fishery products imported for commercial pur-
poses or taken in waters under the jurisdiction of the
United states or on the high seas for recreational
purposes, except at a port or ports designated by the
Secretary. Any port or ports which have been designated
by the Secretary by regulation under the authority of
443
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810 LEGAL COMPILATION—SUPPLEMENT n
the Act of December 5, 1969 (83 Stat. 276; 16 U-S.C.
668cc-4(d)), and are in effect on the date of enact-
ment shall remain effective under the authority of
this Act unless modified by the Secretary. For the
purpose of facilitating enforcement of this Act and
reducing the costs thereof, the Secretary, with the
approval of the Secretary of the Treasury and after
notice and opportunity for public hearing, may, by
regulation, designate ports and alter such designa-
tions. The Secretary, under such terms and conditions
as he may prescribe, may permit the importation at non-
designated ports in the interest of the health or
safety of the fish and wildlife, or for other reasons,
if in his discretion, he deems it appropriate and con-
sistent with the purpose of this subsection.
(d) it is unlawful for any person subject to the
jurisdiction of the United States to attempt or con-
spire to commit, or to cause to be committed, any
offense defined in this section.
(e) Any State law or regulation is void to the ex-
tent that it would effectively permit or prohibit im-
ports, exports, or transactions in interstate or for-
eign commerce in a manner inconsistent with subsection
(a) hereof, or regulations issued under authority of
subsection (b) hereof. This Act shall not otherwise be
construed to void any State law or regulation which is
intended to conserve and manage migratory, resident, or
introduced fish or wildlife, or to permit or prohibit
sale of such fish and wildlife: provided, however. That
any State law or regulation respecting the taking of an
endangered species listed pursuant to section 2 of this
Act which is less restrictive than the prohibitions
provided by this Act shall be void to the extent that
such state law or regulations is so less restrictive.
SEC.5. (a) The secretary may permit, under such
terms and conditions as he may prescribe, any act
otherwise prohibited by or pursuant to section 4 of
this Act when he determines, to his satisfaction, that
such act will be undertaken for zoological, educational,
or scientific purposes, or to enhance the survival of
such fish and wildlife, but only if he finds that such
act will not adversely affect the survival of the wild
population or the reproductive capacity of the species
or subspecies concerned.
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GUIDELINES AND REPORTS 811
(b) in order to minimi»e undue economic hardship
to any person who proposes to commit an act prohibited
by subsection 4 (a) of this Act under any contract
entered into prior to the date of publication in the
Federal Register of notice of a proposed listing of an
endangered species presently threatened with extinction,
the Secretary, upon such person filing an application
with him and upon filing such information as the secre-
tary may require showing to his satisfaction, such
hardship, may exempt such person from applicability of
subsection 4 (a); Provided, however. That no such ex-
emption shall be for a duration of more than one year
from the date of publication in the Federal Register of
notice of a proposed listing of the affected species or
in the quantities which exceed those specified by the
Secretary; and provided further, That the one year
period for those species or subspecies of fish and wild-
life listed by the Secretary as endangered prior to the
effective date of this Act shall expire in accordance
with the terms of Section 3 of the Act of December 5,
1969 (83 Stat. 275).
(c) The prohibitions contained in subparagraph
4(a)(2) of this Act respecting the taking within a
State or its territorial sea, as well as analogous
regulations which may be issued pursuant to the au-
thority provided in subsection 4(b) of this Act, may
be suspended by the Secretary in any State which has
entered into and, in the judgment of the Secretary,
satisfactorily carries out an active program to manage
and protect endangered species. The Secretary's
determination that such a suspension is warranted shall
include a finding that state laws and regulations are
framed and enforced in a manner consistent with, and no
less stringent than, the prohibition and exceptions of
this Act. said suspension shall take effect by notice
published in the Federal Register, and it may be re-
voked whenever the Secretary finds either that the
program to manage and protect such endangered species
is not being satisfactorily carried out, or that State
laws or regulations, or the enforcement thereof, permit
acts prohibited by this Act and the exceptions thereto.
SEC. 6. (a)(1) Any person who violates any provi-
sion of this Act or of any regulation or permit issued
hereunder may be assessed a civil penalty by the
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812 LEGAL COMPILATION—SUPPLEMENT n
Secretary of not more than $10,000 for each such viola-
tion. No such penalty shall be assessed unless such
person is given notice and opportunity for a hearing
with respect to such violation. Each violation shall
be a separate offense. Any such civil penalty may be
compromised by the Secretary. Upon any failure to
pay a penalty assessed under this subsection, the
Secretary may request the Attorney General to in-
stitute a civil action in a district court of the
United States for any district in which such person is
found, resides, or transacts business to collect the
penalty and such court shall have jurisdiction to hear
and decide any such action. The court shall hear such
action solely on the record made before the Secretary
and shall sustain his action if it is supported by
substantial evidence on the record considered as a
whole.
(2) Hearings held during proceedings for the assess-
ment of civil penalties authorized by paragraph (1) of
this subsection shall be conducted in accordance with
section 554 of title 5, United States Code. The Secre-
tary may issue subpoenas for the attendance and testi-
mony of witnesses and the production of relevant
papers, books, and documents, and administer oaths.
Witnesses summoned shall be paid the same fees and
mileage that are paid to witnesses in the courts of the
United States. in case of contumacy or refusal to
obey a subpoena served upon any person pursuant to this
paragraph, the district court of the United States for
any district in which such person is found or resides
or transacts business, upon application by the United
States and after notice to such person, shall have
jurisdiction to issue an order requiring such person to
appea - and give testimony before the Secretary or to
app^ r and produce documents before the Secretary, or
both, and any failure to obey such order of the court
may be punished by such court as a contempt thereof.
(3) The head of any Federal agency which has issued
a lease, license, permit, or other agreement authorizing
the grazing of domestic livestock on Federal lands, to
any person who is convicted of a criminal violation of
this Act or any regulation or permit issued hereunder
may immediately modify, suspend or revoke each lease,
license, permit or other agreement. The Secretary
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GUIDELINES AND REPORTS 813
shall also suspend for a period of up to one year, or
cancel any Federal hunting or fishing permits or stamps
issued to any person who is convicted or a criminal
violation of this Act or any regulation or permit
issued hereunder. The United States shall not be liable
for the payments of any compensation, reimbursement, or
damages in connection with the modification, suspension
or revocation of any leases, licenses, permits, stamps,
or other agreements pursuant to this section.
(b) Any person who knowingly commits an act which is
declared unlawful by this Act, or any regulation or per-
mit issued hereunder, shall, upon conviction, be fined
not more than $20,000 or imprisoned for not more than
one year, or both.
(c) The several District Courts of the United States,
including the courts enumerated in 28 United States
Code 460, shall have jurisdiction over any actions
arising under this Act. For the purpose of this Act,
American Samoa shall be included within the Judicial
district of the District Court of the United States for
the District of Hawaii.
(d)(1) The provisions of this Act and any regula-
tions or permits issued pursuant thereto shall be en-
forced by the Secretary, the Secretary of the Treasury,
or the Secretary of the Department in which the Coast
Guard is operating, or all such Secretaries. Each such
Secretary may utilize, by agreement, with or without
reimbursement, the personnel, services, and facilities
of any other Federal agency or any State agency for
purposes of enforcing this Act.
(2) The judges of the district courts of the
United States and the United States magistrates may,
within their respective jurisdictions, upon proper oath
or affirmation showing probable cause, issue such
warrants or other process as may be required for en-
forcement of this Act and any regulation issued there-
under.
(3) Any person authorized by the Secretary, the
Secretary of the Treasury, or the Secretary of the
Department in which the Coast Guard is operating, to
enforce this Act may execute and serve any arrest
warrant, search warrant, or other warrant or civil or
criminal process issued by any officer or court of
competent jurisdiction for enforcement of this Act.
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814 LEGAL COMPILATION—SUPPLEMENT n
Such person so authorized may search and seize, with or
without a warrant, as authorized by law.
(4) All fish and wildlife taken, possessed, sold,
purchased, offered for sale or purchase, transported,
delivered, received, carried, shipped, exported or
imported contrary to the provisions of this Act, any
regulation made pursuant thereto or any permit issued
thereunder, and all guns, traps, nets and other equip-
ment, vessels, vehicles, aircraft and other means of
transportation used to aid the taking, possessing,
selling, purchasing, offering for sale or purchase,
transporting, delivering, receiving, carrying, shipping,
exporting or importing of any fish and wildlife in vio-
lation of this Act, any regulation made pursuant thereto
or any permit issued thereunder shall be subject to for-
feiture to the United States.
(5) All provisions of law relating to the seizure,
forfeiture, and condemnation of a vessel for violation
of the customs laws, the disposition of such vessel or
the proceeds from the sale thereof, and the remission
or mitigation of such forfeiture, shall apply to the
seizures and forfeitures incurred, or alleged to have
been incurred, under the provisions of this Act, inso-
far as such provisions of law are applicable and not
inconsistent with the provisions of this Act: Provided,
that all powers, rights, and duties conferred or im-
posed by the customs laws upon any officer or employee
of the Treasury Department shall, for the purposes of
this Act, be exercised or performed by the Secretary or
by such persons as he may designate.
(e) The Secretary may require any person importing
or exporting fish and wildlife, other than shellfish
and fishery products imported for commercial purposes
or taken in waters under the jurisdiction of the
United States or on the high seas for recreational
purposes, to file a declaration with him stating such
information as he deems necessary to facilitate en-
forcement of this Act.
(f) The Secretary, the Secretary of the Treasury
and the Secretary of the Department in which the Coast
Guard is operating, are authorized to promulgate such
regulations as may be appropriate to carry out the
purposes of this Act, and charge reasonable fees for
expenses to the Government connected with permits
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GUIDELINES AND REPORTS 815
authorized by this Act, including processing applica-
tions and reasonable inspections, and with the transfer,
board, handling, or storage of fish and wildlife and
evidentiary items seized and forfeited under this Act.
All such fees collected pursuant to this subsection
shall be deposited in the Treasury to the credit of the
appropriation which is current and chargeable for the
cost of furnishing the services. Appropriated funds may
be expended pending reimbursement from parties in inter-
est.
SEC. 7. (a) in order to carry out the provisions of
this Act, the Secretary, through the Secretary of State,
shall encourage foreign countries to provide for the pro-
tection, conservation and propagation of fish and wild-
life, including those species listed as endangered pur-
suant to section 2 of this Act, and shall encourage bi-
lateral and multilateral agreements with such countries
for the protection, conservation, and propagation of
fish and wildlife. The Secretary shall also encourage
persons, taking directly or indirectly fish and wildlife
in foreign countries or on the high seas for importation
into the United states for commercial or other purposes,
to develop and carry out, with such assistance as he may
provide, conservation practices designed to enhance such
fish and wildlife and their habitat. After consultation
with the Secretary of State, the Secretary is authorized
to assign or otherwise make available any officer or em-
ployee of his department for the purpose of cooperating
with foreign countries and international organizations
in developing personnel resources and programs which
promote the protection, conservation and propagation of
fish and wildlife. He is authorized to conduct or pro-
vide financial assistance for educational training of
foreign personnel, in this country or abroad, in the
subjects of fish and wildlife management, research, and
law enforcement and to render professional assistance
abroad in such matters. After consultation with the
Secretary of state and the Secretary of the Treasury, as
appropriate, the Secretary is authorized to conduct or
cause to be conducted such law enforcement investigations
and research abroad as he deems necessary to carry out
the purposes of this Act.
(b) The secretary of Agriculture and the Secre-
tary shall provide for appropriate coordination of the
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816 LEGAL COMPILATION—SUPPLEMENT n
administration of this Act and amendments made by this
Act, with the administration of the animal quarantine
laws (19 U.S.C. 1306; 21 U.S.C. 101-105, lll-135b, and
612-614) and the Tariff Act of 1930, as amended (sec.
1306 of title 19). Nothing in this Act or any amend-
ment made by this Act, shall be construed as super-
seding or limiting in any manner the functions of the
Secretary of Agriculture under any other law relating
to prohibited or restricted importations or possession
of animals and other articles and no proceeding or
determination under this Act shall preclude any pro-
ceeding or be considered determinative of any issue of
fact or law in any proceeding under any Act administered
by the Secretary of Agriculture.
(c) Nothing in this Act, or any amendment made by
this Act, shall be construed as superseding or limiting
in any manner the functions and responsibilities of the
Secretary of the Treasury under the Tariff Act of 1930,
as amended, including, without limitation, section 1527
of title 19, United states Code, relating to the im-
portation of wildlife taken, killed, possessed, or ex-
ported to the United States in violation of the laws or
regulations of a foreign country.
SEC. 8. (a) In carrying out the program authorized
by this Act, the Secretary shall cooperate to the
maximum extent practicable with the several states.
Such cooperation may include consultation before the
acquisition of any land and water, or interest therein,
for the purpose of conserving, protecting, restoring,
or propagating any endangered species.
(b) The Secretary may enter into agreements with
the States for the administration and management of any
area established for the conservation, protection,
restoration, and propagation of endangered species.
Any revenues derived from the administration of such
areas under these agreements shall be subject to the
provisions of section 401 of the Act of June 15, 1935
(49 stat. 383), as amended (16 U.S.C. 715s).
SEC. 9. (a) Subsection 4(c) of the Act of Octo-
ber 15, 1966 (80 Stat. 928), as amended (16 u.S-C=
668dd(c)), is further amended by revising the second
sentence thereof to read as follows: "With the ex-
ception of endangered species listed by the Secretary
pursuant to section 2 of the Endangered Species
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GUIDELINES AND REPORTS 817
Conservation Act of 1973, nothing in this Act shall be
construed to authorize the Secretary to control or
regulate hunting or fishing or resident fish and wild-
life on lands not within the system."
(b) Subsection 10 (a) of the Migratory Bird Conser-
vation Act (45 Stat. 1224), as amended (16 U-S.C.
715i(a)), is further amended by inserting "or likely
within the foreseeable future to become threatened with"
between the words "with" and "extinction".
(c) Subsection 401(a) of the Act of June 15, 1935
(49 Stat. 383), as amended (16 U.S-C. 715s(a)), is fur-
ther amended by inserting "or likely within the fore-
seeable future to become threatened with" between the
words "with" and "extinction" in the last sentence
thereof.
(d) Subsection 6(a)(l) of the Land and Water Con-
servation Fund Act of 1965 (78 Stat. 903), as amended
(16 u.S.C. 460-1-9(a) (1)), is further amended by in-
serting "or likely within the foreseeable future to
become threatened with" between the words "with" and
"extinction".
SEC. 10. (a) Sections 1 through 3 of the Act of
October 15, 1966 (80 Stat. 926, 927), as amended (16
U.S.C. 668aa-668cc) are hereby repealed in their en-
tirety.
(b) Sections 1 through 6 of the Act of December 5,
1969 (83 Stat. 275-279; 16 U.S.C. 668cc-l through
668c-6) are hereby repealed in their entirety.
SEC. 11. There are hereby authorized to be appro-
priated such sums as may be necessary to carry out the
purposes of this Act.
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818 LEGAL COMPILATION—SUPPLEMENT n
CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES
OF WILD FAUNA AND FLORA
The Contracting States,
RECOGNIZING that wild fauna and flora in their many
beautiful and varied forms are an irreplaceable part of
the natural systems of the earth which must be protected
for this and the generations to come;
CONSCIOUS of the ever-growing value of wild fauna
and flora from aesthetic, scientific, cultural, recrea-
tional and economic points of view;
RECOGNIZING that peoples and States are and should
be the best protectors of their own wild fauna and
flora;
RECOGNIZING, in addition, that international cooper-
ation is essential for the protection of certain species
of wild fauna and flora against over-exploitation through
international trade;
CONVINCED of the urgency of taking appropriate mea-
sures to this end;
HAVE AGREED as follows:
ARTICLE I
Definitions
For the purpose of the present Convention, unless the
context otherwise requires:
(a) "Species" means any species, subspecies, or
geographically separate population thereof;
(b) ''Specimen" means:
(i) any animal or plant, whether alive or dead;
(ii) in the case of an animal: for species
included in Appendices I and II, any
readily recognizable part or derivative
thereof; and for species included in
Appendix III, any readily recognizable
part or derivative thereof specified in
Appendix III in relation to the species;
and
(iii) in the case of a plant: for species in-
cluded in Appendix I, any readily recog-
nizable part or derivative thereof; and
for species included in Appendices II and
III, any readily recognizable part or
derivative thereof specified in Appendices
II and III in relation to the species;
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GUIDELINES AND REPORTS 819
(c) "Trade" means export, re-export, import and
introduction from the sea;
(d^ "Re-export'1 means export of any specimen that
has previously been imported;
(e) "Introduction from the sea" means transportation
into a State of specimens of any species which were
taken in the marine environment not under the jurisdic-
tion of any State;
(f) "Scientific Authority" means a national scien-
tific authority designated in accordance with Article IX;
(g) "Management Authority" means a national manage-
ment authority designated in accordance with Article IX;
(h) "Party" means a State for which the present
Convention has entered into force.
ARTICLE II
Fundamental Principles
1. Appendix I shall include all species threatened with
extinction which are or may be affected by trade. Trade
in specimens of these species must be subject to particu-
larly strict regulation in order not to endanger further
their survival and must only be authorized in exceptional
circumstances.
2. Appendix II shall include:
(a) all species which although not necessarily now
threatened with with extinction may become so unless
trade in specimens of such species is subject to strict
regulation in order to avoid utilization incompatible
with their survival; and
(b) other species which must be subject to regulation
in order that trade in specimens of certain species
referred to in sub-paragraph (a) of this paragraph may be
brought under effective control.
3, Appendix in shall include all species which any
Party identifies as being subject to regulation within
its jurisdiction for the purpose of preventing or
restricting exploitation, and as needing the cooperation
of other parties in the control of trade.
4. The Parties shall not allow trade in specimens of
species included in Appendices I, II and III except in
accordance with the provisions of the present Convention.
ARTICLE III
Regulation of Trade in Specimens
of Species included in Appendix I
1. All trade in specimens of species included in
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820 LEGAL COMPILATION—SUPPLEMENT 11
Appendix I shall be in accordance with the provisions of
this Article.
2. The export of any specimen of a species included in
Appendix I shall require the prior grant and presentation
of an export permit. An export permit shall only be
granted when the following conditions have been met:
(a) a Scientific Authority of the State of export has
advised that such export will not be detrimental to the
survival of that species;
(b) a Management Authority of the State of export is
satisfied that the specimen was not obtained in contra-
vention of the laws of that State for the protection of
fauna and flora;
(c) a Management Authority of the State of export is
satisfied that any living specimen will be so prepared
and shipped as to minimize the risk of injury, damage to
health or cruel treatment; and
(d) a Management Authority of the State of export is
satisfied that an import permit has been granted for the
specimen.
3. The import of any specimen of a species included in
Appendix I shall require the prior grant and presentation
of an import permit and either an export permit or a
re-export certificate. An import permit shall only be
granted when the following conditions have been met:
(a) a Scientific Authority of the State of import
has advised that the import will be for purposes which
are not detrimental to the survival of the species
involved;
(b) a Scientific Authority of the State of import is
satisfied that the proposed recipient of a living speci-
men is suitably equipped to house and care for it; and
(c) a Management Authority of the State of import is
satisfied that the specimen is not to be used for
primarily commercial purposes.
4. The re-export of any specimen of a species included
in Appendix I shall require the prior grant and presenta-
tion of a re-export certificate. A re-export certificate
shall only be granted when the following conditions have
been met:
(a) a Management Authority of the State of re-export
is satisfied that the specimen was imported into that
State in accordance with the provisions of the present
Convention;
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GUIDELINES AND REPORTS 821
(b) a Management Authority of the State of re-export
is satisfied that any living specimen will be so prepared
and shipped as to minimize the risk of injury, damage to
health or cruel treatment; and
(c) a Management Authority of the State of re-export
is satisfied that an import permit has been granted for
any living specimen.
5. The introduction from the sea of any specimen of a
species included in Appendix I shall require the prior
grant of a certificate from a Management Authority of the
State of introduction. A certificate shall only be
granted when the following conditions have been met:
(a) a Scientific Authority of the State of introduc-
tion advises that the introduction will not be detri-
mental to the survival of the species involved;
(b) a Management Authority of the State of introduc-
tion is satisfied that the proposed recipient of a living
specimen is suitably equipped to house and care for it;
and
(c) a Management Authority of the State of introduc-
tion is satisfied that the specimen is not to be used for
primarily commercial purposes.
ARTICLE IV
Regulation of Trade in Specimens
of Species included in Appendix II
1. All trade in specimens of species included in Appen-
dix II shall be in accordance with the provisions of this
Article.
2. The export of any specimen of a species included in
Appendix II shall require the prior grant and presenta-
tion of an export permit. An export permit shall only
be granted when the following conditions have been met;
(a) a Scientific Authority of the State of export has
advised that such export will not be detrimental to the
survival of that species;
(b) a Management Authority of the State of export is
satisfied that the specimen was not obtained in contra-
vention of the laws of that State for the protection of
fauna and flora; and
(c) a Management Authority of the State of export is
satisfied that any living specimen will be so prepared
and shipped as to minimize the risk of injury, damage to
health or cruel treatment.
3. A Scientific Authority in each Party shall monitor
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822 LEGAL COMPILATION—SUPPLEMENT n
both the export permits granted by that State for speci-
mens of species included in Appendix II and the actual
exports of such specimens. Whenever a Scientific
Authority determines that the export of specimens of any
such species should be limited in order to maintain that
species throughout its range at a level consistent with
its role in the ecosystems in which it occurs and well
above the level at which that species might become eli-
gible for inclusion in Appendix I, the Scientific
Authority shall advise the appropriate Management
Authority of suitable measures to be taken to limit the
grant of export permits for specimens of that species.
4. The import of any specimen of a species included in
Appendix II shall require the prior presentation of
either an export permit or a re-export certificate.
5. The re-export of any specimen of a species included
in Appendix II shall require the prior grant and presen-
tation of a re-export certificate. A re-export certifi-
cate shall only be granted when the following conditions
have been met:
(a) a Management Authority of the State of re-export
is satisfied that the specimen was imported into that
State in accordance with the provisions of the present
Convention; and
(b) a Management Authority of the State of re-export
is satisfied that any living specimen will be so prepared
and shipped as to minimize the risk of injury, damage to
health or cruel treatment.
6. The introduction from the sea of any specimen of a
species included in Appendix II shall require the prior
grant of a certificate from a Management Authority of
the State of introduction. A certificate shall only be
granted when the following conditions have been met:
(a) a Scientific Authority of the State of introduc-
tion advises that the introduction will not be detri-
mental to the survival of the species involved; and
(b) a Management Authority of the State of introduc-
tion is satisfied that any living specimen will be so
handled as to minimize the risk of injury, damage to
health or cruel treatment.
7. Certificates referred to in paragraph 6 of this
Article may be granted on the advice of a Scientific
Authority, in consultation with other national scientific
authorities or, when appropriate, international
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GUIDELINES AND REPORTS 823
scientific authorities, in respect of periods not exceed-
ing one year for total numbers of specimens to be intro-
duced in such periods.
ARTICLE V
Regulation of Trade in Specimens
of Species included in Appendix III
1. All trade in specimens of species included in Appen-
dix III shall be in accordance with the provisions of
this Article.
2. The export of any specimen of a species included in
Appendix III from any State which has included that
species in Appendix III shall require the prior grant
and presentation of an export permit. An export permit
shall only be granted when the following conditions have
been met:
(a) a Management Authority of the State of export is
satisfied that the specimen was not obtained in contra-
vention of the laws of that State for the protection of
fauna and flora; and
(b) a Management Authority of the State of export is
satisfied that any living specimen will be so prepared
and shipped as to minimize the risk of injury, damage to
health or cruel treatment.
3. The import of any specimen of a species included in
Appendix III shall require, except in circumstances to
which paragraph 4 of this Article applies, the prior
presentation of a certificate of origin and, where the
import is from a State which has included that species
in Appendix III, an export permit.
4. In the case of re-export, a certificate granted by
the Management Authority of the State of re-export that
the specimen was processed in that State or is being re-
exported shall be accepted by the State of import as
evidence that the provisions of the present Convention
have been complied with in respect of the specimen
concerned.
ARTICLE VI
Permits and Certificates
1. Permits and certificates granted under the provi-
sions of Articles III, IV, and V shall be in accordance
with the provisions of this Article.
2. An export permit shall contain the information speci-
fied in the model set forth in Appendix IV, and may only
be used for export within a period of six months from
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824 LEGAL COMPILATION—SUPPLEMENT n
the date on which it was granted.
3. Each permit or certificate shall contain the title
of the present Convention, the name and any identifying
stamp of the Management Authority granting it and a
control number assigned by the Management Authority.
4. Any copies of a permit or certificate issued by a
Management Authority shall be clearly marked as copies
only and no such copy may be used in place of the origi-
nal, except to the extent endorsed thereon.
5. A separate permit or certificate shall be required
for each consignment of specimens.
6. A Management Authority of the State of import of any
specimen shall cancel and retain the export permit or
re-export certificate and any corresponding import permit
presented in respect of the import of that specimen.
7. Where appropriate and feasible a Management Authority
may affix a mark upon any specimen to assist in identi-
fying the specimen. For these purposes "mark" means any
indelible imprint, lead seal or other suitable means of
identifying a specimen, designed in such a way as to
render its imitation by unauthorized persons as diffi-
cult as possible.
ARTICLE VII
Exemptions and Other Special Provisions Relating to Trade
1. The provisions of Articles III, IV and V shall not
apply to the transit or trans-shipment of specimens
through or in the territory of a Party while the speci-
mens remain in Customs control.
2. Where a Management Authority of the State of export
or re-export is satisfied that a specimen was acquired
before the provisions of the present Convention applied
to that specimen, the provisions of Articles III, IV and
V shall not apply to that specimen where the Management
Authority issues a certificate to that effect.
3. The provisions of Articles III, IV and V shall not
apply to specimens that are personal or household
effects. This exemption shall not apply where:
(a) in the case of specimens of a species included
in Appendix I, they were acquired by the owner
outside his State of usual residence, and are
being imported into that State; or
(bl in the case of specimens of species included in
Appendix II:
(i) they were acquired by the owner outside
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GUIDELINES AND REPORTS 825
his State of usual residence and in a
State where removal from the wild
occurred;
(ii) they are being imported into the owner's
State of usual residence; and
(iii) the State where removal from the wild
occurred requires the prior grant of
export permits before any export of such
specimens;
unless a Management Authority is satisfied that the
specimens were acquired before the provisions of the
present Convention applied to such specimens.
4. Specimens of an animal species included in Appendix
I bred in captivity for commercial purposes, or of a
plant species included in Appendix I artificially propa-
gated for commercial purposes, shall be deemed to be
specimens of species included in Appendix II.
5. Where a Management Authority of the State of export
is satisfied that any specimen of an animal species was
bred in captivity or any specimen of a plant species was
artificially propagated, or is a part of such an animal
or plant or was derived therefrom, a certificate by that
Management Authority to that effect shall be accepted in
lieu of any of the permits or certificates required under
the provisions of Articles III, IV or V.
6. The provisions of Articles III, IV and V shall not
apply to the non-commercial loan, donation or exchange
between scientists or scientific institutions registered
by a Management Authority of their State, of herbarium
specimens, other preserved, dried or embedded museum
specimens, and live plant material which carry a label
issued or approved by a Management Authority.
7. A Management Authority of any State may waive the
requirements of Articles III, IV and V and allow the
movement without permits or certificates of specimens
which form part of a travelling zoo, circus, menagerie,
plant exhibition or other travelling exhibition provided
that:
(a) the exporter or importer registers full details
of such specimens with that Management Authority;
(b^ the specimens are in either of the categories
specified in paragraphs 2 or 5 of this Article; and
(c) the Management Authority is satisfied that any
living specimen will be so transported and cared for as
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826 LEGAL COMPILATION—SUPPLEMENT n
to minimize the risk of injury, damage to health or
cruel treatment.
ARTICLE VIII
Measures to be Taken by the Parties
1. The Parties shall take appropriate measures to
enforce the provisions of the present Convention and to
•prohibit trade in specimens in violation thereof. These
shall include measures:
(a) to penalize trade in, or possession of, such
specimens, or both; and
(b) to provide for the confiscation or return to the
State of'export of such specimens.
2. In addition to the measures taken under paragraph 1
of this Article, a Party may, when it deems it necessary,
provide for any method of internal reimbursement for
expenses incurred as a result of the confiscation of a
specimen traded in violation of the measures taken in the
application of the provisions of the present Convention.
3. As far as possible, the Parties shall ensure that
specimens shall pass through any formalities required
for trade with a minimum of delay. To facilitate such
passage, a Party may designate ports of exit and ports
of entry at which specimens must be presented for clear-
ance. The Parties shall ensure further that all living
specimens, during any period of transit, holding or ship-
ment, are properly cared for so as to minimize the risk
of injury, damage to health or cruel treatment.
4. Where a living specimen is confiscated as a result
of measures referred to in paragraph 1 of this Article:
(a) the specimen shall be entrusted to a Management
Authority of the State of confiscation;
(b) the Management Authority shall, after consulta-
tion with the State of export, return the specimen to
that State at the expense of that State, or to a rescue
centre or such other place as the Management Authority
deems appropriate and consistent with the purposes of the
present Convention; and
(c) the Management Authority may obtain the advice
of a Scientific Authority, or may, whenever it considers
it desirable, consult the Secretariat in order to facili-
tate the decision under subparagraph (b) of this para-
graph, including the choice of a rescue centre or other
place.
5. A rescue centre as referred to in paragraph 4 of
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AND REPORTS 827
this Article means an institution designated by a
Management Authority to look after the welfare of living
specimens, particularly those that have been confiscated.
6. Each Party shall maintain records of trade in speci-
mens of species included in Appendices I, II and III
which shall cover:
(a) the names and addresses of exporters and import-
ers; and
(b) the number and type of permits and certificates
granted; the States with which such trade occurred; the
numbers or quantities and types of specimens, names of
species as included in Appendices I, II and III and,
where applicable, the size and sex of the specimens in
question.
7. Each Party shall prepare periodic reports on its im-
plementation of the present Convention and shall transmit
to the Secretariat:
(a) an annual report containing a summary of the
information specified in sub-paragraph (b) of paragraph
6 of this Article; and
(b) a biennial report on legislative, regulatory and
administrative measures taken to enforce the provisions
of the present Convention.
8. The information referred to in paragraph 7 of this
Article shall be available to the public where this is
not inconsistent with the law of the Party concerned.
ARTICLE IX
Management and Scientific Authorities
1. Each Party shall designate for the purposes of the
present Convention:
(a) one or more Management Authorities competent to
grant permits or certificates on behalf of that Party;
and
(b) one or more Scientific Authorities.
2. A State depositing an instrument of ratification,
acceptance, approval or accession shall at that time
inform the Depositary Government of the name and address
of the Management Authority authorized to communicate
with other Parties and with the Secretariat.
3. Any changes in the designations or authorizations
under the provisions of this Article shall be communi-
cated by the Party concerned to the Secretariat for
transmission to all other Parties.
4. Any Management Authority referred to in paragraph 2
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828 LEGAL COMPILATION—SUPPLEMENT u
of this Article shall if so requested by the Secretariat
or the Management Authority of another Party, communicate
to it impression of stamps, seals or other devices used
to authenticate permits or certificates.
ARTICLE X
Trade with States not Party to the Convention
Where export or re-export is to, or import is from, a
State not a party to the present Convention, comparable
documentation issued by the competent authorities in that
State which substantially conforms with the requirements
of the present Convention for permits and certificates
may be accepted in lieu thereof by any Party.
ARTICLE XI
Conference of the Parties
1. The Secretariat shall call a meeting of the Confer-
ence of the Parties not later than two years after the
entry into force of the present Convention.
2. Thereafter the Secretariat shall convene regular
meetings at least once every two years, unless the Con-
ference decides otherwise, and extraordinary meetings at
any time on the written request of at least one-third of
the Parties.
3. At meetings, whether regular or extraordinary, the
Parties shall review the implementation of the present
Convention and may:
(a) make such provision as may be necessary to
enable the Secretariat to carry out its duties;
(b) consider and adopt amendments to Appendices T
and II in accordance with Article XV;
(c) review the progress made towards the restoration
and conservation of the species included in Appendices I,
II and III;
(d) receive and consider any reports presented by
the Secretariat or by any Party; and
(e) where appropripte, make recommendations for
improving the effectiveness of the present Convention.
4. At each regular meeting, the Parties may determine
the time and venue of the next regular meeting to be
held in accordance with the provisions of paragraph 2 of
this Article.
5. At any meeting, the Parties may determine and adopt
rules of procedure for the meeting.
6. The United Nations, its Specialized Agencies and the
International Atomic Energy Agency, as well as any State
462
-------
GUIDELINES AND REPORTS 829
not a Party to the present Convention, may be represented
at meetings of the Conference by observers, who shall
have the right to participate but not to vote.
7. Any body or agency technically qualified in protec-
tion, conservation or management of wild fauna and
flora, in the following categories, which has informed
the Secretariat of its desire to be represented at meet-
ings of the Conference by observers, shall be admitted
unless at least one-third of the Parties present object:
(a) international agencies or bodies, either govern-
mental or non-governmental, and national governmental
agencies and bodies; and
(b) national non-governmental agencies or bodies
which have been approved for this purpose by the State in
which they are located.
Once admitted, these observers shall have the right to
participate but not to vote.
ARTICLE XII
The Secretariat
1. Upon entry into force of the present Convention, a
Secretariat shall be provided by the Executive Director
of the United Nations Environment Programme. To the
extent and in the manner he considers appropriate, he may
be assisted by suitable inter-governmental or non-govern-
mental international or national agencies and bodies
technically qualified in protection, conservation and
management of wild fauna and flora.
2. The functions of the Secretariat shall be:
(a) to arrange for and service meetings of the
Parties;
(b) to perform the functions entrusted to it under
the provisions of Articles XV and XVI of the present
Convention;
(c) to undertake scientific and technical studies in
accordance with programmes authorized by the Conference
of the Parties as will contribute to the implementation
of the present Convention, including studies concerning
standards for appropriate preparation and shipment of
living specimens and the means of identifying specimens;
(d) to study the reports of Parties and to request
from Parties such further information with respect
thereto as it deems necessary to ensure implementation
of the present Convention;
(e) to invite the attention of the Parties to any
463
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830 LEGAL COMPILATION—SUPPLEMENT n
matter pertaining to the aims of the present Convention;
(f) to publish periodically and distribute to the
Parties current editions of Appendices I, II and III
together with any information which will facilitate
identification of specimens of species included in those
Appendices.
(g) to prepare annual reports to the Parties on its
work and on the implementation of the present Convention
and such other reports as meetings of the Parties may
request;
(hi to make recommendations for the implementation of
the aims and provisions of the present Convention,
including the exchange of information of a scientific or
technical nature;
(i) to perform any other function as may be entrusted
to it by the Parties.
ARTICLE XIII
International Measures
1. When the Secretariat in the light of information
received is satisfied that any species included in Appen-
dices I or II is being affected adversely by trade in
specimens of th?t species or that the provisions of the
present Convention are not being effectively implemented,
it shall communicate such information to the authorized
Management Authority of the Party or Parties concerned.
2. When any Party receives a communication as indicated
in paragraph 1 of this Article, it shall, as soon as
possible, inform the Secretariat of any relevant facts
insofar as its laws permit and, where appropriate, pro-
pose remedial action. Where the Party considers that an
inquiry is desirable, such inquiry may be carried out by
one or more persons expressly authorized by the Party.
3. The information provided by the Party or resulting
from any inquiry as specified in paragraph 2 of this
Article shall be reviewed by the next Conference of the
Parties which may make whatever recommendations it deems
appropriate.
ARTICLE XIV
Effect on Domestic Legislation
and International Conventions
1. The provisions of the present Convention shall in no
way affect the right of Parties to adopt:
(a) stricter domestic measures regarding the condi-
tions for trade, taking possession or transport of
464
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GUIDELINES AND REPORTS 831
specimens of species included in Appendices I, II and
III, or the complete prohibition thereof; or
(b) domestic measures restricting or prohibiting
trade, taking possession, or transport of species not
included in Appendices I, II or III.
2. The provisions of the present Convention shall in no
way affect the provisions of any domestic measures or
the obligations of Parties deriving from any treaty,
convention, or international agreement relating to other
aspects of trade, taking, possession, or transport of
specimens which is in force or subsequently may enter
into force for any Party including any measure pertaining
to the Customs, public health, veterinary or plant
quarantine fields.
3. The provisions of the present Convention shall in no
way affect the provisions of, or the obligations deriving
from, any treaty, convention or international agreement
concluded or which may be concluded between States
creating a union or regional trade agreement establish-
ing or maintaining a common external customs control and
removing customs control between the parties thereto
insofar as they relate to trade among the States members
of that union or agreement.
4. A State party to the present Convention, which is
also a party to any other treaty, convention or interna-
tional agreement which is in force at the time of the
coming into force of the present Convention and under
the provisions of which protection is afforded to marine
species included in Appendix II, shall be relieved of
the obligations imposed on it under the provisions of
the present Convention with respect to trade in specimens
of species included in Appendix II that are taken by
ships registered in that State and in accordance with
the provisions of such other treaty, convention or
international agreement.
5. Notwithstanding the provisions of Articles III, IV
and V, any export of a specimen taken in accordance with
paragraph 4 of this Article shall only require a certifi-
cate from a Management Authority of the State of intro-
duction to the effect that the specimen was taken in
accordance with the provisions of the other treaty, con-
vention or international agreement in question.
6. Nothing in the present Convention shall prejudice
the codification and development of the law of the sea by
465
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832 LEGAL COMPILATION—SUPPLEMENT n
the United Nations Conference on the Law of the Sea
convened pursuant to Resolution 2750 C (XXV) of the
General Assembly of the United Nations nor the present
or future claims and legal views of any State concerning
the law of the sea and the nature and extent of coastal
and flag State jurisdiction.
ARTICLE XV
Amendments to Appendices I and II
1. The following provisions shall apply in relation to
amendments to Appendices I and II at meetings of the
Conference of the Parties:
(a) Any Party may propose an amendment to Appendix I
or II for consideration at the next meeting. The text
of the proposed amendment shall be communicated to the
Secretariat at least 150 days before the meeting. The
Secretariat shall consult the other Parties and inter-
ested bodies on the amendment in accordance with the
provisions of sub-paragraphs (b) and (c) of paragraph 2
of this Article and shall communicate the response to
all Parties not later than 30 days before the meeting.
(b) Amendments shall be adopted by a two-thirds
majority of Parties present and voting. For these pur-
poses "Parties present and voting" means Parties present
and casting an affirmative or negative vote. Parties
abstaining from voting shall not be counted among the
two-thirds required for adopting an amendment.
(c) Amendments adopted at a meeting shall enter into
force 90 days after that meeting for all Parties except
those which make a reservation in accordance with para-
graph 3 of this Article.
2. The following provisions shall apply in relation to
amendments to Appendices I and II between meetings of
the Conference of the Parties:
(a) Any Party may propose an amendment to Appendix I
or II for consideration between meetings by the postal
procedures set forth in this paragraph.
(bl For marine species, the Secretariat shall, upon
receiving the text of the proposed amendment, immediate-
ly communicate it to the Parties. It shall also consult
inter-governmental bodies having a function in relation
to those species especially with a view to obtaining
scientific data these bodies may be able to provide and
to ensuring coordination with any conservation measures
enforced by such bodies. The Secretariat shall
466
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GUIDELINES AND REPORTS 833
communicate the views expressed and data provided by
these bodies and its own findings and recommendations to
the Parties as soon as possible.
(c) For species other than marine species, the Secre-
tariat shall, upon receiving the text of the proposed
amendment, immediately communicate it to the Parties,
and, as soon as possible thereafter, its own recommen-
dations.
(dl Any Party may, within 60 days of the date on
which the Secretariat communicated its recommendations
to the Parties under sub-paragraphs (b) or (c^ of this
paragraph, transmit to the Secretariat any comments on
the proposed amendment together with any relevant scien-
tific data and information.
(e) The Secretariat shall communicate the replies
received together with its own recommendations to the
Parties as soon as possible.
(f) If no objection to the proposed amendment is re-
ceived by the Secretariat within 30 days of the date the
replies and recommendations were communicated under the
provisions of sub-paragraph (e) of this paragraph, the
amendment shall enter into force 90 days later for all
Parties except those which make a reservation in accord-
ance with paragraph 3 of this Article.
(gl If an objection by any Party is received by the
Secretariat, the proposed amendment shall be submitted
to a postal vote in accordance with the provisions of
sub-paragraphs (h), (i) and (j) of this paragraph.
(h) The Secretariat shall notify the Parties that
notification of objection has been received.
(i) Unless the Secretariat receives the votes for,
against or in abstention from at least one-half of the
Parties within 60 days of the date of notification under
sub-paragraph (hi of this paragraph, the proposed amend-
ment shall be referred to the next meeting of the Confer-
ence for further consideration.
(j) Provided that votes are received from one-half
of the Parties, the amendment shall be adopted by a two-
thirds majority of Parties casting an affirmative or
negative vote.
(1<) The Secretariat shall notify all Parties of the
result of the vote.
(1"! If the proposed amendment is adopted it shall
enter into force 90 days after the date of the
467
-------
834 LEGAL COMPILATION—SUPPLEMENT 11
notification by the Secretariat of its acceptance for all
Parties except those which make a reservation in accord-
ance with paragraph 3 of this Article.
3. During the period of 90 days provided for by sub-
paragraph (c) of paragraph 1 or sub-paragraph (1) of
paragraph 2 of this Article any Party may by notifica-
tion in writing to the Depositary Government make a
reservation with respect to the amendment. Until such
reservation is withdrawn the Party shall be treated as a
State not a party to the present Convention with respect
to trade in the species concerned.
ARTICLE XVI
Appendix III and Amendments thereto
1. Any party may at any time submit to the Secretariat a
list of species which it identifies as being subject to
regulation within its jurisdiction for the purpose men-
tioned in paragraph 3 of Article II. Appendix III shall
include the names of the Parties submitting the species
for inclusion therein, the scientific names of the spe-
cies so submitted, and any parts or derivatives of the
animals or plants concerned that are specified in rela-
tion to the species for the purposes of sub-paragraph
(b) of Article I.
2. Each list submitted under the provisions of para-
graph 1 of this Article shall be communicated to the
Parties by the Secretariat as soon as possible after
receiving it. The list shall take effect as part of
Appendix III 90 days after the date of such communica-
tion. At any time after the communication of such list,
any Party may by notification in writing to the Deposi-
tary Government enter a reservation with respect to any
species or any parts or derivatives, and until such
reservation is withdrawn, the State shall be treated as
a State not a Party to the present Convention with re-
spect to trade in the species or part or derivative
concerned.
3. A Party which has submitted a species for inclusion
in Appendix III may withdraw it at any time by notifi-
cation to the Secretariat which shall communicate the
withdrawal to all Parties. The withdrawal shall take
effect 30 days after the date of such communication.
4. Any Party submitting a list under the provisions of
paragraph 1 of this Article shall submit to the Secre-
tariat a copy of all domestic laws and regulations
468
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GUIDELINES AND REPORTS 835
applicable to the protection of such species, together
with any interpretations which the Party may deem appro-
priate or the Secretariat may request. The Party shall,
for as long as the species in question is included in
Appendix III, submit any amendments of such laws and
regulations or any new interpretations as they are
adopted.
ARTICLE XVII
Amendment of the Convention
1. An extraordinary meeting of the Conference of the
Parties shall be convened by the Secretariat on the
written request of at least one-third of the Parties to
consider and adopt amendments to the present Convention.
Such amendments shall be adopted by a two-thirds majori-
ty of Parties present and voting. For these purposes
"Parties present and voting" means Parties present and
casting an affirmative or negative vote. Parties ab-
staining from voting shall not be counted among the two-
thirds required for adopting an amendment.
2. The text of any proposed amendment shall be communi-
cated by the Secretariat to all Parties at least 90 days
before the meeting.
3. An amendment shall enter into force for the Parties
which have accepted it 60 days after two-thirds of the
Parties have deposited an instrument of acceptance of the
amendment with the Depositary Government. Thereafter,
the amendment shall enter into force for any other Party
60 days after that Party deposits its instrument of
acceptance of the amendment.
ARTICLE XVIII
Resolution of Disputes
1. Any dispute which may arise between two or more
Parties with respect to the interpretation or applica-
tion of the provisions of the present Convention shall
be subject to negotiation between the Parties involved
in the dispute.
2. If the dispute cannot be resolved in accordance with
paragraph l.of this Article, the Parties may, by mutual
consent, submit the dispute to arbitration, in particu-
lar that of the Permanent Court of Arbitration at The
Hague, and the Parties submitting the dispute shall be
bound by the arbitral decision.
ARTICLE XIX
Signature
469
-------
836 LEGAL COMPILATION—SUPPLEMENT n
The present Convention shall be open for signature
at Washington until 30th April 1973 and thereafter at
Berne until 31st December 1974.
ARTICLE XX
Ratification, Acceptance, Approval
The present Convention shall be subject to ratifica-
tion, acceptance or approval. Instruments of ratifica-
tion, acceptance or approval shall be deposited with the
Government of the Swiss Confederation which shall be the
Depositary Government.
ARTICLE XXI
Accession
The present Convention shall be open indefinitely
for accession. Instruments of accession shall be depos-
ited with the Depositary Government.
ARTICLE XXII
Entry into Force
1. The present Convention shall enter into force 90 days
after the date of deposit of the tenth instrument of
ratification, acceptance, approval or accession, with
the Depositary Government.
2. For each State which ratifies, accepts or approves
the present Convention or accedes thereto after the de-
posit of the tenth instrument of ratification, accep-
tance, approval or accession, the present Convention
shall enter into force 90 days after the deposit by such
State of its instrument of ratification, acceptance, ap-
proval or accession.
ARTICLE XXIII
Reservations
1. The provisions of the present Convention shall not
be subject to general reservations. Specific reserva-
tions may be entered in accordance with the provisions
Of this Article and Articles XV and XVI.
2. Any State may, on depositing its instrument of rati-
fication, acceptance, approval or accession, enter a
specific reservation with regard to:
(a) any species included in Appendix I, II or III;
or
(b) any parts or derivatives specified in relation
to a species included in Appendix III.
3. Until a Party withdraws its reservation entered
under the provisions of this Article, it shall be treat-
ed as a State not a party to the present Convention with
470
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GUIDELINES AND REPORTS 837
respect to trade in the particular species or parts or
derivatives specified in such reservation.
ARTICLE XXIV
Denunciation
Any Party may denounce the present Convention by
written notification to the Depositary Government at any
time. The denunciation shall take effect twelve months
after the Depositary Government has received the notifi-
cation.
ARTICLE XXV
Depositary
1. The original of the present Convention, in the
Chinese, English, French, Russian and Spanish languages,
each version being equally authentic, shall be deposited
with the Depositary Government, which shall transmit cer-
tified copies thereof to all States that have signed it
or deposited instruments of accession to it.
2. The Depositary Government shall inform all signatory
and acceding States and the Secretariat of signatures,
deposit of instruments of ratification, acceptance, ap-
proval or accession, entry into force of the present
Convention, amendments thereto, entry and withdrawal of
reservations and notifications of denunciation.
3. As soon as the present Convention enters into force,
a certified copy thereof shall be transmitted by the
Depositary Government to the Secretariat of the United
Nations for registration and publication in accordance
with Article 102 of the Charter of the United Nations.
IN WITNESS WHEREOF the undersigned Plenipotentiaries,
being duly authorized to that effect, have signed the
present Convention.
DONE at Washington this third day of March, One
Thousand Nine Hundred and Seventy-three.
471
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838 LEGAL COMPILATION—SUPPLEMENT n
APPENDIX I
Interpretation:
1. Species included in this Appendix are referred to:
(a) by the name of the species; or
(b) as being all of the species included in a
higher taxon or designated part thereof.
2. The abbreviation "spp." is used to denote all
species of a higher taxon.
3. Other references to taxa higher than species are for
the purposes of information or classification only.
4. An asterisk (*) placed against the name of a species
or higher taxon indicates that one or more geographical-
ly separate populations, sub-species or species of that
taxon are included in Appendix II and that these popula-
tions, sub-species or species are excluded from
Appendix I.
5. The symbol (-) followed by a number placed against
the name of a species or higher taxon indicates the
exclusion from that species or taxon of designated
geographically separate populations, sub-species or
species as follows:
- 101 Lemur catta
- 102 Australian population
6. The symbol (+) followed by a number placed against
the name of a species denotes that only a designated
geographically separate population or sub-species of
that species is included in this Appendix, as follows:
+ 201 Italian population only
7. The symbol (/) placed against the name of a species
or higher taxon indicates that the species concerned are
protected in accordance with the International Whaling
Commission's schedule of 1972.
FAUNA
MAMMALIA
MARSUPIALIA
Macropodidae Macropus parma
Onychogalea frenata
0. lunata
Lagorchestes hirsutus
Lagostrophus fasciatus
Caloprymnus campestris
Bettongia penicillata
B. lesueur
472
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GUIDELINES AND REPORTS
839
Phalangeridae
Burramyidae
Vombatidae
Peramelidae
Dasyuridae
Thylacinidae
PRIMATES
Lemuridae
Indriidae
Daubentoniidae
Callithricidae
Cebidae
Cercopithecidae
B. tropica
Wyulda squamicaudata
Burramys parvus
Lasiorhinus gillespiei
Perameles bougainville
Chaeropus ecaudatus
Macrotis lagotis
M. leucura
Planigale tenuirostris
P. subtilissima
Sminthopsis psammophila
S. longicaudata
Antechinomys laniger
Myrmecobius fasciatus rufus
Thylacinus cynocephalus
Lemur spp. -101
Lepilemur spp.
Hapalemur spp.
Allocebus spp.
Cheirogaleus spp.
Mirocebus spp.
Phaner spp.
Indri spp.
Propithecus spp.
Avahi spp.
Daubentonia madagascariensis
Leontopithecus (Leontideus) spp.
Callimico goeldii
Saimiri oerstedii
Chiropotes albinasus
Cacajao spp.
Alouatta palliata (villosa)
Ateles geoffroyi frontatus
A. g. panamensis
Brachyteles arachnoides
Cercocebus galeritus galeritus
Macaca silenus
Colobus badius rufomitratus
C. b. kirkii
Presbytis geei
P. pileatus
P. entellus
Nasalis larvatus
473
-------
840
LEGAL COMPILATION—SUPPLEMENT n
Hylobatidae
Pongidae
EDENTATA
Dasypodidae
PHOLIDOTA
Manidae
LAGOMORPHA
Leporidae
RODENTIA
Sciuridae
Castoridae
Muridae
Chinchillidae
CETACEA
Platanistidae
Eschrichtidae
Balaenopteridae
Balaenidae
CARNIVORA
Canidae
Viverridae
Ursidae
Simias concolor
Pygathrix nemaeus
Hylobates spp.
Symphalanqus syndactylus
Pongo pyqmaeus pyqamaeus
P. p. abelii
Gorilla gorilla
Priodontes giganteus (=maximus)
Manis temmincki
Romerolagus diazi
Caprolagus hispidus
Cynomys mexicanus
Castor fiber birulaia
Castor canadensis mexicanus
Zyzomys pedunculatus
Leporillus conditor
Pseudomys novaehollandiae
P. praeconis
P. shortridgei
P. fumeus
P. occidentalis
P. fieldi
Notomys aquilo
Xeromys myoides
Chinchilla brevicaudata
boliviana
Platanista gangetica
Eschrichtius robustus
(glaucus) /
Balaenoptera musculus /
Megaptera novaeangliae /
Balaena mysticetus /
Eubalaena spp. /
Canis lupus monstrabilis
Vulpes velox hebes
Prionodon pardicolor
Ursus americanus emmonsii
U. arctos pruinosus
474
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GUIDELINES AND REPORTS
841
Mustelidae
Hyaenidae
Felidae
PINNIPEDIA
Phocidae
PROBOSCIDEA
Elephantidae
SIRENIA
Dugongidae
Trichechidae
U. arctos +201
U. a. nelsoni
Mustela nigripes
Lutra longicaudis (platensis/
annectens)
L. felina
L. provocax
Pteronura brasiliensis
Aonyx microdon
Enhydra lutris nereis
Hyaena brunnea
Felis planiceps
F. nigripes
F. concolor coryi
F. c. costaricensis
F. c. cougar
F. temmincki
Felis bengalensis bengalensis
F. yagouaroundi cacomitli
F. y. fossata
F. y. panamensis
F. y. tolteca
F. pardalis mearnsi
F. p. mitis
F. wiedii nicaraguae
F. w. salvinia
F. tigrina oncilla
F. marmorata
F. jacobita
F_. (Lynx) rufa escuinapae
Neofelis nebulosa
Panthera tigris*
P. pardus
P. uncia
P. onca
Acinonyx -jubatus
Monachus spp.
Mirounga angustirostris
Elephas maximus
Dugong dugon -102
Trichechus manatus
475
-------
842
LEGAL COMPILATION—SUPPLEMENT n
PERISSODACTYLIA
Equidae
Tapiridae
Rhinocerotidae
ARTIODACTYLA
Suidae
Camelidae
Cervidae
Antilocapridae
Bovidae
T. inunquis
Equus przewalskii
E. hemionus hemionus
E. h. khur
E. zebra zebra
Tapirus pinchaque
T. bairdii
T. indicus
Rhinoceros unicornis
R. sondaicus
Didermocerus sumatrensis
Ceratotherium simum cottoni
Sus salvanius
Babyrousa babyrussa
Vicugna vicugna
Camelus bactrianus
Moschus moschiferus moschiferus
Axis (Hvelaphus) porcinus
annamiticus
A. (Hyelaphusl calamianensis
A. (Hyelaphus) kuhlii
Cervus duvauceli
C. eldi
C. elaphus hanglu
Hippocamelus bisulcus
H. antisiensis
Blastoceros dichotomies
Ozotoceros bezoarticus
Pudu pudu
Antilocapra americana
sonoriensis
A. a. peninsularis
Bubalus (Anoa) mindorensis
J3. (Anoa) depressicornis
13. (Anoa) quarlesi
Boa gaurus
B;. (grunniens) mutus
Novibos (Bos) sauveli
Bison bison athabascae
Kobus leche
Hippotragus niger variani
Oryx leucoryx
476
-------
GUIDELINES AND REPORTS
843
Damaliscus dorcas dorcas
Saiga tatarica mongolica
Nemorhaedus
TINAMIFORMES
Tinamidae
PODICIPEDIFORMES
Podicipedidae
PROCELLARIIFORMES
Diomedeidae
PELECANIFORMES
Sulidae
Fregatidae
CICONIIFORMES
Ciconiidae
Threskiornithidae
ANSERIFORMES
Anatidae
FALCONIFORMES
Cathartidae
Accipitridae
Capricornis sumatraensis
Rupicapra rupicapra ornata
Capra falconer! jerdoni
C. f. megaceros
C. f. chiltanensis
Ovis orientalis ophion
0. ammon hodgsoni
0. vignei
AVES
Tinamus solitarius
Podilymbus gigas
Diomedea albatrus
Sula abbotti
Falconidae
Fregata andrewsi
Ciconia ciconia boyciana
Nipponia nippon
Anas aucklandica nesiotis
Anas oustaleti
Anas laysanensis
Anas diazi
Cairina scutulata
Rhodonessa caryophyllacea
Branta canadensis leucopareia
Branta sandvicensis
Vultur gryphus
Gymnogyps californianus
Pithecophaga jefferyi
Harpia harpy-ja
Haliaetus 1. leucocephalus
Haliaetus heliaca adalberti
Haliaetus albicilla
groenlandicus
Falco peregrinus anatum
Falco peregrinus tundrius
477
-------
844
LEGAL COMPILATION—SUPPLEMENT n
GALLIFORMES
Megapodiidae
Cracidae
Tetraonidae
Phasianidae
GRUIPORMES
Gruidae
Rallidae
Rhynochetidae
Otididae
CHARADRIIFORMES
Scolopacidae
Falco peregrinus peregrinus
Falco perejgrinus babylonicus
Macrocephalon maleo
Crax blumenbachii
Pipile p. pipile
Pipile -jacutinga
Mitu mitu mitu
Oreophasis derbianus
Tympanuchus cupido attwateri
Colinus virginianus ridgwayi
Tragopan blythii
Tragopan caboti
Tragopan melanocephalus
Lophophorus sclateri
Lophophorus Ihuysii
Lophophorus impe-janus
Crossoptilon mantchuricum
Crossoptilon crossoptilon
Lophura svinhoii
Lophura imperialis
Lophura edwardsii
Syrmaticus ellioti
Syrmaticus humiae
Syrmaticus mikado
Polyplectron emphanum
Tetraog-allus tibetanus
Tetraogallus caspius
Cyrtonyx montezumae merriami
Grus japonensis
GJTUS leucogeranus
Grigs americana
Grus canadensis pulla
Grus canadensis nesiotes
Grus nigricollis
Grus vipio
Grus monacha
Tricholimnas sylvestris
Rhynochetos iubatus
Eupodotis benqalensis
Numenius borealis
Tringa guttifer
478
-------
GUIDELINES AND REPORTS
845
Laridae
COLUMBIFORMES
Columbidae
PSITTACIFORMES
Psittacidae
APODIFORMES
Trochilidae
TROGONIFORMES
Trogonidae
STRIGIFORMES
Strigidae
CORACIIFORMES
Bucerotidae
PICIFORMES
Picidae
PASSERIFORMES
Cotingidae
Larus relictus
Ducula mindorensis
Strigops habroptilus
Rhynchopsitta pachyrhyncha
Amazona leucocephala
Amazona vittata
Amazona quildingii
Amazona versicolor
Amazona imperialis
Amazona rhodocorytha
Amazona petrel petrel
Amazona vinacea
Pyrrhura cruentata
Anodorhynchus glaucus
Anodorhynchus leari
Cyanopsitta spixii
Pionopsitta pileata
Aratinga guaruba
Psittacula krameri echo
Psephotus pulcherrimus
Psephotus chrysopterygius
Neophema chrysogaster
Neophema splendida
Cyanoramphus novaezelandiae
Cyanoramphus auriceps forbesi
Geopsittacus occidentalis
Psittacus erithacus princeps
Ramphodon dohrnii
Pharomachrus mocinno mocinno
Pharomachrus mocinno costari-
censis
Otus gurneyi
Rhinoplax vigil
Dryocopus -iavensis richardsii
Campephilus imperialis
Cotinga maculata
479
-------
846
LEGAL COMPILATION—SUPPLEMENT n
Pittidae
Atrichornithidae
Muscicapidae
Sturnidae
Meliphagidae
Zosteropidae
Fringillidae
URODELA
Cryptobranchidae
SALIENTIA
Bufonidae
Atelopodidae
CROCODYLIA
Alligatoridae
Crocodylidae
Xipholena atro-purpurea
Pitta kochi
Atrichornis clamosa
Picathartes gymnocephalus
Picathartes oreas
Psophodes nigrogularis
Amytornis goyderi
Dasyornis brachypterus
longirostris
Dasyornis broadbenti littoralis
Leucopsar rothschildi
Meliphaga cassidix
Zosterops albogularis
Spinus cucullatus
AMPHIBIA
Andrias (=Megalobatrachus)
davidianus japonicus
Andrias (=Megalobatrachus'>
davidianus davidianus
Bufo superciliaris
Bufo periglenes
Nectophrynoides spp.
Atelopus varius zeteki
REPTILIA
Alligator mississippiensis
Alligator sinensis
Melanosuchus niger
Caiman crocodilus apaporiensis
Caiman latirostris
Tomistoma schlegelii
Osteolaemus tetraspis
tetraspis
Osteolaemus tetraspis osborni
Crocodylus cataphractus
Crocodylus siamensis
Crocodylus palustris palustris
Crocodylus palustris kimbula
Crocodylus novaeguineae
mindorensis
Crocodylus intermedius
Crocodylus rhombifer
480
-------
GUIDELINES AND REPORTS
847
Gavialidae
TESTUDINATA
Emydidae
Testudinidae
Cheloniidae
Trionychidae
Chelidae
LACERTILIA
Varanidae
SERPENTES
Boidae
RHYNCHOCEPHALIA
Sphenodontidae
ACIPENSERIFORMES
Acipenseridae
OSTEOGLOSSIFORMES
Osteoglossidae
SALMONIFORMES
Salmonidae
CYPRINIFORMES
Crocodylus moreletii
Crocodylus niloticus
Gavialis gangeticus
Batagur baska
Geoclemmys (—Damonia) hamiltonii
Geoemyda (=Nicoria) tricarinata
Kachuga tecta tecta
Morenia ocellata
Terrapene coahuila
Geochelone (=Testudo) elephan-
topus
Geochelone (=Testudo) geometrica
Geochelone (=Testudo) radiata
Geochelone (=Testudo) yniphora
Eretmochelys imbricata
imbricata
Lepidochelvs kempii
Lissemys punctata punctata
Trionyx ater
Trionyx nigricans
Trionyx gangeticus
Trionyx hurum
Pseudemydura umbrina
Varanus komodoensis
Varanus flavescens
Varanus bengalensis
Varanus griseus
Epicrates inornatus inornatus
Epicrates subflavus
Python mplurus molurus
Sphenodon punctatus
PISCES
Acipenser brevirostrum
Acipenser oxyrhynchus
Scleropages formosus
Coregonus alpenae
481
-------
848
LEGAL COMPILATION—SUPPLEMENT n
Catostomidae
Cyprinidae
SILURIFORMES
Schilbeidae
PERCIFORMES
Percidae
NAIADOIDA
Unionidae
Chasmistes cujus
Probarbus jullieni
Panqasianodon gigas
Stizostedion vitreum glaucum
MOLLUSCA
Conradilla caelata
Dromus dromas
Epioblasma (=Dysnomia')
florentina curtisi
Epioblasma (=Dysnomia)
florentina florentina
Epioblasma (=Dysnomia) sampsoni
Epioblasma (=Dysnomia) sulcata
perobliqua
Epioblasma (=Dysnomia)
torulosa gubernaculum
Epioblasma (=Dysnomia)
torulosa torulosa
Epioblasma (=Dysnomia)
turgidula
Epioblasma (=Dysnomia) walkeri
Fusconaia cuneolus
Fusconaia edgariana
Lampsilis hiqqinsi
Lampsilis orbiculata
orbiculata
Lampsilis satura
Lampsilis virescens
Plethobasis cicatricosus
Plethobasis cooperianus
Pleurobema plenum
Potamilus (=Proptera) capax
Quadrula intermedia
Quadrula sparsa
Toxolasma (=Carunculina)
cylindrella
Unio (Megalonaias/?/)
nickliniana
Unio (Lampsilis/?/) tampicoen-
sis tecomatensis
Villosa (=Micromya) trabalis
482
-------
GUIDELINES AND REPORTS
849
ARACEAE
CARYOCARACEAE
CARYOPHYLLACEAE
CUPRESSACEAE
CYCADACEAE
GENTIANACEAE
HUMIRIACEAE
JUGLANDACEAE
LEGUMINOSAE
LILIACEAE
MELASTOMACEAE
MELIACEAE
MORACEAE
ORCHIDACEAE
PINACEAE
PODOCARPACEAE
PROTEACEAE
RUBIACEAE
SAXIFRAGACEAE
(GROSSULARIACEAE)
TAXACEAE
FLORA
Alocasia sanderiana
Alocasia zebrina
Caryocar costaricense
Gymnocarpos przewalskii
Melandrium mongolicum
Silene mongolica
Stellaria pulvinata
Pilgerodendron uviferum
Encephalartos spp.
Microcycas calocoma
Stangeria eriopus
Prepusa hookeriana
Vantanea barbourii
Engelhardtia pterocarpa
Ammopiptanthus mongolicum
Cynometra hemitomophylla
Platymiscium pleiostachyum
Aloe albida
Aloe pillansii
Aloe polyphylla
Aloe thorncroftii
Aloe vossii
Lavoisiera itambana
Guarea longipetiola
Tachiqalia versicolor
Batocarpus costaricense
Cattleya iongheana
Cattleya skinneri
Cattleya trianae
Didiciea cunninghamii
Laelia lobata
Lycaste virginal is var. alba
Peristeria elata
Abies guatamalensis
Abies nebrodensis
Podocarpus costalis
Podocarpus parlatorei
Orothamnus zeyheri
Protea ordorata
Balmea stormae
Ribes sardoum
Fitzroya cupressoides
483
-------
850 LEGAL COMPILATION—SUPPLEMENT n
ULMACEAE Celtis aetnensis
WELWITSCHIACEAE Welwitschia bainesii
ZINGIBERACEAE Hedychium philippinense
484
-------
GUIDELINES AND REPORTS 851
APPENDIX II
Interpretation:
1. Species included in this Appendix are referred to:
(al by the name of the species; or
(b) as being all of the species included in a
higher taxon or designated part thereof.
2. The abbreviation "spp." is used to denote all the
species of a higher taxon.
3. Other references to taxa higher than species are for
the purposes of information or classification only.
4. An asterisk (*1 placed against the name of a species
or higher taxon indicates that one or more geographically
separate populations, sub-species or species of that
taxon are included in Appendix I and that these popula-
tions, sub-species or species are excluded from
Appendix II.
5. The symbol (#) followed by a number placed against
the name of a species or higher taxon designates parts
or derivatives which are specified in relation thereto
for the purposes of the present Convention as follows:
# 1 designates root
# 2 designates timber
# 3 designates trunks
6. The symbol (-) followed by a number placed against
the name of a species or higher taxon indicates the
exclusion from that species or taxon of designated
geographically separated populations, sub-species,
species or groups of species as follows:
- 101 Species which are not succulents
7. The symbol (+1 followed by a number placed against
the name of a species or higher taxon denotes that only
designated geographically separate populations, sub-
species or species of that species or taxon are included
in this Appendix as follows:
+ 201 All North American sub-species
+ 202 New Zealand species
+ 203 All species of the family in the Americas.
FAUNA
MAMMALIA
MARSUPIALIA
Macropodidae Dendrolagus inustus
Dendrolagus ursinus
INSECTIVORA
485
-------
852
LEGAL COMPILATION—SUPPLEMENT n
Erinaceidae
PRIMATES
Lemuridae
Lorisidae
Cebidae
Cercopithecidae
Pongidae
EDENTATA
Myrmecophagidae
Bradypodidae
PHOLIDOTA
Manidae
LAGOMORPHA
Leporidae
RODENTIA
Heteromyidae
Sciuridae
Castoridae
Cricetidae
Canidae
Ursidae
Procyonidae
Mustelidae
Viveridae
Erinaceus frontalis
Lemur catta
Nycticebus coucang
Loris tardigradus
Cebus capucinus
Macaca sylvanus
Colobus badius gordonorum
Colobus verus
Rhinopithecus roxellanae
Presbytis johnii
Pan paniscus
Pan troglodytes
Myrmecophaga tridactyla
Tamandua tetradactyla
chapadensis
Bradypus boliviensis
Manis crassicaudata
Manis pentadactyla
Manis -javanica
Nesolagus netscheri
Dipodomys phillipsii phillip-
sii
Ratufa spp.
Lariscus hosei
Castor canadensis frondator
Castor canadensis repentinus
Ondatra zibethicus bernardi
Canis lupus pallipes
Canis lupus irremotus
Canis lupus crassodon
Chrysocyon brachyurus
Cuon alpinus
Ursus (Thalarctos) maritimus
Prsis arctos +201
Helarctos malayanus
Ailurus fulgens
Martes americana atrata
Prionodon linsang
Cynogale bennetti
486
-------
GUIDELINES AND REPORTS
853
Felidae
PINNIPEDIA
Otariidae
Phocidae
TUBULIDENTATA
Orycteropidae
SIRENIA
Dugongidae
Trichechidae
PERISSODACTYLA
Equidae
Tapiridae
Rhinocerotidae
ARTIODACTYLA
Hippopotamidae
Cervidae
Antilocapridae
Bovidae
Helogale derbianus
Felis yagouaroundi*
Felis colocolo pa-jeros
Felis colocolo crespoi
Felis colocolo budini
Felis concolor missoulensis
Felis concolor mayensis
Felis concolor azteca
Felis serval
Felis lynx isabellina
Felis wiedii*
Felis pardalis*
Felis tiqrina*
Felis (=Caracal) caracal
Panthera leo persica
Panthera tigris altaica
(=amurensis)
Arctocephalus australis
Arctocephalus galapagoensis
Arctocephalus philippii
Arctocephalus townsendi
Mirounga australis
Mirounga leonina
Orycteropus afer
Dugong dugon*
Trichechus senegalensis
Bquus hemionus*
Tapirus terrestris
Diceros bicornis
Choeropus liberiensis
Cervus elaphus bactrianus
Pudu mephistophiles
Antilocapra americana mexicana
Cephalophus monticola
Oryx (tap) danunah
Addax nasomaculatus
Pantholops hodgsoni
Capra falconeri*
Ovis ammon*
487
-------
854
LEGAL COMPILATION—SUPPLEMENT n
Ovis canadensis
AVES
SPHENISCIFORMES
Spheniscidae
RHEIFORMES
Rheidae
TINAMIFORMES
Tinamidae
CICONIIFORMES
Ciconiidae
Threskiornithidae
Phoenicopteridae
PELECANIFORMES
Pelecanidae
ANSERIFORMES
Anatidae
FALCONIFORMES
Accipitridae
Falconidae
GALLIFORMES
Megapodiidae
Tetraonidae
Phasianidae
Spheniscus demersus
Rhea americana albescens
Pterocnemia pennata pennata
Pterocneniia pennata garleppi
Rhynchotus rufescens rufescens
Rhynchotus rufescens
pallescens
Rhynchotus rufescens
roaculicollis
Ciconis nigra
Geronticus calvus
Platalea leucorodia
Phoenicopterus ruber chilensis
Phoenicoparrus an.din.us
Phoenicoparrus -jamesi
Pelecanus crispus
Anas aucklandica aucklandica
Anas aucklandica chlorotis
Anas bernieri
Dendrocygna arborea
Sarkidiornis melanotos
Anser albifrons gambelli
Cygnus bewickii -jankowskii
Cygnus melancoryphus
Coscoroba coscoroba
Branta ruficollis
Gypaetus barbatus meridionalis
Aquila chrysaetos
Spp.*
Megapodius freycinet nico-
bariensis
Megapodius freycinet abbotti
Tympanuchus cupido pinnatus
Francolinus ochropectus
488
-------
GUIDELINES AND REPORTS
855
GRUIFORMES
Gruidae
Rallidae
Otididae
CHARADRIIFORMES
Scolopacidae
Laridae
COLUMBIFORMES
Columbidae
PSITTACIFORMES
Psittacidae
CUCULIFORMES
Musophagidae
STRIGIFORMES
Strigidae
CORACIIFORMES
Bucerotidae
Francolinus swierstrai
Catreus wallichii
Polyplectron malacense
Polyplectron germaini
Polyplectron bicalcaratum
Callus sonneratii
Argusianus argus
Ithaginus cruentus
Cyrtonyx montezumae montezumae
Cyrtonyx montezumae mearnsi
Balearica regulorum
Grus canadensis pratensis
Gallirallus australis hectori
Chlamydotis undulata
Choriotis nigriceps
Otis tarda
Numenius tenuirostris
Numenius minutus
Larus brunneicephalus
Gallicolumba luzonica
Goura cristata
Goura scheepmakeri
Goura victoria
Caloenas nicobarica pelewensis
Coracopsis nigra barklyi
Prosopeia personata
Eunymphicus cornutus
Cyanoramphus unicolor
Cyanoramphus novaezelandiae
Cyanoramphus malherbi
Poicephalus robustus
Tanygnathus luzoniensis
Probosciger aterrimus
Turaco corythaix
Gallirex porphyreolophus
Otus nudipes newtoni
Buceros rhinoceros rhinoceros
489
-------
856
LEGAL COMPILATION—SUPPLEMENT n
PICIFORMES
Picidae
PASSERIFORMES
Cotingidae
Pittidae
Hirundinidae
Paradisaeidae
Muscicapidae
Fringillidae
URODELA
Ambystomidae
SALIENTIA
Bufonidae
CROCODYLIA
Alligatoridae
Crocodylidae
TESTUDINATA
Emydidae
Testudinidae
Cheloniidae
Buceros bicornis
Buceros hydrocorax hydrocorax
Aceros narcondami
Picus squamatus flavirostris
Rupicola rupicola
Rupicola peruviana
Pitta brachyura nympha
Pseudochelidon sirintarae
Spp.
Muscicapa ruecki
Spinus yarrellii
AMPHIBIA
Ambystoma mexicanum
Ambystoma dumerillii
Ambystoma lermaensis
Bufo retiformis
Caiman crocodilus crocodilus
Caiman crocodilus yacare
Caiman crocodilus fuscus
(chiapasius)
Paleosuchus palpebrosus
Paleosuchus trigonatus
Crocodylus -johnsoni
Crocodylus novaeguineae
novaeguineae
Crocodylus porosus
Crocodylus acutus
Clemmys muhlenbergi
Chersine spp.
Geochelone spp.*
Gopherus spp.
Homopus spp.
Kinixys spp.
Malacochersus spp.
Pyxis spp.
Testudo spp.*
Caretta caretta
CheIonia mydas
490
-------
GUIDELINES AND REPORTS
857
Dermochelidae
Pelomedusidae
LACERTILIA
Teiidae
Iguanidae
Helodrmatidae
Varanidae
SERPENTES
Boidae
Colubridae
ACIPENSERIFORMES
Acipenseridae
CSTEOGLOSSIFORMES
Osteogldssidae
SALMONIFORMES
Salmonidae
CYPRINIFORMES
Cyprinidae
ATHERINIFORMES
Cyprinodontidae
Poeciliidae
Chelonia depressa
Eretmochelys imbricata bissa
Lepidochelys olivacea
Dermochelys coriacea
Podocnemis spp.
Cnemidophorus hyperythrus
Cololophus pallidus
Cololophus subscristatus
Amblyrhynchus cristatus
Phrynosoma coronatum
blainvillei
Heloderma suspectum
Heloderma horridum
Varanus spp.*
Epicrates cenchris cenchris
Eunectes notaeus
Constrictor constrictor
Python spp.*
Cyclagras qigas
Pseudoboa cloelia
Elachistodon westermanni
Thamnophis elegans hammondi
PISCES
Acipenser fulvescens
Acipenser sturio
Arapaima gigas
Stenodus leucichthys leu-
cichthys
Salmo chrysogaster
Plagopterus argentissimus
Ptychocheilus lucius
Cynolebias constanciae
Cynolebias marmoratus
Cynolebias minimus
Cynolebias opalescens
Cynolebias splendens
Xiphophorus couchianus
491
-------
858
LEGAL COMPILATION—SUPPLEMENT n
COELACANTHIFORMES
Coelacanthidae
CERATODIFORMES
Ceratodidae
NAIADOIDA
Unionidae
STYLOMMATOPHORA
Camaenidae
Paraphantidae
PROSOBRANCHIA
Hydrobiidae
LEPIDOPTERA
Papilionidae
APOCYNACEAE
ARALIACEAE
ARAUCARIACEAE
CACTACEAE
COMPOSITAB
CYATHEACEAE
Latimeria chalumnae
Neoceratodus forsteri
MOLLUSCA
Cyprogenia aberti
Epioblasma (=Dysnomia)
torulosa rangiana
Fusconaia subrotunda
Lampsilis brevicula
Lexingtonia dolabelloides
Pleorobema clava
Papustyla (=Papuina)
pulcherrima
Paraphanta spp. +202
Coahuilix hubbsi
Cochliopina milleri
Durangonella coahuilae
Mexipyrgus carranzae
Mexipyrgus churinceanus
Mexipyrgus escobedae
Mexipyrgus lugoi
Mexipyrgus mojarralis
Mexipyrgus multilineatus
Mexithauma quadripaludium
Nymphophilus minckleyi
Paludiscala caramba
INSECTA
Parnassius apollo apollo
FLORA
Pachypodium spp.
Panax quinquefold.urn
Araucaria araucana
Cactaceae spp. +203
Rtiipsalis spp.
Saussurea lappa #1
Cyathea (Hemitelial capensis
#3
Cyathea dredgei #3
Cyathea mexicana #3
492
-------
GUIDELINES AND REPORTS 859
Cyathea (Alsophila'i salvinii
#3
DIOSCOREACEAE Dioscorea deltoidea #1
EUPHORBIACEAE Euphorbis spp. -101
FAGACEAE Quercus copeyensis #2
LEGUMINOSAE Thermopsis mongolica
LILIACEAE Aloe spp.*
MELIACEAE Swietenia humilis #2
ORCHIDACEAE Spp.*
PALMAE Arenga ipot
Phoenix hanceana var.
philippinensis
Zalacca clemensiana
PORTULACACEAE Anacampseros spp.
PRIMULACEAE Cyclamen spp.
SOLANACEAE Solanum sylvestris
STERCULIACEAE Basiloxylon excelsum #2
VERBENACEAE Caryopteris mongolica
2YGOPHYLLACEAE Guaiacum sanctum #2
493
-------
860 LEGAL COMPILATION—SUPPLEMENT n
APPENDIX IV
CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES
OF WIIiD FAUNA AND FLORA
EXPORT PERMIT NO.
Exporting Country: Valid Until:
This permit is issued to:
address:
who declares that he is aware of the provisions of the Convention, for the
purpose of exporting: __^_
(specimen(s), or part(s) or derivative(s) of specimen(s)) _!/
of a species listed in Appendix I )
Appendix II }-2/
Appendix III of the Convention as specified below.)
(bred in captivity or cultivated in _ ) 2/
This (these) specimen(si is (are) consigned to:
address: country:
(signature of the applicant for the permit)
(stamp and signature of the Management
Authority issuing the export permit)
_!/ Indicate the type of product
_2/ Delete if not applicable
494
-------
GUIDELINES AND REPORTS
861
Description of the specimen(s) or part(s) or derivative(s) of specimen(s),
including any mark(s) affixed:
Living Specimens
Species
(scientific and
common name)
Number
Size
(or volume)
Mark
(if any)
Parts or Derivatives
Species
(scientific and
common name)
Type of Goods
Mark
(if any)
Stamps of the authorities inspecting:
(a) on exportation
(b) on importation *
*This stamp voids this permit for further trade purposes, and this permit
shall be surrendered to the Management Authority.
495
-------
-------
GUIDELINES AND REPORTS 863
Protecting
Our Natural Heritage
Predator Control
497
-------
-------
GUIDELINES AND REPORTS 865
THE SECRETARY OF THE INTERIOR
WASHINGTON
February 15, 1973
Dear Mr. [President/Speaker]:
There is enclosed a draft bill "To authorize the
Secretary of the Interior to assist the States in
controlling damage caused by predatory and depredating
animals; to establish a program of research concerning
the control and conservation of predatory and depre-
dating animals; to restrict the use of toxic chemicals
as a method of predator control; and for other purposes,"
to which the President refers in his Environment and
Natural Resources State of the Union Message transmit-
ted to you today.
We recommend that this bill be referred to the
appropriate committee for consideration, and we
recommend that it be enacted.
Predatory animal management has been a vexing
problem from the time of the early settlers. Existing
Federal programs are carried out pursuant to the Act
of March 2, 1931 (7 U.S.C. 426-426(b)), which directs
that we "conduct campaigns for the destruction or con-
trol of (predatory) animals." Through the years,
however, attitudes toward predatory animal control have
changed. Of particular recent concern has been the use
of non-selective poisons to kill predatory animals
because significant numbers of beneficial animals are
vulnerable to the poisons used to control predatory
animals. An advisory committee, reporting to the
Secretary of the Interior and the chairman of the
Council on Environmental Quality in January of 1972,
recommended a prohibition against the use of poisons
in predatory animal destruction, and expanded research
to determine the economics and ecology of predator
losses.
Following receipt of recommendations from the 1972
report. President Nixon on February 8, 1972, issued an
499
-------
866 LEGAL COMPILATION—SUPPLEMENT n
Executive Order restricting the use of chemical toxi-
cants in Federal programs and on public lands for
predatory animal control, and proposed legislation on
predator damage control.
As a result of Executive Order No. 11643, the Bureau
of Sport Fisheries and Wildlife moved promptly to modify
its animal control program. Field personnel retrieved
all poison baits. All "coyote getters" were deactivated
and bait stations containing the toxicant 1080 were
destroyed. The Bureau selectively provided those
services for which there was demonstrable need. No
poisons were used.
The intervening months have provided a period for
evaluation of our efforts, and we have concluded that a
reasonable level of control can be achieved without the
use of poisons, we have also had time for extensive
discussion and consultation. The proposed bill
reflects the results of these exchanges and the
experience gained in conducting a non-toxic program.
Our present proposal closely follows H.R. 13152,
the bill approved last year by the House of Representa-
tives. Our proposed legislation is based on the conclu-
sion that operational animal damage control programs
should be a State responsibility. It seeks to encourage
State assumption of this responsibility by providing
grants-in-aid to States whose predator control programs
meet standards to be established by the Secr3tary. No
Federal assistance would be available, however, to a
State whose program entails use of chemical toxicants
against predators or any use of chemical toxicants
having secondary poisoning effects. Provision is made
for continued Federal operational assistance during a
transitional period, but after this period, it is
intended that Federal operational participation will
cease. The Secretary will have discretion to provide
operational assistance to States in emergencies when
the States cannot deal with the emergency themselves,
but such Federal assistance would only be on a limited
basis and for a limited time since the Federal Govern-
ment will not continue to have any significant
operational capability.
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GUIDELINES AND REPORTS 867
Federal participation in animal control programs
would continue not only through the grants-in-aid pro-
gram, but also through an expanded Federal program of
research into methods of animal damage control. The
bill also provides authority for a cooperative Federal-
State management program on Federal lands.
In recognition of growing concern over the use of
non-selective poisons, section 5 of the draft bill
would prohibit the use on all Federal lands of chemical
toxicants for the purpose of destroying predatory ani-
mals, or use of chemical toxicants having secondary
poisoning effects against any animal, except when such
use is found, in emergency situations, to be essential
to the preservation of human health or safety, to the
protection of endangered wildlife species, or to the w
prevention of substantial irretrievable damage to
nationally significant resources.
We urge prompt and favorable consideration of this
legislation. We believe that the course of action con-
templated by it will provide both for the abatement of
damage caused by predatory and depredating animals and
for the maintenance of environmental quality.
The Office of Management and Budget has advised
that this legislative proposal is in accord with the
program of the President.
Sincerely yours,
/s/ Rogers C.B. Morton
Secretary of the Interior
Honorable Spiro T. Agnew
President of the Senate
Washington, D.C., 20510
Honorable Carl Albert
Speaker of the House
of Representatives
Washington, D.C., 20515
Enclosure
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868 LEGAL COMPILATION—SUPPLEMENT H
S. 887
H.R. 4759
A BILL
To authorize the Secretary of the Interior to
assist the States in controlling damage caused by pre-
datory and depredating animals; to establish a program
of research concerning the control and conservation of
predatory and depredating animals; to restrict the use
of toxic chemicals as a method of predator control; and
for other purposes.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled, "That this Act may be cited as the "Federal
Animal Damage Abatement Act of 1973".
SEC. 2. For the purpose of this Act—
(a) the term "person" means any individual,
organization or association, including any department,
agency, or instrumentality of the Federal Government,
a State government, or a political subdivision
thereof;
(b) the term "State" means the several states of
the Union, Puerto Rico, Guam, the Virgin Islands,
American Samoa, the Trust Territory of the Pacific
Islands, and the District of Columbia, but shall not
include any political subdivision of the foregoing
entities;
(c) the term "chemical toxicant" means any chemical
substance which, when ingested, inhaled, or absorbed,
or when applied to, or injected into the body, in
relatively small amounts, by its chemical action may
cause significant injury or illness, or death to ani-
mals or man, but excluding those chemical substances
that interfere with reproduction, attract or repel
animals, or deplete the oxygen temporarily within a
restricted area thus causing death by asphyxiation.
(d) the term "predatory animal" means any wild
mammal which habitually preys upon other animals;
(e) the term "depredating animal" means any non-
predatory wild mammal other than wild populations of
even-toed ungulates (ARTIODACTYLA) which may cause
damage to agricultural or natural resources;
(f) the term "secondary poisoning effect" means the
result attributable to the field use of a chemical
toxicant that, when ingested, inhaled, absorbed, or when
applied to or injected into an animal, is retained
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GUIDELINES AND REPORTS 869
in the animal's tissue, or is otherwise retained
by the animal, in such a manner and quantity that
the tissue itself or the retaining part, through
the chemical action of the chemical toxicant, may
cause significant injury or illness, or death to man
or other animals if ingested by them;
(g) the term "field use" means any use on rural
lands not in or immediately adjacent to occupied
buildings; and
(h) the term "animal" includes mammals, birds
and reptiles.
SEC. 3. (a) In order to assist the States in
controlling damage caused by predatory and depre-
dating animals, and in order to encourage the use
by States of animal damage control methods which are
consistent with accepted principles of wildlife manage-
ment and the maintenance of environmental quality,
the Secretary of the Interior (hereinafter referred
to as the "Secretary") is authorized to conduct
directly or by agreement with qualified agencies or
institutions, public and private, a program of
research which shall concern the management and
conservation of predatory and depredating animals and
the abatement of damage caused by such animals. Research
objectives, and the program of research authorized by
this subsection, shall be developed by the Secretary
in cooperation with the affected States.
(b) The program of research authorized by
subsection (a) hereof shall include, but need not be
limited to (1) the testing of methods in use for the
management and control of predatory and depredating
animals and the abatement of damage caused by such
animals; (2) the development of effective methods
for management and control of predatory and depre-
dating animals, which methods shall contribute to
the maintenance of environmental quality and
conserve, to the greatest degree possible, the
Nation's wildlife resources, including predatory
and depredating animals; (3) the improvement of
techniques for and the maintenance of a continuing
inventory, in cooperation with the States, of
the Nation's predatory and depredating animals;
(4) the development of methods for and the
identification of losses caused by predatory and
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870 LEGAL COMPILATION—SUPPLEMENT n
depredating animals; and (5) the development of means
"by Which to disseminate to States the findings of
studies conducted pursuant to this section.
(c) The Secretary is authorized to conduct
such demonstrations of methods developed pursuant
to subsection (b) and to provide such other extension
services as may be reasonably requested by the
State.
SEC. 4. (a) In furtherance of the purposes of
this Act, the Secretary is authorized to provide finan-
cial assistance to any State, on an annual basis, for
administration by the State of a program for the
management of predatory and depredating animals. To
qualify for assistance under this section, any such
State program must be reviewed by the State agency
designated for wildlife management and be found by the
Secretary to meet such standards as he may, by regula-
tion, establish: Provided, however, That the Secretary
shall not approve any such State program which (1)
proposes to use funds derived under this section for
the payment of bounties, (2) entails the field use of
any chemical toxicant for the purpose of killing pre-
datory animals, or (3) entails the field use of any
chemical toxicant that causes any secondary poisoning
effect, for the purpose of killing animals, including
but not limited to predatory or depredating animals:
Provided further, however, That he may approve a
State program which entails such emergency use of a
chemical toxicant, including use of a chemical toxi-
cant that causes a secondary poisoning effect, as he
may authorize, for the protection of human health or
safety, for the preservation of one or more fish or
wildlife species or subspecies threatened with
extinction throughout all or a significant portion of
its range or likely within the foreseeable future to
become so threatened, or for the prevention of substan-
tial irretrievable damage to nationally significant
resources.
(b) An annual payment under subsection (a) hereof
may be made to any State in such amount as the Secre-
tary may determine: Provided, however, That no such
annual payment shall exceed an amount equal to 75 per-
cent in each of the first two years or 50 percent in
each of the succeeding fiscal years of the cost of
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GUIDELINES AND REPORTS 871
the program approved under subsection (a) hereof:
And Provided further. That no such annual payment to
any State shall exceed $300,000 in each of the first
two fiscal years following enactment, or $200,000
in each of the succeeding fiscal years following
enactment. No payment otherwise authorized by this
section shall be made to a State whose share, in
whole or part, of the cost of the program approved
under subsection (a) hereof is to be paid from funds
not appropriated or otherwise authorized by its
legislature: Provided, however, That not more than
10 percent of the State share may be from funds
derived from sale of hunting, fishing and trapping
licenses or permits.
(c) The Secretary may at the request of a State
which proposes a program under subsection (a) hereof
conduct such operational programs for the control of
predatory and depredating animals as he may deem
necessary or desirable. Such operational assistance
may be terminated in a State not having statutory
authority to implement a program under subsection (a)
hereof not earlier than 120 days after adjournment of
the first regular legislative session of such State
which follows enactment hereof.
(d) The head of a Federal department, agency, or
establishment may cooperate with a State in the con-
duct of a mutually acceptable program for the manage-
ment of predatory and depredating animals on lands
subject to his jurisdiction: Provided, That such pro-
gram is reviewed by the State agency designated for
wildlife management: And Provided further. That such
program is otherwise consistent with the provisions
of this Act.
SEC. 5. (a) No person shall (1) make field use
of any chemical toxicant on any Federal lands for the
purpose of killing predatory animals; or (2) make
field use on such lands of any chemical toxicant that
causes any secondary poisoning effect, for the purpose
of killing animals, including but not limited to pre-
datory or depredating animals: Provided, however,
That nothing in this section shall be deemed to affect
the administration of lands held in trust for Indians.
(b) Notwithstanding subsection (a) hereof, the
head of a Federal department, agency, or establishment
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872 LEGAL COMPILATION—SUPPLEMENT 11
may authorize on lands subject to his administrative
jurisdiction the emergency field use of a chemical
toxicant for the purpose of killing predatory animals
or of a chemical toxicant that causes a secondary
poisoning effect, for the purpose of killing animals,
but only if in each specific case he makes a written
finding, following consultation with the Secretaries
of the Interior, Agriculture, and Health, Education,
and Welfare, and the Administrator of the Environmental
Protection Agency, that an emergency exists that can-
not be dealt with by means which do not involve use of
chemical toxicants, and that such use is essential—
(1) to the protection of human health or safety;
(2) to the preservation of one or more fish or
wildlife species or subspecies threatened with
extinction throughout all or a significant
portion of its range or likely within the
foreseeable future to become so threatened; or
(3) to the prevention of substantial irretrievable
damage to nationally significant resources.
(c) Any person who willfully violates this sec-
tion or any regulation promulgated under this section,
shall be fined not more than $10,000 or imprisoned for
not more than one year, or both.
SEC. 6. Heads of Federal departments, agencies,
or establishments are hereby authorized to issue such
regulations as may be necessary to carry out the
purposes of this Act.
SEC. 7. There is hereby repealed in its entirety
the Act of March 2, 1931 (46 Stat. 1468; 7 U.S.C. 426-
426 (b)), pertaining to the eradication and control of
predatory and other wild animals.
SEC. 8. Prior to five years from the date of
enactment, the Secretary shall submit to the President
and the Congress a report which evaluates the status
of the programs authorized by this Act and makes such
recommendations concerning these programs as he deems
appropriate.
SEC. 9. Nothing in this Act shall be construed
as superseding or limiting the authorities and respon-
sibilities of the Administrator of the Environmental
Protection Agency under the Federal Insecticide,
Fungicide, and Rodenticide Act (61 Stat. 973) as
amended (7 U.S.C. 135 et seq.).
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GUIDELINES AND REPORTS 873
SEC. 10. Nothing in this Act shall be construed
as superseding or limiting the authorities and respon-
sibilities of the Secretary under the Migratory Bird
Treaty Act (40 Stat. 755-757) as amended (16 U.S.C.
703-711), under the Fish and Wildlife Act of 1956
(70 Stat. 1119-1124) as amended (16 U.S.C. 742), or
under the Act of December 15, 1971 (85 Stat. 649-651,
16 U.S.C. 1331-1340), dealing with the protection,
management, and control of wild horses and burros on
the public lands.
SEC. 11. There is hereby authorized to be appro-
priated such sums as may be necessary to carry out the
purposes of this Act.
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874 LEGAL COMPILATION—SUPPLEMENT n
FEDERAL ANIMAL DAMAGE ABATEMENT ACT OF L973
SECTION-BY-SECTION ANALYSIS
1. Short Title
Section 1 of the bill would cite this Act as the "Federal
Animal Damage Abatement Act of 1973".
2. Definitions
Section 2 provides definitions of the following terms:
person. State, chemical toxicant, predatory animal,
depredating animal, secondary poisoning effect, field
use, and animal.
The term "chemical toxicant" means a chemical sub-
stance which when ingested, inhaled, or absorbed, or when
applied to or injected into the body, even in relatively
small amounts, may by its chemical action cause signifi-
cant illness or injury, or death, to animals (including
mammals, reptiles, and birds) or man. The term does not
include chemical substances that operate by interfering
with reproduction, attracting or repelling animals, or
depleting the oxygen temporarily within a restricted area
thus causing death by asphyxication,,
The term "predatory animal" means any wild mammal
which habitually preys on other animals.
The term "depredating animal" means any non-preda-
tory wild mammal, which may cause damage to agricultural
or natural resources, but the term does not include
even-toed ungulates such as deer, elk, moose and Mountain
goats.
The term "secondary poisoning effect" means the
result attributable to the field use of a chemical toxi-
cant that is retained in the flesh or other parts of an
animal in such manner as to, through the chemical action
of the toxicant, cause significant illness or injury or
death to men or animals (including mammals, birds, and
reptiles) if they ingest that flesh.
The term "animal" includes mammals, birds, and
reptiles, except as used in sections 2(d) and (e) where
the term is specifically confined to mammals.
3= Research Program
Section 3 authorizes the Secretary of the Interior to
conduct directly or by agreement with agencies or
institutions a research program on the management and
conservation of predatory and depredating animals, and
on the abatement of damage caused by them. The research
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GUIDELINES AND REPORTS 875
program is to be developed in cooperation with the
affected States.
Subsection (b) of section 3 provides that the re-
search program shall include (1) the testing of existing
methods and the development of new methods for management
and control of predatory and depredating animals and for
abatement of damage caused by them; (2) the development
and maintenance of a continuing inventory of these
animals; (3) the development of methods for identification
and the identification of losses caused by them; and (4)
the development of means to disseminate information ob-
tained by the studies to the States. Subsection (c)
authorizes the Secretary to demonstrate methods developed
by the research program and provide other extension ser-
vices requested by the States.
4. Financial assistance to States
Section 4 authorizes the Secretary to provide finan-
cial assistance, on an annual basis, to a State for admin-
istration of a program for management of predatory and de-
predating animals. The State program must be reviewed by
the State agency designated for wildlife management and
must be found by the Secretary to meet such standards as
he may by regulation establish. No program may be ap-
proved which proposes to use funds obtained under section
4 for payment of bounties; or which entails field use of
a chemical toxicant to kill predatory animals or entails
field use of any chemical toxicant with secondary poi-
soning effects for the purpose of killing any animals.
A State program may be approved, however, which entails
such emergency use of chemical toxicants as the Secretary
may authorize, in order to protect human health and safety,
preserve endangered species, or prevent substantial irre-
trievable damage to nationally significant resources.
Subsection (b) of section 4 provides that grant pay-
ments to the States under section 4(a) may not exceed
75% of the cost of the program in the first 2 years
following enactment, or 50% of the cost in succeeding
years. No annual payment to a State may exceed $300,000
in each of the first 2 years following enactment, or
$200,000 in the succeeding years. The State share must
be paid from funds authorized by the State legislature,
except that 10% of the State share may come from sale of
hunting, fishing, and trapping licenses or permits.
Subsection (c) provides that, at the request of a
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876 LEGAL COMPILATION—SUPPLEMENT n
State which proposes a program under subsection (a), the
Secretary may conduct operational programs to control
predatory and depredating animals. It is expected, how-
ever, that operational assistance will be terminated,
except in emergency situations, after an interim period
during which State programs approved under subsection (a)
are being started. The Secretary is not to terminate
operational programs in a State which does not have
statutory authority to conduct such a program until the
State has had an opportunity to obtain such authority;
however, 120 days after the close of the first regular
legislative session of the State following enactment, the
Secretary may terminate operational programs in States
which have not yet obtained authority to carry out section
4(a) programs.
Subsection (d) of section 4 authorizes cooperative
Federal-State programs for management of predatory and
depredating animals on Federal lands. Such a cooperative
program between a Federal agency and a State must be
reviewed by the State wildlife management agency, and
must be consistent with the provisions of the Act.
5. Prohibitions on use of chemical toxicants on public
lands
Section 5 provides criminal penalties for (1) field use
of any chemical toxicant on any Federal lands to kill pre-
datory animals, and (2) field use on these lands of any
chemical toxicant which causes any secondary poisoning
effect—including a secondary poisoning effect on mammals,
birds, and reptiles—for the purpose of killing animals,
including mammals, birds, and reptiles. Nothing in
section 5, however, is deemed to affect administration of
lands held in trust for Indians.
Such use of chemical toxicants is permitted however
if, in each case, the head of the Federal department
whose lands are involved, makes a written finding, after
consultation with the Secretaries of Agriculture,
Interior, and Health, Education, and Welfare, and the
Administrator of the Environmental Protection Agency,
that an emergency exists which cannot be dealt with by
means that do not involve chemical toxicants and that
such use is essential to (1) protect human health and
safety; (2) preserve fish or wildlife species or sub-
species threatened with extinction throughout all or a
significant portion of its range or likely within the
510
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GUIDELINES AND REPORTS 877
foreseeable future to become so threatened; or (3) pre-
vent substantial irretrievable damage to nationally signi-
ficant resources.
The criminal penalty for willful violation of
section 5, or regulations promulgated under it, is a
$10,000 fine, imprisonment for not more than 1 year, or
both*
6. Rule-making authority
Section 6 provides that regulations may be promulgated as
may be necessary to carry out the purposes of the Act.
7. Repeal
Section 7 repeals the Act of March 2, 1931, which directs
the Secretary to conduct programs to eradicate and con-
trol predatory and other wild animals.
8. Report to President and the Congress
Section 8 provides that prior to five years from enact-
ment, the Secretary shall report, to the President and
the Congress, evaluating the status of programs authorized
by this Act and making recommendations as he deems appro-
priate.
9. Statutory Construction of other legislation
Sections 9 and 10 provide that nothing in this bill is to
be construed as limiting the authority and responsibility
of the Administrator of the Environmental Protection
Agency under the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended, or of the Secretary under
the Migratory Bird Treaty Act, as amended, or the Fish
and Wildlife Act of 1956, as amended, or of the Secretary
or the Secretary of Agriculture under the Act of December
15, 1971, dealing with protection, management, and con-
trol of wild horses and burros on the public lands.
10. Appropriation authorizat ion
Section 11 provides that there are authorized to be
appropriated such sums as may be necessary to carry out
the purposes of the bill.
511
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GUIDELINES AND REPORTS 879
Protecting
Our Natural Heritage
\Vilderness Areas
513
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GUIDELINES AND REPORTS 881
DEPARTMENT OF AGRICULTURE
OFFICE OF THE SECRETARY
WASHINGTON, D. C. 2O2SO
February 21, 1973
Honorable Spiro T. Agnew
President of the Senate
United States Senate
Washington, D. C. 20510
Honorable Carl Albert
Speaker of the House
of Representatives
Washington, D. C. 20515
Dear Mr. [President/Speaker]:
Transmitted herewith for the consideration of the
Congress is a draft bill "To provide for the addition
of certain eastern national forest lands to the
National Wilderness Preservation System, to amend
Section 3(b) of the Wilderness Act, and for other
purposes."
The Department of Agriculture strongly recommends that
the draft legislation be enacted by the Congress.
This proposed draft legislation, the Eastern Wilderness
Amendments of 1973, would provide a means for supple-
menting the National Wilderness Preservation System
within National Forests east of the one hundredth merid-
ian. It would permit inclusion in the Wilderness System
certain National Forest lands in the eastern United
States which were once significantly affected by man's
works, but where the imprint of man's work is substan-
tially erased, and which have generally reverted to a
natural appearance.
The Act would also specifically provide for the review
of fifty-three listed areas for possible addition to the
System. With respect to approximately one-fourth of
these fifty-three "study" areas, the Forest Service has
completed many of the studies and procedures needed to
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882 LEGAL COMPILATION—SUPPLEMENT n
make specific recommendations on their suitability for
inclusion in the Wilderness System. We believe analyses
and interagency reviews of these areas should be at
least analogous to those contemplated for National
Forest Primitive Areas by the Wilderness Act. We expect
to complete this review process soon and will be in a
position to present further recommendations in the near
future.
The Act would further provide that all National Forest
System units east of the one hundredth meridian would be
generally managed in accordance with the provisions of
the Wilderness Act. Notable exceptions would be that the
condemnation limitation of the Wilderness Act would not
apply to eastern units, all Federal lands within such
units would be withdrawn from appropriation or disposi-
tion under the mining and mineral leasing laws, and
commercial grazing would not be permitted in such units.
Although the need for acquisition of private lands in
eastern National Forests results from fragmented owner-
ship patterns, we intend to use the condemnation
authority sparingly.
In his February 8, 1972, message on the environment.
President Nixon highlighted the unequal distribution of
wilderness units throughout the Nation. The President
directed the Secretaries of Agriculture and the Interior
to accelerate identification of areas in the eastern
United States having wilderness potential.
In response to this directive, the Forest Service has
invited public input on several alternative ways of
meeting eastern needs for areas such as those included
in the National Wilderness Preservation System. A series
of public listening sessions was held in 21 eastern
states in the summer of 1972, to discuss the issues
raised by these alternatives. This proposed legislation
represents an assessment of the input from those meetings
and recommendations to further the President's directive.
An environmental statement is being prepared pursuant to
the provisions of subsection 102 (2)(c) of the National
Environmental Policy Act (83 Stat. 853), and will be
transmitted as soon as it is available.
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GUIDELINES AND REPORTS 883
A similar letter is being sent to the [Speaker of the
House of Representatives/President of the Senate].
The Office of Management and Budget advises there is no
objection to the submission of this report and that
enactment of this proposed legislation would be in
accord with the program of the President.
Sincerely,
/s/ J. Phil Campbell
Under Secretary
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884 LEGAL COMPILATION—SUPPLEMENT n
S. 938
H.R. 5116
A BILL
To provide for the addition of certain eastern
national forest lands to the National Wilderness
Preservation System, to amend Section 3(b) of the
Wilderness Act, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America _in Congress
Assembled, That this Act may be cited as "The Eastern
Wilderness Amendments of 1973."
SEC. 2. (a) The Secretary of Agriculture shall review
each area listed in subsection (b) of this section as to
its suitability or nonsuitability for preservation as a
part of the National Wilderness Preservation System in
accordance with the criteria specified by subsection
3 (b) (2) of the Wilderness Act, as added by this Act. In
conducting his review, the Secretary shall comply with
the provisions of subsection 3(d) of the Wilderness Act
of September 3, 1964 (78 Stat. 892, 16 U.S.C. 1132(d)),
and upon transmittal of the Secretary of Agriculture's
recommendations to the President, the President shall
advise the Senate and House of Representatives of his
recommendations with respect to designation as wilderness
of the areas reviewed by the Secretary of Agriculture.
(b) The following areas, as generally
depicted on maps appropriately referenced, dated
February, 1973, and on file and available for public
inspection in the Office of the Chief, Forest Service,
Department of Agriculture, are hereby designated for
review by the Secretary of Agriculture,as to their suit-
ability or nonsuitability for designation as additions
to the National Wilderness Preservation System:
(1) the area generally depicted on a map
entitled "Sipsey Wilderness Study Area," Bankhead
National Forest, Alabama, comprising approximately nine
thousand, four hundred acres.
(2) the area generally depicted on a map
entitled "Belle Star Cave Wilderness Study Area,"
Ouachita National Forest, Arkansas, comprising approxi-
mately five thousand, seven hundred acres.
(3) the area generally depicted on a map
entitled "Caney Creek Wilderness Study Area," Ouachita
National Forest, Arkansas, comprising approximately ten
thousand, two hundred acres.
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GUIDELINES AND REPORTS 885
(4) the area generally depicted on a map
entitled "Dry Creek Wilderness Study Area, '' Ouachita
National Forest, Arkansas, comprising approximately five
thousand, five hundred acres.
(5) the area generally depicted on a map
entitled "Upper Buffalo River Wilderness Study Area,"
Ozark National Forest, Arkansas, comprising approximately
ten thousand, six hundred acres.
(6) the area generally depicted on a map
entitled "Richland Creek Wilderness Study Area," Ozark
National Forest, Arkansas, comprising approximately two
thousand, one hundred acres.
(7) the area generally depicted on a map
entitled "Bradwell Bay Wilderness Study Area,"
Apalachicola National Forest, Florida, comprising approx-
imately twenty-two thousand acres.
(8) the area generally depicted on a map
entitled "Alexander Springs Wilderness Study Area,"
Ocala National Forest, Florida, comprising approximately
ten thousand acres.
(9) the area generally depicted on a map
entitled "Cohutta Wilderness Study Area," Chattahoochee
and Cherokee National Forests, Georgia and Tennessee,
comprising approximately thirty-four thousand, five
hundred acres.
(10) the area generally depicted on a map
entitled "Nebo Ridge Wilderness Study Area," Hoosier
National Forest, Indiana, comprising approximately
fifteen thousand, five hundred acres.
(11) the area generally depicted on a map
entitled "LaRue-Pine Hills Wilderness Study Area,"
Shawnee National Forest, Illinois, comprising approxi-
mately two thousand, eight hundred acres.
(12) the area generally depicted on a map
entitled "Lusk Creek Wilderness Study Area," Shawnee
National Forest, Illinois, comprising approximately
eleven thousand acres.
(13) the area generally depicted on a map
entitled "Beaver Creek Wilderness Study Area," Daniel
Boone National Forest, Kentucky, comprising1 approximately
five thousand, five hundred acres.
(14) the area generally depicted on a map
entitled "Kisatchie Hills Wilderness Study Area,"
Kisatchie National Forest, Louisiana, comprising
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886 LEGAL COMPILATION—SUPPLEMENT n
approximately ten thousand acres.
(15) the area generally depicted on a map
entitled "Saline Bayou Wilderness Study Area," Kisatchie
National Forest, Louisiana, comprising approximately five
thousand acres.
(16) the area generally depicted on a map
entitled "Big Island Lake Wilderness Study Area,"
Hiawatha National Forest, Michigan, comprising approxi-
mately six thousand, six hundred acres.
(17) the area generally depicted on a map
entitled "Rock River Canyon Wilderness Study Area,"
Hiawatha National Forest, Michigan, comprising approxi-
mately five thousand, four hundred acres.
(18) the area generally depicted on a map
entitled "Sturgeon River Wilderness Study Area," Ottawa
National Forest, Michigan, comprising approximately
thirteen thousand, two hundred acres.
(19) the area generally depicted on a map
entitled "Bell Mountain Wilderness Study Area," Clark
National Forest, Missouri, comprising approximately ten
thousand, two hundred acres.
(20) the area generally depicted on a map
entitled "Rock Pile Mountain Wilderness Study Area,"
Clark National Forest, Missouri, comprising approximately
nine thousand acres.
(21) the area generally depicted on a map
entitled "Hercules Wilderness Study Area," Mark Twain
National Forest, Missouri, comprising approximately
sixteen thousand, six hundred acres.
(22) the area generally depicted on a map
entitled "White's Creek Wilderness Study Area," Mark
Twain National Forest, Missouri, comprising approximately
nineteen thousand, one hundred acres.
(23) the area generally depicted on a map
entitled "Caribou Mountain-Speckled Mountain Wilderness
Study Area," White Mountain National Forest, New
Hampshire, comprising approximately twelve thousand
acres.
(24) the area generally depicted on a map
entitled "Car Mountain Wilderness Study Area," White
Mountain National Forest, New Hampshire, comprising
approximately ten thousand acres.
(25) the area generally depicted on a map
entitled "Kilkenny Wilderness Study Area," White
520
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GUIDELINES AND REPORTS 887
Mountain National Forest, New Hampshire, comprising
approximately sixteen thousand acres.
(26) the area generally depicted on a map
entitled "Presidential Range Wilderness Study Area,"
White Mountain National Forest, New Hampshire, comprising
approximately forty thousand acres.
(27) the area generally depicted on a map
entitled "Wild River Wilderness Study Area," White
Mountain National Forest, New Hampshire, comprising
approximately twenty thousand acres.
(28) the area generally depicted on a map
entitled "Craggy Mountain Wilderness Study Area," Pisgah
National Forest, North Carolina, comprising approximately
one thousand, one hundred acres.
(29) the area generally depicted on a map
entitled "Pocosin Wilderness Study Area," Croatan
National Forest, North Carolina, comprising approximately
seventeen thousand acres.
(30) the area generally depicted on a map
entitled "Clear Fork Wilderness Study Area," Wayne
National Forest, Ohio, comprising approximately nineteen
thousand acres.
(31) the area generally depicted on a map
entitled "Ellicott's Rock Wilderness Study Area," Sumter
National Forest, South Carolina, comprising approximately
three thousand, six hundred acres.
(32) the area generally depicted on a map
entitled "Wambaw Swamp Wilderness Study Area," Francis
Marion National Forest, South Carolina, comprising approx-
imately one thousand, five hundred acres.
(33) the area generally depicted on a map
entitled "Big Frog Wilderness Study Area," Cherokee
National Forest, Tennessee, comprising approximately
three thousand acres.
(34) the area generally depicted on a map
entitled "Gee Creek Wilderness Study Area," Cherokee
National Forest, Tennessee, comprising approximately one
thousand, one hundred acres.
(35) the area generally depicted on a map
entitled "Joyce Kilmer-Slickrock Wilderness Study Area,"
Cherokee and Nantahala National Forests, Tennessee and
North Carolina, comprising approximately fifteen thousand
acres.
(36) the area generally depicted on a map
521
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888 LEGAL COMPILATION—SUPPLEMENT n
entitled "Big Slough Wilderness Study Area," Davy
Crockett National Forest, Texas, comprising approxi-
mately four thousand acres.
(37) the area generally depicted on a map
entitled "Chambers Ferry Wilderness Study Area," Sabine
National Forest, Texas, comprising approximately four
thousand acres.
(38) the area generally depicted on a map
entitled "Bristol Cliffs Wilderness Study Area," Green
Mountain National Forest, Vermont, comprising approxi-
mately four thousand, nine hundred acres.
(39) the area generally depicted on a map
entitled "Lye Brook Wilderness Study Area," Green
Mountain National Forest, Vermont, comprising approxi-
mately nine thousand, one hundred acres.
(40) the area generally depicted on a map
entitled "James River Face Wilderness Study Area,"
Jefferson National Forest, Virginia, comprising approxi-
mately eight thousand, eight hundred acres.
(41) the area generally depicted on a map
entitled "Laurel Fork Wilderness Study Area," George
Washington and Monongahela National Forests, Virginia and
West Virginia, comprising approximately eight thousand,
three hundred acres.
(42) the area generally depicted on a map
entitled "Mill Creek Wilderness Study Area," Jefferson
National Forest, Virginia, comprising approximately four
thousand acres.
(43) the area generally depicted on a map
entitled "Mountain Lake Wilderness Study Area,"
Jefferson National Forest, Virginia, comprising approxi-
mately eight thousand, four hundred acres.
(44) the area generally depicted on a map
entitled "Peters Mountain Wilderness Study Area,"
Jefferson National Forest, Virginia, comprising approxi-
mately five thousand acres.
(45) the area generally depicted on a map
entitled "Ramsey Draft Wilderness Study Area," George
Washington National Forest, Virginia, comprising approxi-
mately six thousand, seven hundred acres.
(46) the area generally depicted on a map
entitled "Cranberry wilderness Study Area," Monongahela
National Forest, West Virginia, comprising approximately
thirteen thousand, two hundred acres.
522
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GUIDELINES AND REPORTS 889
(47) the area generally depicted on a map
entitled "Dolly Sods Wilderness Study Area," Monongahela
National Forest, West Virginia, comprising approximately
ten thousand, two hundred acres.
(48) the area generally depicted on a map
entitled "Otter Creek Wilderness Study Area," Monongahela
National Forest, West Virginia, comprising approximately
eighteen thousand acres.
(49) the area generally depicted on a map
entitled "Black Jack Springs Wilderness Study Area,"
Nicolet National Forest, Wisconsin, comprising approxi-
mately two thousand, six hundred acres.
(50) the area generally depicted on a map
entitled "Flynn Lake Wilderness\Study Area," Chequamegon
National Forest, Wisconsin, comprising approximately
six thousand, three hundred acres.
(51) the area generally depicted on a map
entitled "Rainbow Lake Wilderness Study Area,"
Chequamegon National Forest, Wisconsin, comprising approx-
mately six thousand, six hundred acres.
(52) the area generally depicted on a map
entitled "Whisker Lake Wilderness Study Area," Nicolet
National -Forest, Wisconsin, comprising approximately two
thousand, seven hundred acres.
(53) the area generally depicted on a map
entitled "El Cacique Wilderness Study Area," Caribbean
National Forest, Puerto Rico, comprising approximately
eight thousand, five hundred acres.
(c) The areas listed in subsection (b) of
this section shall be managed by the Secretary of
Agriculture so as to maintain their potential for inclu-
sion in the National wilderness Preservation System until
Congress has acted on a recommendation that the area be
included in the Wilderness System, or until the President
has determined that the area should not be included in
the System.
SEC. 3. Section 3 (b) of the Wilderness Act (78 Stat.
891, 16 U.S.C. 1132 (b)), is hereby amended by redesig-
nating said section as subsection 3 (b) (1) and by adding
the following as subsection 3 (b) (2)•
"(2) The Secretary of Agriculture may, through pub-
lication in the Federal Register, designate national
forest system areas other than those specified in sub-
section (b) (1) of this section, for review as to
523
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890 LEGAL COMPILATION—SUPPLEMENT 11
suitability or nonsuitability for preservation as
wilderness pursuant to the criteria set forth in
section 2(c) of this Act: Provided, That only within
those national forest system units east of the one
hundredth meridian the Secretary of Agriculture may
consider for review areas where man and his own works
have once significantly affected the landscape but are
now areas of land (1) where the imprint of man's work
is substantially erased; (2) which has generally
reverted to a natural appearance; and (3) which can
provide outstanding opportunities for solitude or a
primitive and unconfined type of recreation. Nothing
in this subsection shall be construed as limiting the
authority of the Secretary to carry out management pro-
grams, development, and activities in accordance with
the Multiple Use-Sustained Yield Act of 1960 (74 Stat.
215, 16 U.S.C. 528-31) within areas not designated by
him for review in accordance with the provisions of this
subsection."
SEC. 4. Any national forest system areas east of
the one hundredth meridian heretofore or hereafter desig-
nated as wilderness shall be administered in accordance
with the provisions of the Wilderness Act governing areas
designated by that Act as wilderness areas, except that —
(a) subject to valid existing rights,
federally-owned lands within such national forest system
areas designated as components of the National Wilderness
Preservation System, or lands hereafter acquired within
the boundaries of such areas, are hereby withdrawn from
all forms of appropriation under the mining laws, and
from disposition under all laws pertaining to mineral
leasing and all amendments thereto.
(b) the Secretary of Agriculture may acquire
privately-owned lands or interests therein within such
national forest system areas heretofore or hereafter
designated as wilderness, without the consent of the
owner.
(c) subject to valid existing rights, the
commercial grazing of livestock shall not be permitted
within such wilderness areas.
(d) nothing in this Act shall apply to manage-
ment of the Boundary Waters Canoe Area, Superior National
Forest, Minnesota, which shall continue to be managed in
accordance with applicable provisions of law in effect on
the date of this Act.
524
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GUIDELINES AND REPORTS 891
Protecting
Our Natural Heritage
Wild and
Scenic Rivers
525
-------
-------
GUIDELINES AND REPORTS 893
THE SECRETARY OF THE INTERIOR
WASHINGTON
February 15, 1973
Dear Mr. [President/Speaker]:
Enclosed is a draft of a proposed bill "To Amend the
Wild and Scenic Rivers Act", to which the President
refers in his Environment and Natural Resources State
of the Union Message transmitted to you today.
We recommend that the bill be referred to the appro-
priate committee for consideration, and we recommend
that it be enacted.
The draft bill amends sections 7(b) and 16 of the Wild
and Scenic Rivers Act of October 2, 1968 (82 Stat. 906,
914 and 918; 16 U.S.C. 1278 (b) and 1287).
The enclosed draft bill would extend the 5-year morato-
rium contained in section 7(b) of the Act for an
additional 5-year period, by which time we expect to
complete studies on all of the 27 river areas. Comple-
tion of these studies and implementation of resulting
management plans would assure the wise use of these
rivers and their immediate environments for this and
future generations of Americans.
The enclosed draft bill also amends section 16 of the
Wild and Scenic Rivers Act. Section 16 authorizes the
appropriation of not more than $17,000,000 for the
acquisition of the initial components of the National
Wild and Scenic Rivers System, of which some $16.9
million have been appropriated. The draft bill would
raise the appropriation authorization to $37,600,000,
the amount we estimate will be needed to complete
acquisitions at the river areas.
Our experience with the initial authorization tends to
confirm projections of the conferees on the original
Act, who recognized that the ceiling imposed by section
16 might well be inadequate.
527
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894 LEGAL COMPILATION—SUPPLEMENT n
The Office of Management and Budget has advised that
this legislative proposal is in accord with the program
of the President.
Sincerely,
/s/ Rogers C.B. Morton
Secretary of the Interior
Honorable Spiro T. Agnew
President of the Senate
Washington, D.C. 20510
Honorable Carl Albert
Speaker of the
House of Representatives
Washington, D.C. 20515
Enclosure
528
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GUIDELINES AND REPORTS 895
S. 921
H.R. 4864
A 13 !_ L ti
To amend the Wild and Scenic Rivers Act.
Be it enacted by the Senate and House of
Representatives of the United States Of America in
Congress assembled. That the Wild and Scenic Rivers
Act (82 Stat. 906) is amended as follows:
(a) In section 7 (b)(i) delete "five-year"
and substitute "ten-year".
(b) In section 16 delete "$17,000,000" and
substitute "$37,600,000."
529
-------
896 LEGAL COMPILATION—SUPPLEMENT n
ANALYSIS OF DRAFT BILL
Section 1 would amend section 7(b)(i) of the Wild
and Scenic Rivers Act to extend for an additional
5 years the existing 5-year moratorium on licensing
and construction along rivers now under study for
addition to the wild and scenic rivers system. The
existing moratorium expires October 2, 1973.
Section 2 would amend section 16 of that Act to
raise the appropriation authorization from $17
million to $37.6 million, for acquisition of lands
along rivers that are the initial components of the
wild and scenic rivers system. It is estimated
that the additional $20.6 million will be needed to
complete acquisition along these rivers.
530
-------
GUIDELINES AND REPORTS 897
DEPARTMENT OF AGRICULTURE
OFFICE OF THE SECRETARY
WASHINGTON, D. C. 2025O
January 29, 1973
Honorable Spiro T. Agnew
President of the Senate
Washington, D. C. 20510
Honorable Carl Albert
Speaker of the
House of Representatives
Washington, D. C. 20515
Dear Mr. [President/Speaker]:
Transmitted herewith for the consideration of the
Congress is a draft bill "To provide for study of a
certain segment of the Oklawaha River for potential
addition to the National Wild and Scenic Rivers
System."
The Department of Agriculture recommends that the
draft bill be enacted.
The draft bill would provide for study of the Oklawaha
River in accord with the provisions of the Wild and
Scenic Rivers Act.
On January 19, 1971, the President ordered the halt to
further construction of the Cross Florida Barge Canal
to prevent potentially serious environmental damages.
In his statement the President described the Oklawaha
River as "A natural treasure...a uniquely beautiful,
semi-tropical stream, one of a very few of its kind
in the United States..." The President also asked the
Secretary of the Army to work with the Council on
Environmental Quality in developing recommendations
for the future management of the area. On May 12,
1972, the Council on Environmental Quality and the
Department of Army presented joint recommendations
for the Cross Florida Barge Canal area. Following in
depth environmental studies, public hearings and
531
-------
898 LEGAL COMPILATION—SUPPLEMENT 11
reviews, it was recommended that the section of the
Oklawaha River between St. Johns River and Dead River
Swamp be designated as a study river for potential
inclusion in the National Wild and Scenic Rivers
System. The enclosed draft bill is intended to
implement this recommendation.
In connection with the recommendations of the Council
on Environmental Quality and the Department of Army,
the Forest Service of this Department prepared and
published a draft environmental statement relating to
management alternatives for the Oklawaha River area.
The Forest Service has reviewed and evaluated comments
on the draft statement and has prepared a final environ-
mental statement. The final environmental statement
evaluates the environmental impacts of a proposed
action which includes both administrative and legis-
lative action. This final environmental statement was
transmitted to the Council on Environmental Quality on
January 16, 1973.
The estimated cost for the proposed study of the
Oklawaha River for potential addition to the National
Wild and Scenic Rivers System is $175,000.
A similar letter is being sent to the [President of
the Senate/Speaker of the House of Representatives].
The Office of Management and Budget advises that there
is no objection to the presentation of this proposed
legislation from the standpoint of the Administration's
program.
Sincerely,
/s/ J. Phil Campbell
Acting Secretary
Enclosures
532
-------
GUIDELINES AND REPORTS 899
S. 883
H.R. 4469
A BILL
To provide for study of a certain segment of the
Oklawaha River for potential addition to the
National Wild and Scenic Rivers System.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Congress
assembled, That section 5(a) of the Act of October 2,
1968 (82 Stat. 910) is amended by adding the following
new subsection:
"(28) Oklawaha, Florida: The segment between the
Dead River Swamp downstream to its confluence with the
St. Johns River."
533
-------
-------
GUIDELINES AND REPORTS 901
Protecting
Our Natural Heritage
Big Cypress
National
Fresh ^^ater Reserve
535
-------
-------
GUIDELINES AND REPORTS 903
THE SECRETARY OF THE INTERIOR
WASHINGTON
February 15, 1973
Dear Mr. [President/Speaker]:
Enclosed is a draft of a bill "To authorize the
acquisition of the Big Cypress National Fresh Water
Reserve in the State of Florida, and for other purposes",
to which the President refers in his Environment and
Natural Resources State of the Union Message transmitted
to you today.
We recommend that the bill be referred to the appro-
priate committee for consideration, and we recommend
that it be enacted.
The bill authorizes the Secretary of the Interior to
acquire lands, waters, and interests therein within an
area depicted on a map on file with the Department.
The area to be acquired, consisting of not to exceed
522,000 acres of private land and approximately 48,000
acres of publicly owned land, is to be known as the Big
Cypress National Fresh Water Reserve.
The reserve is to be administered by the Secretary of
the Interior in accordance with the laws applicable to
the National Park System. However, the bill authorizes
the Secretary to enter into an agreement with the State
of Florida or a local government, pursuant to which it
may manage and administer the lands acquired for the
reserve, subject to the provisions and limitations of
the bill. The Secretary is directed to permit hunting,
fishing, and trapping within the reserve in accordance
with applicable State and Federal laws. Section 5 of
the bill authorizes the appropriation of such sums as
may be necessary, but not to exceed $156 million for
the acquisition of lands and interests therein.
Everglades National Park, authorized in 1934, represents
one of the most unique ecosystems in the world. The
537
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904 LEGAL COMPILATION—SUPPLEMENT n
biological values of the park however depend on fresh
water supplies, and considerably more than half of the
1,400,533 acres within the authorized boundaries is
dependent upon the Big Cypress for its supply of fresh
water.
A vital factor in the Big Cypress-Everglades ecosystem
is the almost imperceptible slope of the land. This
results in exceedingly slow drainage, which extends the
"wet months" well beyond the period of actual rainfall.
A water level change of only a few inches ofttimes
affects thousands of acres, and can seriously disrupt
the food chain on which the larger animals in the park
depend.
The Big Cypress Watershed serves as a natural water
storage area, and supplements the man-made storage
areas in conservation areas one, two, and three, that
are considered vital for the protection of an adequate
fresh water supply for south Florida.
Aside from its water supply benefits. Big Cypress is a
highly significant resource in itself. The Big Cypress
is a wilderness of sloughs, tree islands (Or hammocks),
and bay and cypress heads. Cypress dominates, and gives
the area its name. Large portions of Big Cypress have
so far experienced little man-made disturbance. Nearly
all the wildlife species native to semitropical Florida
are contained within the watershed. Big Cypress pro-
vides important feeding, nesting, and wintering areas,
as well as a resting place for migrating birds.
Acquisition of the Big Cypress Swamp would preserve
important habitat for at least nine species of wildlife
determined by the Secretary of the Interior to be
threatened with extinction. To species that have far
wider ranges, Big Cypress, along with the adjacent
Everglades National Park, serves as a stronghold or
retreat.
We urge the Congress to take early and favorable action
to authorize the Big Cypress National Fresh Water
Reserve, as proposed herein.
538
-------
GUIDELINES AND REPORTS 905
A draft of an environmental impact statement, prepared
in accordance with section 102(2)(C) of the National
Environmental Policy Act of 1969, was forwarded to your
Committee during the 92d Congress, by letter dated
February 4, 1972.
The Office of Management and Budget has advised that
the enactment of the enclosed bill would be in accord
with the Administration's program.
Sincerely,
/s/ Rogers C. B. Morton
Secretary of the Interior
Honorable Spiro T. Agnew
President of the Senate
Washington, D.C. 20510
Honorable Carl Albert
Speaker of the
House of Representatives
Washington, D.C. 20515
Enclosures
539
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906 LEGAL COMPILATION—SUPPLEMENT n
S. 920
H.R. 4866
A B_ !_ L L
To authorize the acquisition of the Big Cypress National
Fresh Water Reserve in the State of Florida, and
for other purposes.
Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled, That the Congress finds—
(a) the unique natural environment of the Big
Cypress area of southwestern Florida should be protected
from further development which would significantly and
adversely affect its ecology;
Cb) the Big Cypress is a fragile area, ecologically
interlocked with Everglades National Park and the
continued viability of Everglades National Park and
certain of the estuarine fisheries of south Florida are
directly dependent upon fresh water of adequate quality
and volume from the Big Cypress area; and
(c) appropriate measures must be taken by the
United States and the State of Florida to assure the
conservation of fresh water from the Big Cypress area.
It is, accordingly, the purpose of this Act to pro-
vide for the protection of the Big Cypress area and for
appropriate uses thereof through cooperative action by
the Federal Government and the State of Florida.
SEC. 2. In order to effectuate the purpose of this
Act the Secretary of the Interior (hereinafter referred
to as the "Secretary") is authorized to acquire by
donation, purchase with donated or appropriated funds,
transfer from any other Federal agency, or exchange,
lands, waters, and interests therein within the area
generally depicted on the map entitled "Boundary Map,
Big Cypress National Fresh Water Reserve, Florida",
numbered BC-91,001, and dated November 1971, which
shall be on file and available for public inspection
in the Office of the National Park Service, Department
of the Interior. The Secretary may from time to time
make minor revisions in the boundaries of the area by
publication of a revised map or other boundary
description in the Federal Register, and he may acquire
property within the revised boundaries in accordance
with the provisions of this section: Provided, That
the boundaries of the area may not encompass more than
540
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GUIDELINES AND REPORTS 907
522,000 acres of privately owned land. Property owned
by the State of Florida or any political subdivision
thereof may be acquired only by donation. Notwith-
standing any other provision of law. Federal property
within the boundaries of the area may, with the con-
currence of the head of the administering agency, be
transferred to the administrative jurisdiction of the
Secretary for the purposes of this Act, without a
transfer of funds.
SEC. 3. (a) The owner of improved property on the
date of its acquisition by the Secretary may, as a
condition of such acquisition, retain for himself and
his heirs and assigns a right of use and occupancy of
the improved property for noncommercial residential
purposes for a definite term of not more than twenty-
five years or, in lieu thereof, for a term ending at
the death of the owner or the death of his spouse,
whichever is later. The owner shall elect the term to
be reserved. Unless this property is wholly or
partially donated to the United States, the Secretary
shall pay the owner the fair market value of the
property on the date of acquisition less the fair market
value on that date of the right retained by the owner.
A right retained pursuant to this section shall be
subject to termination by the Secretary upon his deter-
mination that it is being exercised in a manner in-
consistent with the purposes of this Act, and it shall
terminate by operation of law upon the Secretary's
notifying the holder of the right of such determination
and tendering to him an amount equal to the fair market
value of that portion of the right which remains
unexpired.
(b) As used in this Act the term "improved property"
means a detached, one-family dwelling, construction of
which was begun before November 23, 1971, which is used
for noncommercial residential purposes, together with
not to exceed three acres of the land on which the
dwelling is situated, such land being in the same owner-
ship as the dwelling, together with any structures
accessory to the dwelling which are situated on such
land.
SEC. 4. The area within the boundaries depicted on
the map referred to in section 2, or as such boundaries
541
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908 LEGAL COMPILATION—SUPPLEMENT n
may be revised, shall be known as the Big Cypress
National Fresh Water Reserve, and it shall be adminis-
tered by the Secretary in accordance with the laws
applicable to the National Park System, and in a manner
consistent with the findings and purposes of this Act.
The Secretary is authorized to enter into an agreement
with the State of Florida, or any political subdivision
thereof having jurisdiction over the lands, waters, and
interests therein within the reserve, pursuant to which
such State or political subdivision may agree to manage
and administer any property acquired by the Secretary
pursuant to this Act for the purpose of protecting the
unique natural environment of the Big Cypress area.
Any such agreement shall contain provisions which, as
applied to the area within the reserve, will limit or
control the use of the lands and waters therein for
the purposes of motorized access, exploration for and
extraction of oil, gas, and other minerals, grazing,
draining or constructing works to alter the natural
water courses, agriculture, hunting, fishing, and
trapping, new construction of any kind, and such other
uses as the Secretary determines must be limited or
controlled in order to carry out the purpose of this
Act; Provided, however, that the Secretary shall consult
and cooperate with the Secretary of Transportation
to assure that necessary transportation facilities shall
be located within existing or reasonably expanded rights-
of-way and constructed within the reserve in a manner
consistent with the purposes of this Act.
SEC. 5. The Secretary shall permit hunting, fishing,
and trapping on lands and waters under his jurisdiction
within the reserve in accordance with the applicable
laws of the United States and the State of Florida,
except that he may designate zones where and periods
when no hunting, fishing, or trapping may be permitted
for reasons of public safety, administration, fish or
wildlife management, or public use and enjoyment.
Except in emergencies, any regulations prescribing such
restrictions shall be put into effect only after
consultation with the appropriate State agency having
jurisdiction over hunting, fishing, and trapping
activities. Notwithstanding this section or any other
provision of this Act, the Secretary may authorize
542
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GUIDELINES AND REPORTS 909
members of the Miccosukee Tribe of Indians of Florida
and members of the Seminole Tribe of Florida to continue
their customary use and occupancy of Federal lands and
waters within the reserve, including hunting, fishing
and trapping on a subsistence basis and traditional
tribal ceremonials.
SEC. 6. Notwithstanding any other provision of
law, before entering into any contract for the provision
of revenue-producing visitor services, the Secretary
shall provide those members of the Miccosukee and
Seminole Indian Tribes who on January 1, 1972, were
engaged in the provision of similar services, a reason-
able opportunity to continue providing such services
within the reserve in accordance with such terms and
conditions as he may by agreement, hereby authorized,
provide.
SEC. 7. There are authorized to be appropriated
such sums as may be necessary to carry out the
provisions of this Act, but not to exceed $156,000,000
for the acquisition of lands and interests therein.
543
-------
910 LEGAL COMPILATION—SUPPLEMENT n
BIG CYPRESS NATIONAL FRESH WATER RESERVE
Section-by-Section Analysis
Congressional findings
Section 1 contains Congressional findings concerning
the need to protect the Big Cypress area in southwestern
Florida and to provide for appropriate uses of it through
cooperative State-Federal action.
Acquisition authority
Section 2 authorizes the Secretary of the Interior
to acquire by donation, purchase, transfer from a Federal
agency, or exchange, lands, waters, and interests therein
as depicted on a map on file and available for inspection
in the National Park Service.
The Secretary may make minor boundary revisions by
publication in the Federal Register. The boundaries may
not, however, encompass more than 522,000 acres of
privately owned land, and land owned by state or local
governments may be acquired only by donation. Notwith-
standing any other provision of law, Federal property
within the boundaries may be transferred with the con-
currence of the head of the administering agency without
a transfer of funds.
Rights of owners of noncommercial property
Section 3 provides that the owner of improved property
may retain a right of use and occupancy of the improved
property for noncommercial residential purposes for a
limited period. Improved property means a detached, one-
family dwelling, construction of which was begun before
November 23, 1971, together with not to exceed three
acres of land on which the dwelling is situated. The
retained use period is either 25 years or a term ending
at the death of the owner or his spouse, whichever is
later. The purchase price will take into account the
value of any such retained right. The right of use and
occupancy may be terminated by the Secretary upon his
determination that it is being exercised in a manner
544
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GUIDELINES AND REPORTS 911
inconsistent to the purposes of this Act.
Administration
Section 4 provides that the area referred to in
section 2 shall be known as the Big Cypress National
Fresh Water Reserve. It is to be administered in
accordance with the laws applicable to the National
Park System, and with this Act. The Secretary may
agree with the State of Florida or a local government
to manage any property acquired by the Secretary pursu-
ant to this Act.
The agreement must contain provisions limiting or
controlling use of the area for purposes of motorized
access, exploration for and extraction of oil, gas,
and other minerals, grazing, draining or constructing
works to alter the natural water courses, agriculture,
hunting, fishing, and trapping, new construction of any
kind, and such other purposes as the Secretary deter-
mines must be limited or controlled to carry out the
purpose of this Act. The Secretary is to consult and
cooperate with the Secretary of Transportation to assure
that necessary transportation facilities shall be located
within existing or reasonably expanded rights of way and
constructed in a manner consistent with this Act.
Hunting, Fishing
Section 5 provides that the Secretary shall permit
hunting, fishing and trapping in the reserve, except he
may designate zones and periods where they will not be
permitted for reasons of public safety, administration,
fish and wildlife management, or public use and enjoy-
ment. Except in emergencies, the Secretary may not
prescribe such restrictions until he consults with the
State.
Indian Tribes
Section 5 also provides that members of the Miccosukee
and Seminole Tribes may be authorized by the Secretary to
continue their usual and customary use and occupancy of
Federal lands, including hunting, fishing, and trapping
545
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912 LEGAL COMPILATION—SUPPLEMENT n
on a subsistence basis, and traditional tribal ceremonials.
Section 6 provides that the Secretary, before enter-
ing into contracts for providing revenue-producing visitor
services, must provide members of these two tribes who
on January 1, 1972, were providing similar services,
a reasonable opportunity to continue to do so pursuant
to agreement with the Secretary.
Appropriation Authorization
There are authorized to be appropriated such sums
as are necessary to carry out the provisions of this
Act, but not to exceed $156 million for acquisition
of lands and interests in them.
546
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GUIDELINES AND REPORTS 913
Protecting
Our Natural Heritage
Protecting
Marine Fisheries
547
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GUIDELINES AND REPORTS 915
THE SECRETARY OF COMMERCE
WASHINGTON, DC. 2O23O
February 13, 1973
Honorable Spiro T. Agnew
President of the Senate
United States Senate
Washington, D. C. 20510
Honorable Carl Albert
Speaker of the House
of Representatives
Washington, D. C. 20515
Dear Mr. [President/Speaker]:
Enclosed are four copies of a draft bill
"To provide for the conservation and management
of fisheries and for other purposes,"
together with a statement of purpose and need in
support thereof and a sectiori-by-section analysis.
We estimate expenditures under this legislation
will approximate $100,000 annually during the
first five years.
We have been advised by the Office of Management
and Budget that there would be no objection to the
submission of this proposed'legislation to the
Congress from the standpoint of the Administration's
program.
Sincerely,
/s/ Frederick B. Dent
Secretary of Commerce
Enclosures
549
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916 LEGAL COMPILATION—SUPPLEMENT n
S. 1069
H.R. 4760
A BILL
To provide for the conservation and management of fisheries
and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress
assembled. That this Act may be cited as the "High Seas
Fisheries Conservation Act of 1973."
DEFINITIONS
SEC. 2. For the purposes of this Act, the term —
(a) "International Fishery Agreement" means any
bilateral or multilateral agreement to which the
United States is a party, dealing with fishery
management or conservation, but does not include
those provisions of any agreement which deal solely
with methods of enforcement at sea.
(b) "Contracting Party" means any government party
to an international fishery agreement;
(c) "Fishing" means the catching, taking, harvesting,
or attempted catching, taking or harvesting of any
species of fish for any purpose, and any activity
in support of such taking, catching or harvesting.
(d) "Fish" includes mollusks, crustaceans, marine
mammals (except polar bears, walrus, and sea otter)
and all other forms of marine animal or plant life,
exclusive of birds, including the Continental Shelf
fishery resource as defined in the Act of May 20,
1964 (78 Stat. 196);
(e) "Vessel" means every description of watercraft
or other contrivance which is used or is capable
of use on water for fishing purposes;
(f) "Owner or operator" means any individual, firm,
corporation, association, partnership, government
or government enterprise which owns, operates, or
charters a vessel;
(g) "Fisheries Zone" means the zone contiguous to
the territorial sea of the United States which was
established by the Act of October 14, 1966 (80 Stat.
908);
(h) "Secretary" means the Secretary of Commerce;
(i) "State" means the several States of the United
States; the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, and Guam;
(j) "Person" means any individual, corporation,
550
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GUIDELINES AND REPORTS 917
partnership, association, or organization.
REGULATIONS
SEC. 3. (a) The Secretary is authorized to promulgate
regulations governing fishing in the fisheries zone and
all high seas seaward of such zone by vessels of a party
to an international fishery agreement with the United
States, pursuant to and for the purposes of such agree-
ment.
(b) The Secretary is also authorized to promul-
gate regulations governing fishing in the fisheries zone
and all high seas seaward of such zone by vessels docu-
mented under the laws of the United States, or otherwise
registered under the laws of any State, for the purposes
of:
(i) fulfilling the international obli-
gations of the United States under any
international fishery agreement;
(ii) conserving and managing the fish
in such waters in such manner as the
Secretary determines will result in the
optimum overall nutritional, economic,
and social benefits; and
(iii) controlling or prohibiting the
fishing for fish which the Secretary
determines, in consultation with the
Food and Drug Administration, the
Environmental Protection Agency, and
State sanitation authorities, to be
unsanitary for the purpose for which they
are intended, on the basis of examination
of the fish or the water quality of the
marine environment from which such fish
were taken.
Regulations under paragraphs (ii) and (iii) of this
subsection (b) may designate zones where, and establish
periods when, no fishing shall be permitted; establish
size and catch limits for any species of fish; prohibit
the use of certain types of fishing gear, and prescribe
such other measures as the Secretary deems appropriate
to carry out such purposes. In making any determination
as to appropriate conservation and management measures,
the Secretary may take into account relevant economic
and social factors, and shall consider whether such
measures will unreasonably limit competition. The
551
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918 LEGAL COMPILATION—SUPPLEMENT n
Secretary may provide by regulation for the issuance
of permits related to and in furtherance of such
measures, except that such permits shall not be used
for revenue purposes.
(c) The promulgation of regulations under this
section shall be governed by the following rules:
(i) Before any regulations are promulgated
under this section, the Secretary shall,
to the extent practicable, consult with
other agencies, with the interested States,
with persons interested in the conservation
of fish in these waters, and in the enhance-
ment of all aspects of the marine fisheries
of the United States, for the purpose of
obtaining adequate information to develop
reasonable and effective regulations:
Provided, however, that insofar as such
regulations are applicable to foreign
vessels beyond the fisheries zone, the
Secretary shall consult with the Secretary
of State, and Provided further, that inso-
far as such regulations involve methods
and procedures for enforcement at sea, the
Secretary shall consult with the Secretary
of the Department in which the Coast Guard
is operating.
(ii) The Secretary shall publish in the
FEDERAL REGISTER the regulations which he
proposes to promulgate for all or part of
the waters of the fisheries zone and all
high seas seaward of such zone. Interested
persons shall be afforded a period of not
less than 30 days after such publication
within which to submit written data, views,
or comments. Except as provided in para-
graph (iii) of this subsection, the
Secretary may, after the expiration of
such period and after consideration of
all relevant matters presented, promul-
gate the regulations with such modifi-
cations, if any, as he deems appropriate.
(iii) On or before the last day of a period
fixed for the submission of written data,
views, or comments, any person who, or
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GUIDELINES AND REPORTS 919
State which, may be adversely affected by
such proposed regulations may file with the
Secretary written objections to the specific
provisions of such proposed regulations,
stating the grounds therefor, and may
request a public hearing on such objections.
If the Secretary determines that the person
filing objections may be adversely affected,
or if a State requests a hearing, the
Secretary shall not promulgate regulations
with respect to which such objections
have been filed until he has taken a
final action upon them as provided in
paragraph (iv) of this subsection.
(iv) As soon as practicable after the
period of filing objections has expired, if
the Secretary determines that the person
filing objections may be adversely affected,
or if a State requests a hearing, the
Secretary shall publish in the FEDERAL
REGISTER a notice specifying the time and
place at which a public hearing shall be
held, and the provisions of the regulations
to which such objections have been filed
and such other provisions as he may design-
ate for consideration and shall hold a
public hearing in accordance with 5 U.S.C.
553 for the purpose of receiving information
relevant to the matters identified in the
notice of hearing. If two or more persons
or States request hearings within the
prescribed period and the Secretary deems
such hearing appropriate, the Secretary
may, as he deems appropriate, consolidate
such hearings in the interests of time and
economy. At the hearing any interested
person or State may be heard. As soon as
practicable after the completion of the
hearing, the Secretary shall act upon such
objections and make his determinations
public and shall promulgate the regulations
with such modifications, if any, as he
deems appropriate.
(v) The Secretary may from time to time
553
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920 LEGAL COMPILATION—SUPPLEMENT n
revise such regulations in accordance with
the procedures prescribed in paragraphs (i)
through (iv) of this subsection.
(vi) Notwithstanding the provisions of
paragraphs (ii) through (v) of this sub-
section, the Secretary may waive the
requirements for notice and public hearing
detailed herein, if he finds (and incorpo-
rates the finding and a brief statement of
the reasons therefor in the publication of
the rule) that, due to an emergency situa-
tion, notice and hearing thereon are imprac-
ticable, unnecessary, or contrary to the
public interest. Written objections may be
submitted within 30 days of the effective
date of the emergency regulation. If any
such written objection is so received, the
Secretary shall, not later than 40 days
after the effective date of the emergency
regulation, initiate the procedures in
paragraphs (ii) through (iv). The emer-
gency regulation shall remain in effect for
90 days beyond the date on which the
Secretary publishes the notice of proposed
rulemaking required in paragraph (ii),
unless the Secretary terminates the
regulation by notice in the FEDERAL REGISTER
at any earlier date.
APPLICATION TO OTHER TREATIES, CONVENTIONS, AND LAWS
SEC. 4. The provisions of this Act shall be deemed
to be in addition to and not in contravention of the
provisions of any existing international fishery agree-
ment, or any statute implementing the same, which may
apply to the subject matter of this Act.
STATE REGULATIONS
SEC. 5.
(a) In the exercise of his powers under subsection
3(b), and subject to subsection (c) of this section, the
Secretary may, at any time, adopt as Federal regulations
the regulations of any State or group of States regarding
fishing adjacent to such State or States in the fisheries
zone or in all high seas seaward of such zone, if he finds
that such regulations will achieve the objectives of sub-
section 3(b), taking into account, as he deems appropriate,
554
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GUIDELINES AND REPORTS 921
uniformity with other regulations.
(b) Any regulations adopted pursuant to this section
shall become Federal regulations, and shall be subject
to modification, amendment, revision, or revocation in
the same manner as regulations adopted pursuant to
subsection 3(c) of this Act.
(c) For the purposes of subsection (a) of this
section, any State or group of States may submit
regulations to the Secretary for adoption. The Secretary
shall within 180 days indicate his approval or disapproval
of such regulations with notice thereof to the State
or group of States which submitted them. In the event
of disapproval, such notice shall specify the reason
therefor, and the State or group of States which
submitted the regulations shall be entitled, within 60
days of the receipt of notice of disapproval, to request
a hearing on the matter. All interested parties may be
heard at such hearing, and evidence may be offered. The
burden shall be on the State or group of States to
show that the regulations should be approved. Unless
the Secretary shall have indicated his disapproval
of such regulations within the 180-day period specified
above, he shall proceed promptly with respect to such
regulations in accordance with the procedures set forth
in subsection 3(c) of this Act.
(d) The Congress hereby consents to any compact
or agreement which is not in conflict with any law or
treaty in force of the United States, between any two
or more States for the purpose of preparing regulations
for submission to the Secretary in accordance with
this section. The right to alter, amend, or repeal
this subsection or the consent granted herein is
expressly reserved to the Congress.
AGREEMENTS WITH FOREIGN COUNTRIES
SEC. 6.
(a) The Secretary of State, in consultation with
the Secretary, and when appropriate, with the Secretary
of the Department in which the Coast Guard is operating,
may engage in negotiations with any contracting party
to the Convention on Fishing and Conservation of the
Living Resources of the High Seas in regard to measures
for the conservation of the living resources of the high
seas, when such negotiations are necessary to carry out
the purposes of articles 4, 6, 7, 8, and 12 of the
555
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922 LEGAL COMPILATION—SUPPLEMENT n
aforesaid Convention and with any contracting party to any
other international fishery agreement.
(b) The Secretary of State shall notify the Secretary
of receipt of the following pursuant to the aforesaid
Convention:
(1) Communications from the Director-General of
the Food and Agriculture Organization of the United
Nations, as provided in article 5(1) of the Con-
vention;
(2) Notice of the adoption of conservation measures
by any contracting party pursuant to article 7(1)
of the Convention;
(3) Notice of findings of a Special Commission
provided for by article 9 of the Convention;
(4) Notification of the withdrawal of a conservation
measure by the contracting party initially adopting
such measures; and
(5) All other communications related to the duties
of the Secretary under the Convention.
(c) The Secretary of State shall, upon notification
from the Secretary of the promulgation of regulations
pursuant to subsection 3(a) of this Act for waters of
the high seas seaward of the fisheries zone, notify the
Director-General of the Food and Agriculture Organization
of the United Nations and any Contracting party to the
aforesaid Convention whose nationals fish in the waters
covered by such regulations of their contents. The
Secretary of State, in consultation with the Secretary,
is authorized to enter into agreements with any con-
tracting party to the aforesaid Convention for the
implementation of regulations adopted by the United
States or by such contracting party pursuant to the
aforesaid Convention in waters beyond the respective
jurisdiction of any such contracting party. Such agree-
ments may provide for authorization of designated
personnel of a contracting party to act as enforcement
officers in implementing such regulations.
(d) The Secretary of State, in consultation with
the Secretary, may, with regard to the aforesaid
Convention:
(1) Enter into an agreement with any contracting
party for the establishment of a Special Commission
pursuant to article 9 of the Convention, and for
the payment of costs and expenses of such Special
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GUIDELINES AND REPORTS 923
Commission.
(2) Appoint the United States member to the Special
Commission; and
(3) Appoint, upon the request of any contracting
party to the Convention or upon the request of the
Secretary-General of the United Nations, members
to a Special Commission invoked to resolve a dispute
between contracting parties to the Convention and
to which dispute the United States is not a party.
PROHIBITIONS—PENALTIES
SEC. 7. In the case of vessels not documented under
the laws of the United States or otherwise registered
under the laws of any State, penalties or prohibitions
with respect to fishing in all high seas seaward of the
fisheries zone will only be applied if pursuant to and
for the purposes of an applicable international fishery
agreement.
(a) Any owner or operator of a vessel who knowingly
engages in fishing in violation of any regulation pursuant
to this Act shall, upon conviction, be fined not more
than $25,000, and for each subsequent offense of a
similar nature, in addition to a fine, the fish or the
fishing gear on board such vessel, or both, or the mone-
tary value thereof as determined by the court, may also
be ordered forfeited in whole or in part to the United
States or otherwise disposed of by the court.
(b) Whoever knowingly ships, transports, purchases,
sells, offers for sale, imports, exports, or has in
custody, possession or control any fish taken in viola-
tion of such regulations shall, upon conviction, be
fined not more than $5,000, and for each subsequent
offense of a similar nature, not more than $10,000.
(c) Whoever knowingly
(1) fails to make, keep, submit, or furnish
any record or report required by regulation
to be made, kept, submitted, or furnished;
(2) refuses to permit anyone authorized
pursuant to section 8 to board a vessel for
the purposes of inspecting the catch and
fishing gear, or resists any lawful arrest;
(3) refuses to permit anyone authorized
pursuant to section 8 to inspect any record
or report required by regulation to be made,
kept, submitted, or furnished, shall, upon
557
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924 LEGAL COMPILATION—SUPPLEMENT n
conviction, be fined not more than $10,000;
(d) Any vessel used in fishing in violation of any
regulation promulgated under this Act shall be liable
for a civil penalty of not more than $10,000. Such
penalty shall be assessed by the Federal District Court
in the District having jurisdiction over the vessel.
Clearance of a vessel against which a penalty has been
assessed, from a port of the United States may be with-
held until such penalty is paid or until a bond or
otherwise satisfactory surety is posted. Such penalty
shall constitute a maritime lien on such vessel which
may be recovered by action in rem in the Federal
District Court of the United States having jurisdiction
over the vessel.
ENFORCEMENT
SEC. 8. This section applies only under the express
terms of Section 3. For vessels other than those docu-
mented under the laws of the United States or otherwise
registered under the laws of any State, enforcement on
all high seas beyond the fisheries zone is authorized
only when pursuant to and for the purposes of an
applicable international fishery agreement.
(a) The provisions of this Act and the regulations
issued thereunder shall be enforced by the Secretary,
and the Secretary of the Department in which the Coast
Guard is operating. The Secretary and the Secretary of
the Department in which the Coast Guard is operating
may utilize by agreement, with or without reimbursement,
the personnel, services, and facilities of any other
Federal agency or, for the purpose of enforcement with
respect to any vessel in the fisheries zone, or, wherever
found, with respect to any vessel documented under the
laws of the United States or otherwise registered under
the laws of any State, any State agency, in carrying
out the provisions of this Act and the regulations issued
thereunder, including those relating to enforcement.
(b) Anyone authorized pursuant to subsection (a) of
this section to enforce the provisions of this Act and
the regulations issued thereunder may —
(1) Board and inspect any vessel documented
under the laws of the United States or other-
wise registered under the laws of any State
or any other vessel subject to the jurisdic-
tion of the United States pursuant to
558
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GUIDELINES AND REPORTS 925
subsection 3(a), and its catch and gear upon
the waters of the fisheries zone or upon all
high seas seaward of such zone;
(2) Arrest any person, with or without a
warrant, when he has reasonable cause to
believe that such person has violated this
Act or any regulation issued hereunder.
(3) Execute any warrant or other process
issued by an officer or court of competent
jurisdiction; and
(4) Seize all fish and fishing gear found on
board any vessel which violates the provisions
of this Act or any regulations issued there-
under and any fish taken in violation of this
Act or the regulations issued thereunder
wherever found. Any fish and fishing gear
so seized may be disposed of pursuant to an
order of a court of competent jurisdiction,
or, if perishable in a manner prescribed by
regulations.
(c) State officers authorized pursuant to subsection
(a) to function as Federal law enforcement agents shall
not be considered to be Federal employees of the United
States for the purposes of any laws administered by the
Civil Service Commission.
(d) The Federal District Courts shall have exclusive
jurisdiction over all cases arising under this Act, and
may be brought in the district court of Guam, and in the
case of the Virgin Islands such actions may be brought
in the district court of the Virgin Islands. In the
case of American Samoa, such actions may be brought in
the District Court of the United States for the
District of Hawaii and such court shall have jurisdic-
tion of such actions.
(e) Notwithstanding the provisions of section
2464 of title 28, when a warrant of arrest or other
process in rem is issued in any cause under this section,
the marshal or other officer shall stay the execution
of such process, or discharge any fish seized if the
process has been levied, on receiving from the respond-
ent or claimant of the fish a bond or other surety
satisfactory to the court, conditioned to deliver the
fish seized, if condemned, without impariment in value
or, in the discretion of the court, to pay its
559
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926 LEGAL COMPILATION—SUPPLEMENT n
equivalent value in money or otherwise to answer the decree
of the court in such case. Such bond or other surety
shall be returned to the court and judgment thereon
against both the principal and sureties may be recovered
in event of any breach of the conditions thereof as
determined by the court. In the discretion of the
accused, and subject to the direction of the court,
the fish may be sold for not less than its reasonable
market value and the proceeds of such sale placed in
the registry of the court pending judgment in the case.
STATE JURISDICTION
SEC. 9. Nothing in this Act shall be construed to
(a) restrict the authority of any State to regulate
its citizens regarding fishery matters where such
regulation is not contrary to regulations adopted pursu-
ant to this Act;
(b) extend the jurisdiction of the States to the
natural resources beneath and in the waters beyond the
territorial seas of the United States, or to diminish
their jurisdiction to such resources beneath and in
the waters of the territorial seas of the United States.
APPROPRIATIONS
SEC. 10. There are authorized to be appropriated
such sums as may be necessary to carry out the provisions
of this Act.
SEVERABILITY
SEC. 11. The provisions of this Act shall be
severable and if any part of the Act is declared un-
constitutional or the applicability thereof is held
invalid, the constitutionality of the remainder and
the applicability thereof shall not be affected thereby.
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GUIDELINES AND REPORTS 927
STATEMENT OF PURPOSE AND NEED
This proposed legislation serves two major purposes:
1. It provides conservation and management
authority to regulate United States vessels
for fishing beyond the territorial sea;
2. It authorizes the United States to carry out
its international obligations under inter-
national fisheries agreement.
Experience has shown that unregulated or only partially
regulated fishing almost invariably leads to decline of
the resource, and corresponding economic hardship for
the fisherman. At the present time fishing by United
States vessels within the contiguous zone and on the
high seas is only partially regulated, either by the
States, in which case only the particular State's
citizens are affected, or by international treaty in
those few instances where treaties exist. This proposed
legislation would enable the Federal Government to act
in this regard in a manner which would remedy the
additional problem of "split jurisdiction," which
arises from the welter of jurisdictional zones which
exist today. For instance, seaward from the shoreline,
the oceans are divided into three jurisdictional zones;
the territorial sea, within which fishing is managed
by the States pursuant to the grant of jurisdiction in
the Submerged Land Act (43 U.S.C. 1301-1315); the
contiguous fisheries zone, established by the Act of
October 14, 1966, (16 U.S.C. 1091-1094) which, at
present, is not effectively regulated by any governmental
agency for fisheries management and conservation pur-
poses; and high seas, in which fishing is unregulated
except where treaties apply. In addition, laterally
along the coast, the territorial sea is split into
different jurisdictions by State boundaries. This
multiplicity of jurisdictional zones, each with a
different degree or substance of regulation, creates
an institutional barrier to the efficient management
and utilization of almost all of the important sport
and commercial fisheries in which United States vessels
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928 LEGAL COMPILATION—SUPPLEMENT 11
engage. This legislation would authorize Federal regula-
tion of United States vessels in all waters beyond the
territorial seas for conservation and management purposes,
thus unifying and rationalizing conservation programs.
It is, recognized, however, that the several coastal
States have strong legitimate interests in the manage-
ment of fisheries adjacent to their respective terri-
torial seas. It is also beneficial to promote completely
unified management of our fishery stocks within the
territorial sea, where they are subject to State regula-
tion, and beyond. Therefore, the proposed legislation
offers those States, or groups of cooperating States,
opportunities for direct participation in the management
process, by encouraging them to develop regulations for
fisheries beyond the territorial sea. These regulations,
upon being approved by the Secretary after opportunity
for a public hearing, will be adopted by the Federal
Government as Federal regulations in the contiguous
fisheries zone and in the high seas beyond the zone.
Useful management of the fisheries also requires, however,
that we come to grips with foreign fishing in the high
seas beyond the contiguous fisheries zone. This is done
presently through a series of international agreements.
The proposed legislation contains specific authority for
the United States to carry out its obligations under
international fishery agreements, negotiated to resolve
specific problems. Several agreements have been negoti-
ated on a bilateral basis with Japan and the Soviet
Union since vessels of these countries began fishing
off U. S. coasts. An example is the agreement between
the United States and Japan on the King Crab Fishery
in the eastern Bering Sea, signed November 25, 1964.
These bilateral agreements are based on principles
similar to those in the Convention, i.e., they include
implicit recognition of the special interest of coastal
countries in fishery resources adjacent to their coast.
The proposed legislation will insure that adequate
authority is present for the United States to implement
these and other agreements.
In addition to the bilateral agreements referred to
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GUIDELINES AND REPORTS 929
above, the United States has been a party to the Con-
vention on Fishing and Conservation of the Living
Resources of the High Seas since 1966. There is no
specific legislation for the implementation of the
Convention. This proposed legislation would provide
the specific authority to discharge these treaty
obligations.
The Convention came into force for the United States
on March 20, 1966, after having been ratified by the
required 22 countries. It imposes on all contracting
governments the duty to adopt, or to cooperate with
other contracting governments in adopting, such measures
for their respective nationals as may be necessary to
conserve high seas fishery resources. The Convention
also asserts the special interest of a coastal country
to maintain the productivity of those living resources
which may be found on the high seas adjacent to its
territorial sea, and requires other contracting govern-
ments to recognize that special interest.
Under the Convention, the United States might adopt high
seas conservation measures: (1) on a unilateral basis;
(2) as a result of an agreement between the United
States and other contracting parties; (3) when U. S.
fishermen begin fishing on the high seas in areas
regulated under the Convention by other contracting
governments; and (4) as a result of a decision by an
arbitration committee established under the Convention.
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930 LEGAL COMPILATION—SUPPLEMENT 11
SECTION-BY-SECTION-ANALYSIS
Section 1 of the bill gives a short title for the
proposed legislation.
Section 2 defines certain terms used in the bill. The
definition of "Fish" preserves the jurisdictional break-
down presently existing between the Departments of
Commerce and Interior.
Section 3 sets forth the regulatory authority of- the
Secretary beyond the territorial sea and the procedural
steps necessary for the promulgation of such regulations.
Subsection (a) provides the Secretary with authority
over foreign vessels but only to the extent that the
flag nation has consented to such regulation in an
international fishery agreement. Subsection (b) pro-
vides the Secretary with authority over United States
vessels for three purposes:
(1) to fulfill our international obligations,
(2) for the conservation and management of
fishery resources; and
(3) to regulate the taking of contaminated fish.
Relevant economic and social factors may be taken into
account in any such regulations in order to maximize
the economic and social benefits to be obtained from
our fisheries resources. Provisions have been included
to insure that the views, suggestions, and objections
of interested persons and States will be heard before
any regulations are promulgated by the Secretary of
Commerce, except when the Secretary finds that an
emergency situation requires immediate publication of
a rule.
Section 4 makes it clear that the bill will not super-
sede or invalidate the authority contained in other
Federal statutes. Thus, authority in legislation
implementing other international conventions concerned
with fisheries will continue to be exercised in the
564
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GUIDELINES AND REPORTS 931
manner specified in those acts.
Section 5 provides for the relationship between the
States and the Federal Government in regulation of
the fishery resources beyond the territorial sea.
State regulations may be adopted by the Secretary
as Federal regulations, pursuant to subsection 3(b),
for application to the contiguous fishery zone and
the high seas beyond. Any such regulations become
Federal regulations, and must be promulgated in
accordance with the procedures in subsection 3(c).
Section 6 states the responsibilities of the Secretary
of State under the Convention on Fishing and Conserva-
tion of the Living Resources of the High Seas, including
the cooperation needed between the Secretary of State
and the Secretary of Commerce in order to discharge
the obligations arising under the Convention. It also
authorizes the Secretary of State to engage in negotia-
tions regarding any other international fishery agree-
ment.
Section 7 sets forth unlawful activities and penalties
under the proposed legislation.
Section 8 describes enforcement procedures. These are
similar to those found in other statutes implementing
treaties concerned with fisheries.
Section 9 is a disclaimer clause which recognizes the
authority of a State to continue to regulate its own
citizens on fishery matters where such regulation is
not contrary to regulations issued under this proposed
legislation. This section also makes it clear that
this bill does not change the State's present jurisdic-
tion beyond or within the territorial sea.
Section 10 authorizes the appropriation of such sums as
may be necessary to carry out the provisions of the
proposed legislation.
Section 11 contains severability provisions.
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GUIDELINES AND REPORTS 933
Protecting
Our Natural Heritage
World Heritage
Trust Convention
567
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GUIDELINES AND REPORTS 935
RECOMMENDATION CONCERNING THE PROTECTION,
AT NATIONAL LEVEL, OF THE CULTURAL AND NATURAL HERITAGE
The General Conference of the United Nations Educational,
Scientific and Cultural Organization, meeting in Paris,
at its seventeenth session, from 17 October to 21 Novem-
ber 1972,
Considering that, in a society where living conditions
are changing at an accelerated pace, it is essential
for man's equilibrium and development to preserve
for him a fitting setting in which to live, where he
will remain in contact with nature and the evidences
of civilization bequeathed by past generations, and
that, to this end, it is appropriate to give the cul-
tural and natural heritage an active function in
community life and to integrate into an overall
policy the achievements of our time, the values of
the past and the beauty of nature,
Considering that such integration into social and econom-
ic life must be one of the fundamental aspects of
regional development and national planning at every
level,
Considering that particularly serious dangers engendered
by new phenomena peculiar to our times are threaten-
ing the cultural and natural heritage, which consti-
tute an essential feature of mankind's heritage and
a source of enrichment and harmonious development
for present and future civilization,
Considering that each item of the cultural and natural
heritage is unique and that the disappearance of any
one item constitutes a definite loss and an irrever-
sible impoverishment of that heritage,
Considering that every country in whose territory there
are components of the cultural and natural heritage
has an obligation to safeguard this part of man-
kind ' s heritage and to ensure that it is handed down
to future generations,
Considering that the study, knowledge and protection of
the cultural and natural heritage in the various
countries of the world are conducive to mutual under-
standing among the peoples,
Considering that the cultural and natural heritage forms
an harmonious whole, the components of which are
indissociable,
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936 LEGAL COMPILATION—SUPPLEMENT n
Considering that a policy for the protection of the cul-
tural and natural heritage, thought out and formula-
ted in common, is likely to bring about a continuing
interaction among Member States and to have a decis-
ive effect on the activities of the United Nations
Educational, Scientific and Cultural Organization in
this field,
Noting that the General Conference has already adopted
international instruments for the protection of the
cultural and natural heritage, such as the Recommen-
dation on International Principles Applicable to
Archaeological Excavations (1956) , the Recommendation
concerning the Safeguarding of the Beauty and Charac-
ter of Landscapes and Sites (1962) and the Recommen-
dation concerning the Preservation of Cultural
Property Endangered by Public or Private Works
(1968),
Desiring to supplement and extend the application of the
standards and principles laid down in such recommen-
dations,
Having before it proposals concerning the protection of
the cultural and natural heritage, which question
appears on the agenda of the session as item 23,
Having decided, at its sixteenth session, that this
question should be made the subject of international
regulations, to take the form of a recommendation to
Member States,
Adopts this sixteenth day of November 1972, this Recom-
mendation.
I. DEFINITIONS OF THE CULTURAL
AND THE NATURAL HERITAGE
1. For the purposes of this Recommendation, the follow-
ing shall be considered as "cultural heritage":
monuments: architectural works, works of monumental
sculpture and painting, including cave dwellings and
inscriptions, and elements, groups of elements or
structures of special value from the point of view
of archaeology, history, art or science;
groups of buildings: groups of separate or connected
buildings which, because of their architecture,
their homogeneity or their place in the landscape,
are of special value from the point of view of his-
tory, art or science;
sites: topographical areas, the combined works of man
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GUIDELINES AND REPORTS 937
and of nature, which are of special value by reason
of their beauty or their interest from the archaeo-
logical, historical, ethnological or anthropological
points of view.
2. For the purposes of this Recommendation, the follow-
ing shall be considered as "natural heritage":
natural features consisting of physical and biological
formations or groups of such formations, which are
of special value from the aesthetic or scientific
point of view;
geological and physiographical formations and precisely
delineated areas which constitute the habitat of
species of animals and plants, valuable or threat-
ened, of special value from the point of view of
science or conservation;
natural sites or precisely delineated natural areas of
special value from the point of view of science,
conservation or natural beauty, or in their relation
to the combined works of man and of nature.
II. NATIONAL POLICY
3. In conformity with their jurisdictional and legisla-
tive requirements, each State should formulate, develop
and apply as far as possible a policy whose principal
aim should be to co-ordinate and make use of all scien-
tific, technical, cultural and other resources available
to secure the effective protection, conservation and
presentation of the cultural and natural heritage.
III. GENERAL PRINCIPLES
4. The cultural and natural heritage represents wealth,
the protection, conservation and presentation of which
impose responsibilities on the States in whose terri-
tory it is situated, both vis-a-vis their own nationals
and vis-a-vis the international community as a whole;
Member States should take such action as may be neces-
sary to meet these responsibilities.
5. The cultural or natural heritage should be consid-
ered in its entirety as a homogeneous whole, comprising
not only works of great intrinsic value, but also more
modest items that have, with the passage of time, ac-
quired cultural or natural value.
6. None of these works and none of these items should,
as a general rule, be dissociated from its environment.
7. As the ultimate purpose of protecting, conserving
and presenting the cultural and natural heritage is the
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938 LEGAL COMPILATION—SUPPLEMENT n
development of man. Member States should, as far as pos-
sible, direct their work in this field in such a way
that the cultural and natural heritage may no longer be
regarded as a check on national development but as a
determining factor in such development.
8. The protection, conservation and effective presenta-
tion of the cultural and natural heritage should be con-
sidered as one of the essential aspects of regional
development plans, and planning in general, at the
national, regional or local level.
9. An active policy for the conservation of the cultur-
al and natural heritage and for giving it a place in
community life should be developed. Member States should
arrange for concerted action by all the public and pri-
vate services concerned, with a view to drawing up and
applying such a policy. Preventive and corrective mea-
sures relating to the cultural and natural heritage
should be supplemented by others, designed to give each
of the components of this heritage a function which will
make it a part of the nation's social, economic, scien-
tific and cultural life for the present and future, com-
patible with the cultural or natural character of the
item in question. Action for the protection of the cul-
tural and natural heritage should take advantage of
scientific and technical advances in all branches of
study involved in the protection, conservation and presen-
tation of the cultural or natural heritage.
10. Increasingly significant financial resources should,
as far as possible, be made available by the public
authorities for the safeguarding and presentation of the
cultural and natural heritage.
11. The general public of the area should be associated
with the measures to be taken for protection and conser-
vation and should be called on for suggestions and help,
with particular reference to regard for and surveillance
of the cultural and natural heritage. Consideration
might also be given to the possibility of financial sup-
port from the private sector.
IV. ORGANIZATION OF SERVICES
12. Although their diversity makes it impossible for
all Member States to adopt a standard form of organiza-
tion, certain common criteria should nevertheless be
observed.
Specialized public services
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GUIDELINES AND REPORTS 939
13. With due regard for the conditions appropriate to
each country, Member States should set up in their
territory, wherever they do not already exist, one or
more specialized public services to be responsible for
the efficient discharge of the following functions:
(a) developing and putting into effect measures of all
kinds designed for the protection, conservation and
presentation of the country's cultural and natural
heritage and for making it an active factor in the
life of the community; and primarily, compiling an
inventory of the cultural and natural heritage and
establishing appropriate documentation services;
(b) training and recruiting scientific, technical and
administrative staff as required, to be responsible
for working out identification, protection, con-
servation and integration programmes and directing
their execution;
(c) organizing close co-operation among specialists of
various disciplines to study the technical con-
servation problems of the cultural and natural
heritage;
(d) using or creating laboratories for the study of all
the scientific problems arising in connexion with
the conservation of the cultural and natural
heritage;
(e) ensuring that owners or tenants carry out the
necessary restoration work and provide for the up-
keep of the buildings in the best artistic and
technical conditions.
Advisory bodies
14. The specialized services should work with bodies of
experts responsible for giving advice on the preparation
of measures relating to the cultural and natural heritage.
Such bodies should include experts, representatives of
the major preservation societies, and representatives of
the administrations concerned.
Co-operation among the various bodies
15. The specialized services dealing with the protection,
conservation and presentation of the cultural and natural
heritage should carry out their work in liaison and on an
equal footing with other public services, more particu-
larly those responsible for regional development planning,
major public works, the environment, and economic and
social planning. Tourist development programmes involving
573
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940 LEGAL COMPILATION—SUPPLEMENT n
the cultural and natural heritage should be carefully
drawn up so as not to impair the intrinsic character and
importance of that heritage, and steps should be taken to
establish appropriate liaison between the authorities
concerned.
16. Continuing co-operation at all levels should be
organized among the specialized services whenever large-
scale projects are involved, and appropriate co-ordinating
arrangements made so that decisions may be taken in con-
cert, taking account of the various interests involved.
Provision should be made for joint planning from the start
of the studies and machinery developed for the settlement
of conflicts.
Competence of central, federal, regional and local bodies
17. Considering the fact that the problems involved in
the protection, conservation and presentation of the
cultural and natural heritage are difficult to deal with,
calling for special knowledge and sometimes entailing
hard choices, and that there are not enough specialized
staff available in this field, responsibilities in all
matters concerning the devising and execution of pro-
tective measures in general should be divided among
central or federal and regional or local authorities on
the basis of a judicious balance adapted to the situation
that exists in each State.
V. PROTECTIVE MEASUP>ES
18. Member States should, as far as possible, take all
necessary scientific, technical and administrative, legal
and financial measures to ensure the protection of the
cultural and natural heritage in their territories. Such
measures should be determined in accordance with the leg-
islation and organization of the State.
Scientific and technical measures
19. Member States should arrange for careful and con-
stant maintenance of their cultural and natural heritage
in order to avoid having to undertake the costly opera-
tions necessitated by its deterioration; for this pur-
pose, they should provide for regular surveillance of the
components of their heritage by means of periodic in-
spections. They should also draw up carefully planned
programmes of conservation and presentation work, gradu-
ally taking in all the cultural and natural heritage, de-
pending upon the scientific, technical and financial means
at their disposal.
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GUIDELINES AND REPORTS 941
20. Any work required should be preceded and accompanied
by such thorough studies as its importance may necessi-
tate. Such studies should be carried out in co-operation
with or by specialists in all related fields.
21. Member States should investigate effective methods
of affording added protection to those components of the
cultural and natural heritage that are threatened by
unusually serious dangers. Such methods should take
account of the interrelated scientific, technical and
artistic problems involved and make it possible to deter-
mine the treatment to be applied.
22. These components of the cultural and natural heri-
tage should, in addition, be restored, wherever appro-
priate, to their former use or given a new and more suit-
able function, provided that their cultural value is not
thereby diminished.
23. Any work done on the cultural heritage should aim at
preserving its traditional appearance, and protecting it
from any new construction or remodelling which might im-
pair the relations of mass or colour between it and its
surroundings.
24. The harmony established by time and man between a
monument and its surroundings is of the greatest im-
portance and should not, as a general rule, be disturbed
or destroyed. The isolation of a monument by demolishing
its surroundings should not, as a general rule, be
authorized; nor should the moving of a monument be con-
templated save as an exceptional means of dealing with a
problem, justified by pressing considerations.
25. Member States should take measures to protect their
cultural and natural heritage against the possible harmful
effects of the technological developments characteristic
of modern civilization. Such measures should be designed
to counter the effects of shocks and vibrations caused by
machines and vehicles. Measures should also be taken to
prevent pollution and guard against natural disasters and
calamities, and to provide for the repair of damage to
the cultural and natural heritage.
26. Since the circumstances governing the rehabilitation
of groups of buildings are not everywhere identical, Mem-
ber States should provide for a social science inquiry in
appropriate cases, in order to ascertain precisely what
are the social and cultural needs of the community in
which the group of buildings concerned is situated. Any
575
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942 LEGAL COMPILATION—SUPPLEMENT ir.
rehabilitation operation should pay special attention to
enabling man to work, to develop and to achieve fulfil-
ment in the restored setting.
27. Member States should undertake studies and research
on the geology and ecology of items of the natural heri-
tage, such as park, wildlife, refuge or recreation areas,
or other equivalent reserves, in order to appreciate
their scientific value, to determine the impact of visitor
use and to monitor interrelationships so as to avoid
serious damage to the heritage and to provide adequate
background for the management of the fauna and flora.
28. Member States should keep abreast of advances in
transportation, communication, audio-visual techniques,
automatic data-processing and other appropriate tech-
nology, and of cultural and recreational trends, so that
the best possible facilities and services can be pro-
vided for scientific study and the enjoyment of the
public, appropriate to the purpose of each area, without
deterioration of the natural resources.
Administrative measures
29. Each Member State should draw up, as soon as possi-
ble, an inventory for the protection of its cultural and
natural heritage, including items which, without being of
outstanding importance, are inseparable from their
environment and contribute to its character.
30. The information obtained by such surveys of the
cultural and natural heritage should be collected in a
suitable form and regularly brought up to date.
31. To ensure that the cultural and natural heritage is
effectively recognized at all levels of planning. Member
States should prepare maps and the fullest possible docu-
mentation covering the cultural and natural property in
question.
32. Member States should give thought to finding suita-
ble uses for groups of historic buildings no longer
serving their original purpose.
33„ A plan should be prepared for the protection, con-
servation, presentation and rehabilitation of groups of
buildings of historic and artistic interest. It should
include peripheral protection belts, lay down the condi-
tions for land use, and specify the buildings to be pre-
served and the conditions for their preservation. This
plan should be incorporated into the overall town and
country planning policy for the areas concerned.
576
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GUIDELINES AND REPORTS 943
34. Rehabilitation plans should specify the uses to
which historic buildings are to be put, and the links
there are to be between the rehabilitation area and the
surrounding urban development„ When the designation of a
rehabilitation area is under consideration, the local
authorities and representatives of the residents of the
area should be consulted.
35. Any work that might result in changing the existing
state of the buildings in a protected area should be sub-
ject to prior authorization by the town and country
planning authorities, on the advice of the specialized
services responsible for the protection of the cultural
and natural heritage.
36. Internal alterations to groups of buildings and
the installation of modern conveniences should be allowed
if they are needed for the well-being of their occupants
and provided they do not drastically alter the real
characteristic features of ancient dwellings.
37. Member States should develop short- and long- range
plans, based on inventories of their natural heritage, to
achieve a system of conservation to meet the needs of
their countries.
38. Member States should provide an advisory service to
guide non-governmental organizations and owners of land
on national conservation policies consistent with the
productive use of the land.
39. Member States should develop policies and programmes
for restoration of natural areas made derelict by
industry, or otherwise despoiled by man's activities.
Legal measures
40. Depending upon their importance, the components of
the cultural and natural heritage should be protected,
individually or collectively, by legislation or regula-
tions in conformity with the competence and the legal
procedures of each country.
41. Measures for protection should be supplemented to
the extent necessary by new provisions to promote the
conservation of the cultural or natural heritage and to
facilitate the presentation of its components, To that
end, enforcement of protective measures should apply to
individual owners and to public authorities when they are
the owners of components of the cultural and natural
heritage.
42. No new building should be erected, and no demolition,
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944 LEGAL COMPILATION—SUPPLEMENT n
transformation, modification or deforestation carried out,
on any property situated on or in the vicinity of a pro-
tected site, if it is likely to affect its appearance,
without authorization by the specialized services.
43. Planning legislation to permit industrial develop-
ment, or public and private works should take into
account existing legislation on conservation. The
authorities responsible for the protection of the cul-
tural and natural heritage might take steps to expedite
the necessary conservation work, either by making finan-
cial assistance available to the owner, or by acting in
the owner's place and exercising their powers to have the
work done, with the possibility of their obtaining reim-
bursement of that share of the costs which the owner
would normally have paid.
44. Where required for the preservation of the property,
the public authorities might be empowered to expropriate
a protected building or natural site subject to the terms
and conditions of domestic legislation.
45. Member States should establish regulations to control
bill-posting, neon signs and other kinds of advertisement,
commerical signs, camping, the erection of poles, pylons
and electricity or telephone cables, the placing of
television aerials, all types of vehicular traffic and
parking, the placing of indicator panels, street furni-
ture, etc., and, in general, everything connected with
the equipment or occupation of property forming part of
the cultural and natural heritage.
46. The effects of the measures taken to protect any
element of the cultural or natural heritage should con-
tinue regardless of changes of ownership. If a protected
building or natural site is sold, the purchaser should
be informed that it is under protection.
47. Penalties or administrative sanctions should be
applicable, in accordance with the laws and constitutional
competence of each State, to anyone who wilfully destroys,
multilates or defaces a protected monument, group of
buildings or site, or one which is of archaeological,
historical or artistic interest. In addition, equipment
used in illicit excavation might be subject to confisca-
tion.
48. Penalties or administrative sanctions should be
imposed upon those responsible for any other action
detrimental to the protection, conservation or
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GUIDELINES AND REPORTS 945
presentation of a protected component of the cultural or
natural heritage, and should include provision for the
restoration of an affected site to its original state in
accordance with established scientific and technical
standards„
Financial measures
49. Central and local authorities should, as far as
possible, appropriate, in their budgets, a certain per-
centage of funds, proportionate to the importance of the
protected property forming part of their cultural or
natural heritage, for the purposes of maintaining, con-
serving and presenting protected property of which they
are the owners, and of contributing financially to such
work carried out on other protected property by the
owners, whether public bodies or private persons.
50. The expenditure incurred in protecting, conserving
and presenting items of the privately-owned cultural and
natural heritage should, so far as possible, be borne
by their owners or users.
51. Tax concessions on such expenditures, or grants or
loans on favourable terms, could be granted to private
owners of protected properties, on condition that they
carry out work for the protection, conservation, presen-
tation and rehabilitation of their properties in
accordance with approved standards.
52. Consideration should be given to indemnifying, if
necessary, owners of protected cultural and natural
areas for losses they might suffer as a consequence of
protective programmes,,
53. The financial advantages accorded to private owners
should, where appropriate, be dependent on their obser-
vance of certain conditions laid down for the benefit
of the public, such as their allowing access to parks,
gardens and sites, tours through all or parts of
natural sites, monuments or groups of buildings, the
taking of photographs, etc.
54. Special funds should be set aside in the budgets of
public authorities for the protection of the cultural
and natural heritage endangered by large-scale public or
private works.
55. To increase the financial resources available to
them. Member States may set up one or more "Cultural
and Natural Heritage Funds", as legally established
public agencies, entitled to receive private gifts,
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946 LEGAL COMPILATION—SUPPLEMENT n
donati°ns and bequests, particularly from industrial and
commercial firms.
56. Tax concessions could also be granted to those
making gifts, donations or bequests for the acquisition,
restoration or maintenance of specific components of the
cultural and natural heritage.
57. In order to facilitate operations for rehabilitation
of the natural and cultural heritage. Member States might
make special arrangements, particularly by way of loans
for renovation and restoration work, and might also make
the necessary regulations to avoid price rises caused by
real-estate speculation in the areas under consideration.
58. To avoid hardship to the poorer inhabitants conse-
quent on their having to move from rehabilitated buildings
or groups of buildings, compensation for rises in rent
might be contemplated so as to enable them to keep their
accommodation. Such compensation should be temporary
and determined on the basis of the income of the parties
concerned, so as to enable them to meet the increased
costs occasioned by the work carried out.
59. Member States might facilitate the financing of
work of any description for the benefit of the cultural
and natural heritage, by instituting "Loan Funds", sup-
ported by public institutions and private credit estab-
lishments, which would be responsible for granting loans
to owners at low interest rates and with repayment spread
out over a long period.
VI. EDUCATIONAL AND CULTURAL ACTION
60. Universities, educational establishments at all
levels and life-long education establishments should
organize regular courses, lectures, seminars, etc., on
the history of art, architecture, the environment and
town planning.
61. Member States should undertake educational compaigns
to arouse widespread public interest in, and respect for,
the cultural and natural heritage. Continuing efforts
should be made to inform the public about what is being
and can be done to protect the cultural or natural
heritage and to inculcate appreciation and respect for
the values it enshrines. For this purpose, all media of
information should be employed as required.
62. Without overlooking the great economic and social
value of the cultural and natural heritage, measures
should be taken to promote and reinforce the eminent
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GUIDELINES AND REPORTS 947
cultural and educational value of that heritage, fur-
nishing as it does the fundamental motive for protecting,
conserving and presenting it.
63. All efforts on behalf of components of the cultural
and natural heritage should take account of the cultural
and educational value inherent in them as representative
of an environment, a form of architecture or urban design
commensurate with man and on his scale.
64. Voluntary organizations should be set up to encou-
rage national and local authorities to make full use of
their powers with regard to protection, to afford them
support and, if necessary, to obtain funds for them;
these bodies should keep in touch with local historical
societies, amenity improvement societies, local develop-
ment committees and agencies concerned with tourism, etc.,
and might also organize visits to, and guided tours of,
different items of the cultural and natural heritage
for their members.
65c Information centres, museums or exhibitions might be
set up to explain the work being carried out on compo-
nents of the cultural and natural heritage scheduled for
rehabilitation.
VII. INTERNATIONAL CO-OPERATION
66. Member States should co-operate with regard to the
protection, conservation and presentation of the cultural
and natural heritage, seeking aid, if it seems desirable,
from international organizations, both intergovernmental
and non-governmental. Such multilateral or bilateral
co-operation should be carefully co-ordinated and should
take the form of measures such as the following:
(a) exchange of information and of scientific and
technical publications;
(b) organization of seminars and working parties on
particular subjects;
(c) provision of study and travel fellowships, and of
scientific, technical and administrative staff,
and equipment;
(d) provision of facilities for scientific and tech-
nical training abroad, by allowing young research
workers and technicians to take part in archi-
tectural projects, archaeological excavations and
the conservation of natural sites;
(e) co-ordination, within a group of Member States, of
large-scale projects involving conservation,
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948 LEGAL COMPILATION—SUPPLEMENT n
excavations, restoration and rehabilitation work,
with the object of making the experience gained
generally available.
The foregoing is the authentic text of the Recommendation
duly adopted by the General Conference of the United
Nations Educational, Scientific and Cultural Organization
during its seventeenth session, which was held in Paris
and declared closed the twenty-first day of November 1972e
IN FAITH WHEREOF we have appended our signatures this
twenty-third day of November 1972.
The President of the General Conference
TORU HAGUIWARA
The Director-General
RENE MAHEU
Certified copy
Paris,
Director, Office of International
Standards and Legal Affairs,
United Nations Educational,
Scientific and Cultural Organization
582
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GUIDELINES AND REPORTS 949
Protecting
Our Natural Heritage
Weather Modification
583
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GUIDELINES AND REPORTS 951
WEATHER MODIFICATION
Intentional modification of the weather first
achieved widespread scientific recognition a quarter of
a century ago. Since then the state-of-the-art has ad-
vanced significantly in sophistication and predictability.
Although much remains to be learned about influencing the
weather, some relatively reliable techniques are now in
widespread commercial use.
Weather modification can provide various economic
and social benefits -- such as augmenting the rainfall
needed by farmers or clearing hazardous fog from an air-
port — but it also has the potential, if used unwisely
or incompetently, for endangering persons, property, and
the environment. Moreover, private weather modification
activities may interfere with Federal weather modifica-
tion research projects.
Under Public Law 92-205, enacted at the Administra-
tion's request in 1971, non-Federal weather modification
projects must be reported in advance to the National
Oceanic and Atmospheric Administration in the Department
of Commerce, state? have the responsibility and oppor-
tunity for preventing potential adverse effects of weath-
er modification, but the Federal information-gathering
program can be used to assist the States.
The President has directed the Secretary of Commerce
to expand the Department's regulations under Public Law
92-205 to provide for Federal notification, including re-
commendations when appropriate, to operators and State
officials when a report discloses that a proposed project
may endanger persons, property, or the environment or the
success of a Federal research project. These notifica-
tions from the Commerce Department will be available to
the public.
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!!,a Environmental Protection Agenc
;>..-7inrs V, Library ""^
230 South Dearborn Street
Chicago, U»nol< 60604
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